Should drugs be decriminalized?

Yes. I would still refuse to restore criminal penalties for possession. The concrete principle is simple: in a free society, adults are responsible for their own choices, including choices that are harmful. The proper question is not whether drug use has costs. Of course it does. The proper question is whether criminal prohibition reduces those costs on net. My answer is no. If overdose deaths doubled after decriminalization, that would be a grave fact. But it would not by itself prove that recriminalization is justified. We do not judge a policy by one visible category of harm while ignoring the less visible harms it prevents or creates. Prohibition also kills: through adulterated drugs of uncertain potency, through black-market violence, through corruption, through the spread of disease in hidden markets, and through imprisonment that destroys lives on a mass scale. The principle is the same one we apply elsewhere. We do not ban alcohol because some drink themselves to death. We do not jail people for overeating because gluttony shortens lives. Liberty is not costless. The relevant comparison is between two systems of social control, each with victims. If Mr. Szasz says this chiefly as a matter of self-ownership, I agree with his conclusion, though I put more weight on the practical consequences of prohibition. If Foucault wishes to describe the machinery of power, fine. But the decisive point is more elementary: prohibition is a cure worse than the disease. A bad outcome after decriminalization would call for education, treatment, and honest labeling—not renewed criminalization.

Yes, I would still refuse to restore criminal penalties. But I would refuse the question in the form in which it is posed, because it smuggles in the very mechanism I wish to contest: that every collective danger must immediately authorize a penal response. The concrete principle is this: one must not convert a problem of risk, suffering, and conduct into an opportunity for the indefinite extension of police power. Modern power does not merely repress; it produces its objects. “The drug addict,” “the dangerous subject,” “the population at risk” — these are not neutral descriptions. They are points of insertion for surveillance, medicalization, judicial intervention. If overdose deaths doubled, that would be intolerable. But the question is: intolerable for whom, and in the service of what apparatus? Recriminalization would not simply “save lives.” It would reactivate the old dispositif: arrests, files, expert assessments, carceral selection concentrated on the poor, the marginal, the already supervised. One would punish bodies in order to reassure society. Here I would press Friedman. He is right against prohibition, but too quick to oppose liberty to the state as if power were located only in law. The issue is broader: decriminalization must be accompanied by practices that reduce danger without fabricating delinquency — safe supply, knowledge, care without coercion, spaces not organized by the police. Deaths are tragic. But punishment is not a neutral instrument for preventing tragedy. It is a political technology, and one that has already done immense damage under the sign of health and order.

Yes. I would still refuse to restore criminal penalties. The principle is not obscure. The state has no right to punish competent adults for what they put into their own bodies. A free person owns his body; a slave does not. Drug prohibition is the legal codification of the idea that the citizen is a child and the state his parent. I reject that doctrine. The moderator asks what deaths I would “accept as the price of freedom.” I would answer: freedom always has a price, but coercion has a price too, and it is usually concealed behind therapeutic and legal euphemisms. Prohibition does not abolish drug use. It transforms it into crime, adulteration, contagion, bribery, imprisonment, and the moral infantilization of the public. When we punish self-regarding conduct, we do not protect liberty; we abolish it. Friedman is right to emphasize the practical evils of prohibition. But even if those evils were fewer than he says, my objection would remain. The decisive issue is not efficiency. It is authority. Whether the state may jail a person for ingesting a substance is a question of political ethics, not pharmacology. And I would caution Foucault: he is right that punishment manufactures categories and extends control, but one need not speak of “dispositifs” to see the plain fact. Calling drug use a crime or an illness are two versions of the same lie. In one, the person is a criminal. In the other, a patient. In both, he is denied responsibility. I insist he is a person, and therefore entitled to choose—even disastrously.

The greater danger is preserving a paternalistic state that jails people for their own consumption choices. That danger is not abstract. It is concrete, cumulative, and, in my judgment, far larger than the specter of “predatory markets” invoked to defend prohibition. Why? Because prohibition itself creates the most predatory market of all: a black market. It hands the trade to criminals, raises profit margins by legal risk, invites violence as a substitute for contract, and guarantees the poorest neighborhoods get the worst of it. If you want to know what preys on the poor, look first at a system that gives them impure drugs, no legal recourse, and a police record. Now, I would not romanticize decriminalization. Some firms may behave badly. Some people will make destructive choices. But the answer to bad choices is not to put government in charge of our stomachs, our veins, and our consciences. We learned that from alcohol prohibition. The cure was worse than the disease. Here I part company slightly from Foucault. He is right that power extends beyond statute books. But that is an argument for limiting coercive institutions, not for obscuring the central point: criminal law is the sharpest instrument the state possesses, and it has been used disastrously. And with Szasz I agree that adults must bear responsibility. I simply add that free responsibility works better than forced virtue. Legitimate institutions? Honest information, voluntary treatment, quality control, and civil society. Not prisons. Not a therapeutic police state.

The greater danger is clearly the preservation of a paternalistic state. Not because markets are innocent—they never are—but because the carceral management of drugs has already shown us what it does: it selects, marks, and punishes certain populations while speaking in the language of protection. One must be careful here. “Predatory markets” are presented as if they were the natural opposite of state intervention. But prohibition itself is a market-making intervention. It does not suppress exchange; it organizes it under conditions of illegality, scarcity, impurity, and permanent exposure to violence. The poor do not merely suffer from addiction; they are made into the privileged objects of police attention, judicial inscription, medical suspicion. So I agree with Friedman against prohibition, but not with his tendency to treat the problem as a simple opposition between market and state. The market can also be a technique for administering bodies. And I agree with Szasz that criminalization infantilizes the subject, but I would add: the very figure of “the addict” has been constituted within a network of expertise and control that exceeds law alone. If drugs are decriminalized, the task is not to celebrate laissez-faire. It is to construct non-penal forms of assistance: accurate knowledge, safe supply, places of care not linked to arrest, and practices that reduce harm without demanding confession, normalization, or submission. The poor need less guardianship, not more. What is intolerable is not only overdose. It is a regime that cages people, classifies them, and calls this care.

