The Just War Theory (hereinafter JWT) is a subset of moral philosophy that addresses the questions about the moral justification for going to war (jus ad bellum) and the moral constraints on conduct within war (jus in bello). The theories underlying the JWT are illustrative of the rules used by attorneys in conducting the prosecution and defense of criminal defendants. The five rules or requirements set forth to justify governmental aggression are: just cause, last resort, proportionality, right intention and right authority.
In war theory, the most basic rule of aggression is that one may only aggress if one has just cause. Once the legislative authority decides to proscribe certain conduct as being “criminal,” the rules of the Constitution, and the ethical rules of practice create a just cause for imposing the power of the government upon an individual citizen. So greatly do we prize our liberty that we have come to expect a trepidation in using the power of the State against the individual, that we follow the rules of JWT that aggression (in this case creating a category of crime) should be the last resort. If another plausible alternative to government prohibition exists, the underlying theory supporting the State action is morally questionable.
Let us now apply JWT to the current War on Drugs being practiced in ernest. Is it morally justifiable to use aggression, via legislation, against drug users? Many proponents of reform suggest that treating drug users as criminals is not morally justifiable. Instead of using the power of the State to put these people in prison, the proper response is to shift the focus of State intervention to treatment. In many countries in Europe, the State has taken the treatment approach with amazing results. Ad bellum proportionality requires the aggression to be proportional to the harms caused to society. The success of these programs calls into question the ad bellum proportionality of sending people to prison for long sentences, depriving their families of their support and causing a generational punishment. It was the philosopher John Locke that sought to limit our “right to punish” because humans naturally tend to underestimate the injuries they cause others and to overestimate the injuries others cause to them.
As the War on Drugs progressed, it became apparent that it was having a disparate effect on poor communities and communities of color. The racist impact of the laws create a problem for Just War Theorists. It was Thomas Aquinas who said that, “It may happen that a war is declared for a just cause… and yet be rendered unlawful through a wicked intention.” see his Summa Theologica I, questions 18-21; for Aquinus on war, see ST II, question 40. Many have concluded that the justice of the aggression was diminished or nullified by the racist ulterior motives. Putting more African-American men in prison than were ever held is slavery violates the ad bellum rule of right intention. The War on Drugs was also a war conducted not in the eyes of the public, but in the secretive world of prosecutorial discretion. The motives of local officials are not divorced from the passions of the community, nor are the subject to the oversight of the legislature. Instead, the ad bellum rule of right authority is called into question because of how we allowed the War on Drugs to be prosecuted.
According to traditional JWT, resorting to aggression is justified if and only if all conditions supporting the action are present. If even one of these requirements are not met, the actions of the aggressor (in this case the government) are not morally permissible. I think that strong arguments exist that would make prosecution of the War on Drugs wrong. Apologists for the War on Drugs appeal to the morally important ends at stake – protecting our children from addiction and our communities from violence. But these arguments are undermined at every turn by not only the failure of the War on Drugs but by the failure to justify the continuation of the failed policies when clear alternative exist.
Having raised significant questions about the jus ad bellum justification for the War on Drugs, let us now turn to the method in which the “war” was being and is being prosecuted, to wit the jus in bello analysis. Just as it is incumbent upon aggressors to weigh the costs and benefits of aggressing in the first place, they must also take care to ensure that their actions within the War on Drugs are proportionate. Thus, are their beneficial consequences of aggression outweighed by the known and quantifiable harms. Judges have to ask if weakening the Constitution to make prosecution of drug crimes easier is outweighed by the detrimental effects to our society. Police officers have to ask if holding prosecutions over an addicts head so as to send that person into dangerous situations for more arrests is ethical. Prosecutors have to ask if making more arrests and sending people to prison for longer and longer sentences benefits the communities they are ethically bound to serve and protect. Legislators must ask if the endless parade of mandatory drug sentences is serving to make our society better. The “war” of a criminal trial has clearly delineated boundaries. As a criminal defense attorney, the moral justification for punishment is met only when I provide a vigorous defense within the rules of the game. If I fail to provide a proper defense or if I am prevented from making beneficial arguments on my client’s behalf, the “war” becomes unfair and the impact of the laws disproportionate.
The second in bello rule of aggression requires that agents of aggression must discriminate between legitimate and illegitimate targets. They are bound to distinguish between the innocent and those deserving of punishment. The entirety of the requirement of discrimination is reliant upon a good faith execution of the aggression based on solid information. Is it not true that the War on Drugs has been a campaign fueled by misinformation, fear and undertones of racist memes? Is it not also true that the continued targeting of Americans is supported by the desire for local law enforcement agencies to co-opt tons and tons of money? If there exists a financial incentive to target people for arrest, then no argument exists that the aggression is discriminate.
This article has attempted to set forth the reasons that the War on Drugs is not justified according to the Just War Theory. Both the jus ad bellum and jus in bellum theories have been explored and found wanting.