Psychedelics and cognitive liberty: Reimagining drug policy through the prism of human rights

This legal commentary (2016) advocates for drug-policy reform on the grounds of a liberal rights-based approach that invokes the notion of cognitive liberty as a crucial component of freedom of thought, enshrined within Article 9 of the European Convention on Human Rights (ECHR). On this basis, it is proposed that drug policy should move beyond harm-reduction strategies and calling for exemptions from criminalization on therapeutic or religious grounds, and establish a right to control one’s own consciousness via psychoactive substances, and apply policies that maximize their benefits.

Abstract

“This paper reimagines drug policy – specifically psychedelic drug policy – through the prism of human rights. Challenges to the incumbent prohibitionist paradigm that have been brought from this perspective to date – namely by calling for exemptions from criminalisation on therapeutic or religious grounds – are considered, before the assertion is made that there is a need to go beyond such reified constructs, calling for an end to psychedelic drug prohibitions on the basis of the more fundamental right to cognitive liberty. This central concept is explicated, asserted as being a crucial component of freedom of thought, as enshrined within Article 9 of the European Convention on Human Rights (ECHR). It is argued that the right to cognitive liberty is routinely breached by the existence of the system of drug prohibition in the United Kingdom (UK), as encoded within the Misuse of Drugs Act 1971 (MDA). On this basis, it is proposed that Article 9 could be wielded to challenge the prohibitive system in the courts. This legal argument is supported by a parallel and entwined argument grounded in the political philosophy of classical liberalism: namely, that the state should only deploy the criminal law where an individual’s actions demonstrably run a high risk of causing harm to others. Beyond the courts, it is recommended that this liberal, rights-based approach also inform psychedelic drug policy activism, moving past the current predominant focus on harm reduction, towards a prioritization of benefit maximization. How this might translate in to a different regulatory model for psychedelic drugs, a third way, distinct from the traditional criminal and medical systems of control, is tentatively considered. However, given the dominant political climate in the UK – with its move away from rights and towards a more authoritarian drug policy – the possibility that it is only through underground movements that cognitive liberty will be assured in the foreseeable future is contemplated.”

Author: Charlotte Walsh

Summary

Psychedelics are substances that alter consciousness when ingested. Human beings have taken psychedelics for a multitudinous medley of reasons, many of which are criminalised through the global system of drug prohibition.

This paper argues for the decriminalisation of psychedelics using human rights instruments, and suggests that this should inform both defences raised in court and the discourse of drug policy activism more broadly.

The author is against drug prohibition in toto, but the edifice of prohibition will crumble incrementally, piece by piece, and the arguments made herein are merely one suggested inroad.

The story so far

The rights-based framework is used by psychedelic users to challenge the prohibitionist regime in court, and this is almost exclusively constructed around pleas for therapeutic or religious exemption from prohibition.

In the case of R v Quayle (2005), the Court of Appeal heard a number of challenges to the prohibition of cannabis on therapeutic grounds. The appellants argued that the prohibition of cannabis breached their right to privacy.

The Court of Appeal did not make it clear whether they agreed that Article 8 was engaged, but stopped short of ruling upon which of the potentially legitimate qualifiers might apply here.

The court’s decision would involve an evaluation of the medical and scientific evidence, a greater understanding of the nature and progress of the tests of cannabis, and a recognition that the government is entitled to form overall policy views.

The courts should have carried out a balancing exercise when determining whether or not to apply the qualifiers, but instead took an overly cautious approach, which has led to unjustified reading of subsequent cases as having closed such arguments down.

The leading authority in the UK on pleas for religious exemptions from prohibition is Taylor [2001] EWCA Crim 2263, which concerned Rastafarian cannabis usage. The prosecution conceded that Rastafarianism is a religion and did not contest that Taylor was supplying cannabis for religious purposes.

The court had to decide if there was a pressing social need to interfere with Taylor’s freedom of religion, and if so, whether the means adopted constituted a proportionate response.