The greater danger is preserving the paternalistic state. That is the permanent danger. “Predatory markets” are real enough, but prohibition is itself the most predatory market-maker. It criminalizes demand, corrupts supply, and then pretends surprise when gangsters prosper and the poor suffer. Let us speak plainly. The poor are already the principal victims of drug prohibition—not only of drugs. They are searched, arrested, prosecuted, imprisoned, and psychiatrized. The state first deprives them of liberty and then calls this help. This is the oldest political fraud: coercion disguised as care. Friedman is right that black markets are creatures of prohibition. On that point, economics confirms morality. But I do not rest my case on efficiency. If a free market in drugs produced more misery than its advocates expected, that would still not entitle the state to treat adults as wards. Rights are not revocable because officials can exhibit corpses. Foucault is right to distrust the machinery of surveillance. But I would put the matter less theatrically. The issue is not merely that institutions “produce subjects.” It is that they deny personhood. The drug user is redefined as either criminal or patient. In both roles he is stripped of responsibility and liberty. What institutions are legitimate? Only those grounded in consent: honest labeling, voluntary treatment, private charity, mutual aid, medical care by contract, education without propaganda. Not courts. Not cages. Not compulsory “rehabilitation.” A person may ruin himself. That is tragic. But to authorize the state to imprison him for that possibility is to ruin liberty itself.

If overdose deaths rose after decriminalization, the principle I would refuse to compromise first is resistance to coercive state power over peaceful adults. Put differently: I would not restore prohibition. Why? Because we know what that remedy does. It does not eliminate demand. It shifts supply into criminal hands, degrades quality, raises potency uncertainty, breeds violence, and fills prisons. If a policy fails on its own terms and produces large collateral damage, doubling down on it is not seriousness; it is superstition. Now, I do not put this in quite the absolutist language Szasz does. Consequences matter greatly. If deaths rise, the proper response is to ask why: adulteration, ignorance, lack of treatment, barriers to medical care, perverse regulation? Then address those directly with non-coercive means—truthful information, legal quality control, easier access to voluntary treatment, and emergency medical measures. A free society is not a society that does nothing. It is a society that distinguishes helping from punishing. And here I would answer Foucault as well. He is right that control can migrate from the prison to the clinic or the registry. So the line must be drawn clearly: no criminal penalties for use, and no surveillance apparatus smuggled in under the banner of public health. The test of principle is what you do when the headlines turn ugly. My principle is simple: bad outcomes do not justify giving government a power it will abuse, expand, and never willingly surrender.

If overdose deaths rose, the principle I would refuse to compromise first is resistance to the extension of state control over bodies in the name of salvation. I would not return, under the pressure of panic, to the old rite by which power manufactures a danger and then presents itself as the only cure. Let me be precise. I do not defend “market freedom” as such. Friedman is right to reject prohibition; he is wrong if he imagines the market as a space simply opposed to power. Markets, too, classify, incite, segment populations, distribute exposures to death. Nor do I speak of “absolute bodily autonomy” in Szasz’s juridical-moral language, as though the subject stood fully formed before power. The individual who is said to “choose” drugs is already caught in dispositifs of poverty, medicine, policing, and desire. So what must not be compromised? This: one must not re-legitimize the penal-surveillance apparatus. No recriminalization, no exceptional policing, no mandatory registries, no compulsory treatment disguised as care. If deaths rise, the response must be to transform the conditions in which drugs circulate: safe supply, non-judicial care, knowledge not tied to confession, assistance detached from punishment. Szasz is correct to refuse coercion, but he remains too attached to the sovereign fiction of the autonomous chooser. Friedman is correct about the disasters of prohibition, but insufficiently attentive to how “public health” and the market can become relays of the same disciplinary power. The first principle, then, is this: do not allow death to become the alibi for a new investment of power in vulnerable lives.

If overdose deaths rose, I would refuse to compromise bodily autonomy first. Not “market freedom.” Not because markets are unimportant, but because the right at stake is prior to economics. A free man owns his body. The state does not. That is the issue. Friedman is correct that recriminalization would revive the black market and its predictable corruptions. But my objection is more radical. Even if prohibition reduced deaths, it would remain morally illegitimate. The state has no more right to punish a person for injecting heroin than for refusing insulin, climbing mountains, or eating himself into diabetes. Self-regarding vice is not a crime. Foucault, as usual, dissolves responsibility into a mist of “discourses” and “dispositifs.” I reject that. To deny autonomy because choices are conditioned is to deny autonomy altogether. Human action is always situated. That does not nullify agency. It is precisely because persons are responsible that they must be free. What follows if deaths rise? Not prisons. Not registries. Not compulsory treatment. Not psychiatric confiscation of liberty in medical dress. The proper response is voluntary: truthful education, honest labeling, antidotes available without harassment, medical help by consent, and private or communal aid offered as service, not imposed as control. A society that imprisons people for what they put into their own bodies has already overdosed—on paternalism. Rights are tested by hard cases. If they vanish when the numbers worsen, they were never rights at all.