Indiana Law Journal

Document Type


Publication Date

Winter 2010

Publication Citation

85 Indiana Law Journal 279 (2010)


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 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. 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 and demonstrates 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 John Stuart Mill's harm principle in the utilitarian tradition, or, in the nonconsequentialist tradition, to the respect for personhood that was well described by the Supreme Court in its Lawrence v. Texas opinion. Both arguments are based on principles ofj ustice that are uncontroversial in other contexts.