The court took the view that the existence of the Drug Conventions was powerful evidence of a crossnational consensus that an unqualified ban on cannabis was necessary to combat the dangers arising from this psychoactive plant.

The Court of Appeal refused to allow Taylor to appeal against his conviction, citing that the question of whether defences should be created for religious usage was a matter properly the province of the legislature, not the judiciary.

A self-styled shaman was prosecuted for supplying clients with ayahuasca, a psychedelic brew traditionally used in shamanic ceremonies in the Amazon, in order to advance their enlightenment and personal development.

Whilst the courts in the UK take an exceedingly liberal view as regards which belief systems fall within the purview of Article 9, it is not necessary for an individual’s beliefs to be even vaguely religious to attract the protections of Article 9.

The trial judge in Aziz followed Taylor, ruling that the mere fact of ayahuasca’s inclusion in the MDA proved that it constituted a threat to public health. The Court of Appeal agreed, refusing to grant leave to appeal.

This approach is unacceptably circular, and gives insufficient weight to human rights. A rigorous, evidence-based approach should have been deployed by the courts before deciding whether or not to interfere with Aziz’s freedom to manifest his beliefs.

The approach taken in Taylor and Aziz is legally unpersuasive, given that the Single Convention on Narcotic Drugs 1961 explicitly allows for exemption from enforcement of its provisions on constitutional grounds, and that a much more liberal approach to allowing for religious exemptions to prohibition has been adopted in the US.

Cognitive liberty in the courtroom

Although the courts in the UK have taken the view that rights-based challenges to drug prohibition go too far, there is an opposing contention that they do not go far enough.

The rationales for seeking to extend exemptions beyond the therapeutic and/or religious are manifold, and include a holistic understanding of health that incorporates the notion of humans flourishing to their full potential.

Religion is a slippery concept to pin down, and a more expansive view of religion will acknowledge alternative ideologies to those belief systems that are steeped in dogma. Psychedelics may play a part in this existential quest, and therefore exemption from prohibition should also apply to those who have more loosely spiritual experiences.

Taking psychedelics may catalyze a spiritual experience, but it may not. The drug experience is socially constructed, heavily shaped by expectations, and there is no clear division between the ”sacred” and the ”profane”.

Even if a psychedelic experience is categorically non-spiritual, does this mean that it should not be eligible for a human rights exemption, that it should be criminally prohibited? It depends on whether or not one believes that people should have to justify their psychedelic use on any grounds.

A person’s right to cognitive liberty is synonymous with freedom of thought, yet more precisely evokes the idea that individuals should have the right to autonomous self-determination over their own brain chemistry.

Professor Thomas Roberts argues that the prohibition of psychedelics is a form of censorship, because they are necessary precursors to particular styles of thinking, and by needlessly restricting the accessibility of drug produced states, current laws limit what we can know about our minds.

Cognitive liberty is a natural extension of the classic liberalism espoused by legal theorist John Stuart Mill. Mill laid down the principle of the prevention of harm to others as essential to justifiable criminalization from a liberal perspective, and thus rules out paternalism.

Liberalism rules out legal ”moralism”, the unsubstantiated ideology that psychedelic users should be subject to prohibitive measures as there is something intrinsically wrong with drug taking. Individuals should be free to make what the ”moral” majority might consider to be bad choices.

Liberalism is a values-based, ontological philosophy, enshrined in the ECHR, and therefore must not tolerate illiberalism. Infringements into the freedoms protected by this philosophy will only be valid where exercising them would create real, measurable harms in society.

Article 9 of the European Convention on Human Rights provides for State interference with rights, but freedom of thought is an absolute right, and psychedelic prohibitions interfere with this right without the qualifiers even being applicable.

Qualified to think

Article 9 qualifiers are mostly based on concerns about tangible harm to others, but it is questionable how often they are used in practice in cases involving psychedelics, with supposed harms not empirically demonstrated in the courtroom.

The courts’ tendency to weave unsupported futuristic worst-case-scenarios to justify engaging the qualifiers in Article 9 undermines the protections the article ostensibly affords, and is an immoral justification for prohibition itself.

