Eric Sterling on Marijuana and the Boston Marathon Bombers
From Justice and Drugs:
The Washington Post profiled the Tsarnaev family on its front page on April 28, 2013. Both of the Tsarnaev brothers are reported to have been frequent marijuana smokers, although the older brother gave it up several years ago. Perhaps what is most striking about the reportage is that for every person interviewed, the brothers’ marijuana use is held out as one of the strongest signs of their other-wise normal “American-ness.” It seems everyone who knew them characterized their embrace of pot smoking as evidence of their integration into the norms of American student life in high school and college — even if they sometimes were obnoxious neighbors throwing loud, drunken parties. All the statements flatly contradict the myths of 1930s anti-marijuana ideology still repeated in law enforcement anti-drug classes that marijuana use is a tip-off to or cause of deep deviance. To the contrary, to those who knew Tamerlan, they saw his changing personality to the tortured soul who goes off to Dagestan in the fact that he stops using Cannabis. This description of marijuana use as the mark of the well-adjusted young American adult is remarkable in several ways.
The prohibition on the use of marijuana is itself immoral not only because it infringes on the inherent autonomy of individuals to make choices that are not harmful to others (which is true), but is immoral because the state lacks the moral authority to deprive liberty for conduct that is not wrongful. This is a subtle but important distinction.
There is not yet an American consensus that people have the “right” to use marijuana the way there is a consensus that there is a First Amendment right to choose a book to buy in a bookstore. But there is a consensus, I think, that the government has no authority to punish behavior that is not wrongful because the U.S. and state constitutions never convey such authority to the government. For example, if meat-eaters, lets say elected a majority of the legislature, they would not have the constitutional power to provide for imprisonment of persons who eat soybean-based artificial meat. No matter what kind of health or safety rationale was proposed to ban soybean meat, the eating such products is not wrongful and cannot constitutionally be punished.
What the conversation about marijuana in the Tsarnaev case tell us is marijuana use is widespread and normal, and not evidence of or suggestive of immoral or violent behavior — indeed, the opposite!
Behavior that the public does not believe is wrong, cannot be punished in the name of that public. Courts should be able to rule when a law no longer enjoys a moral consensus, they have the power to invalidate the continued enforcement of that law if that enforcement deprives people of liberty by subjecting them to imprisonment.
Image via Eric Sterling