Morin: Is that an admission that the harm-based justification for prohibition no longer applies?
Walsh: It’s certainly evidence that it’s applied inconsistently and arbitrarily. From a human-rights-based perspective, everybody’s rights should be protected equally unless there’s a good reason why you're treating a group differently. I don’t think that saying “culturally and historically this is what we’ve always done” is legitimate. You can’t say that about racial discrimination, for instance.
Morin: So, the current argument is that illegal drugs are bad because they’re illegal?
Walsh: Basically, and it goes beyond that. We have a recently elected Conservative government in the U.K., and they’ve produced something called the Psychoactive Substances Act. It’s a piece of legislation that renders it unlawful to trade in any substance capable of producing a psychoactive effect of any kind regardless of harm or benefit. If you read the text of the Act, it’s extraordinary, most notably its lack of any reference to the concept of harm.
Morin: How do they define “psychoactive” exactly?
Walsh: Any substance that alters your emotional state or mental functioning. It openly states that we [the government] think we have the right to stop you from altering your psychological state. It’s strange that’s something they believe they should have the power to do.
Morin: I assume there are exemptions for alcohol, tobacco, and caffeine.
Walsh: Yes, for culturally accepted substances. This legislation is potentially so broad that prior to its enactment the government felt compelled to write to bishops to reassure them that the incense used in church services would not become illegal, despite its being mildly psychoactive.
Morin: What does that kind of blanket ban indicate to you in terms of legislative intent?
Walsh: The tradition in English law was always to intervene as little as possible. That concept has been dying in more recent years. This reverses that presumption, replacing it with an assumption that you can’t do something unless the government explicitly says you can. This violates classic liberalism, where you have the concept of limitations of power, as most famously espoused by legal theorist John Stuart Mill. How much power can the state legitimately hold over the individual? Mill laid down the principle as prevention of harm to others. So, from that perspective, the kind of paternalism we’re seeing, both in the operation of the Misuse of Drugs Act and the fundamental aims of this new piece of legislation is illegitimate.
Morin: Paternalism in terms of protecting people from themselves?
Walsh: Exactly. It's inherently infantilizing. Even if you could make a case for that kind of paternalism, how can imprisonment possibly be for our own good? In the majority of cases, the primary and often only harm being suffered by the individual is due to the punishment imposed rather than from the substance use itself.