Legal moralists are afraid of liberalism, and this is why they are behind many court decisions regarding drugs, and indeed behind drug policy itself. This is why they need to be directly addressed, and the more authentically moral position of liberalism brought to the fore.

Richards commits to taking legal moralists seriously, and laces the assumption that drug use is fundamentally degrading, as it prevents people from fulfilling their full potential through interfering with their self-control.

Legal moralism is likely to be motivated by a psychological, unconscious element. It is hard to accept that human urge to get intoxicated will always be with us, and will always cause some problems.

Even consequentialist assessments of harm will always involve value judgments, but a group of scientists led by David Nutt created the most reliable hierarchy of potential social harms from different drugs, which revealed a perversely inverse correlation between risk of harm and positioning in many instances.

Alcohol is the clear front-runner in terms of harm, both personal and social, yet it is legally and culturally accepted in the UK, while psychedelics are criminalized as Class A drugs. This exposes the hypocrisy of legal moralism.

The potential for social harm of a substance is not always apparent when a substance is placed in the MDA. Heroin and cocaine are high potential for social harm and should be treated as such in any future regulatory regime.

The ECHR provides substantial protection of human rights for minority groups, such as drug users, and the burden of proof as regards harm to others should be on the State to avoid these protections being hollowed out.

When assessing the risk of harms posed by psychedelics, it is important to take into account the potential benefits of these substances, which remain largely absent from both the language of the courts and policy discussion more generally.

Many users of psychedelics profess great benefits from them, and the courts need to recognize that the benefits to the individual may translate into benefits for society as a whole.

Underground movements centred around psychedelic use can be argued to have benefited society enormously, and this contribution is most visible when the work of such groups starts bubbling to the surface, such as the legitimization of the benefits of cannabis in a therapeutic context.

To bring all of this back to Article 9, recognizing that psychedelic use may benefit both the individual concerned and society is a transcendent leap to make.

A cognitive liberty informed psychedelic drug policy activism

A focus on enhancing rights, on emphasizing benefits, is recommended beyond the courtroom: it should also inform drug policy activism, more traditionally rooted in the principles of harm reduction. However, a different perspective needs to be adopted when advocating for psychedelic policy change.

A new activist organization in the UK, The Psychedelic Society, is promoting psychedelic pride by organizing psychedelic ‘coming out’ events. This is evidence that things can change, and that rights-based activism can make a difference.

If harm reduction is relied upon to collapse the prohibitionist regime, it could result in a watered down, attenuated version of prohibition itself, or it could simply be supplanted by the medical model. Adopting a rights-based stance leads into the development of a new paradigm for dealing with these molecules.

However, hopes for progressive, human rights informed psychedelic drug policy reform seem ever further away, as the current Conservative Government has signalled their intention to withdraw from the ECHR and produced the Psychoactive Substances Bill 2015-16.

The proposed legislation to ban psychedelic drugs was introduced under the precautionary principle, but when evaluated through the prism of human rights, it is exposed as an intolerable intrusion into private choices, not to mention a breach of the rule of law.

The legislation will not achieve its aims and will create numerous detrimental side effects, as such enactments inevitably do. People will continue to buy psychoactive substances, both classic and novel, and the use of the Dark Web to sell drugs is almost inevitable.

The trial of Ross Ulbricht, aka Dredd Pirate Roberts, former chief administrator of perhaps the most famous online drug retail website, Silk Road, saw harm reduction based arguments dominate. Ulbricht was awarded two life sentences, without the possibility of parole.

Despite Ulbricht’s loss of freedom and the FBI takedown of Silk Road, analogous websites continue to proliferate on the dark web, enabling more and more people to exercise their cognitive liberty. This is a positive development that can be viewed as the death knell of prohibition.

Concluding remarks

This paper has contended that it is crucial to evolve the jurisprudence on freedom of thought liberally, to incorporate cognitive liberty, and to use this as the foundation stone through which to reconfigure psychedelic drug policy, by way of both legal challenges and drug policy activism more generally.