Liberty Lost: The Moral Case for Marijuana Law Reform

21 Pages Posted: 23 Mar 2009 Last revised: 4 Sep 2009

See all articles by Eric D. Blumenson

Eric D. Blumenson

Suffolk University Law School

Eva S. Nilsen

Boston University School of Law

Date Written: March 21, 2009

Abstract

Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700,000 people are arrested annually for simple marijuana possession, a small but significant proportion of the one hundred million Americans who have committed the same crime. In this essay, we present a civil libertarian case for repealing marijuana possession crimes. We put forward two arguments, corresponding to the two distinct liberty concerns implicated by laws that both ban marijuana use and punish its users. The first argument opposes criminalization, demonstrating that marijuana use does not constitute the kind of wrongful conduct that is a prerequisite for just punishment. The second argument demonstrates that even in the absence of criminal penalties, prohibition of marijuana use violates a moral right to exercise autonomy in personal matters - a corollary to Mill's harm principle in the utilitarian tradition, or, in the non-consequentialist tradition, to the respect for personhood that was well described by the Supreme Court in its recent Lawrence v. Texas opinion. Both arguments are based on principles of justice that are uncontroversial in other contexts.

Keywords: criminal law, liberty, punishment, marijuana, drug war, civil liberties, retribution

Suggested Citation

Blumenson, Eric and Nilsen, Eva S., Liberty Lost: The Moral Case for Marijuana Law Reform (March 21, 2009). Suffolk University Law School Research Paper No. 09-20; Indiana Law Journal, Vol. 85, 2009. Available at SSRN: https://ssrn.com/abstract=1366426

Eric Blumenson (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States
(617) 305-1967 (Phone)
(617) 305-3087 (Fax)

Eva S. Nilsen

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4255 (Phone)

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