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Secondhand Smokescreen?

New York City now joins 500 other U.S. municipalities that have banned smoking in parks and public squares. New Yorkers face a $50 fine for lighting up, although Mayor Bloomberg says the ban will be enforced by citizen pressure and some Parks Department personnel, not by NYC cops. Research shows that secondhand smoke contains 69 known carcinogens and can cause the same health problems as direct smoking. So, yes, breathing in secondhand smoke is harmful. We dislike it as much as the next non-smoker in restaurants or office spaces. But outside it’s a different story. In the fresh air of a park it’s pretty easy to avoid breathing it in. We don’t need government regulations to protect non-smokers in open outdoor areas. A mild wind or natural dissipation is enough. So it’s not surprising that many are outraged by what seems like another misguided intrusion on personal liberties.

But is the primary motive behind outdoor smoking bans really about protecting non-smokers? Some critics suggest such bans are really all about protecting smokers from themselves, and that outdoor smoking bans are mostly another way of reducing smoking rates by making it so troublesome to light up that some people will simply quit.

If the hidden rationale behind outdoor smoking bans is firsthand smoke, not secondhand smoke, such bans make more sense. Although we may dislike the idea of Big Brother protecting mature adults from their own choices, even bad choices, at least there’s a rational basis. After all, smoking makes a lot of smokers very sick. According to the CDC, smoking costs the nation over $150 billion annually in health care costs. Many of us know a smoker who got lung, throat or mouth cancer.

As criminal defense attorneys, we can’t resist thinking that perhaps the tactic of making it less convenient for smokers to smoke through deterrents like this most recent smoking ban might actually be a more effective way to handle other currently criminal activities, as well. What if we made it exceedingly difficult and inconvenient for people to use drugs, without it being a crime that police enforce?  Certainly, it would save a great deal of money and reduce an already bloated government bureaucracy, but would it also be more effective in reducing drug use – instead of using drugs and trying to outwit the system, would more people simply forego drug use on their own, or enter rehab?  There will always be a percentage of folks who become addicted to drugs and/or refuse to stop. But what of all the others?

While some might think that the new ban on outdoor smoking is overkill, it’s a great example of how limiting/regulating negative behavior rather than criminalizing it makes sense. Research continues to support the idea that gentle “nudges” are a better and more effective way to influence behavior and choices than heavy-handed rules and punishments (see https://nudges.org/). But by making it more difficult to smoke, it’s likely that a number of people may simply give up the habit on their own.  If lawmakers instead forbid smoking altogether, as has been done with recreational drug use, wouldn’t a higher number of people be even more committed to finding a way to do so?  Didn’t we learn, from our disastrous experiment with alcohol Prohibition, that criminalizing behavior brings with it a host of problems that can be even worse than the underlying activity?  It tramples on personal liberties, it balloons the black market, it increases organized crime, and it costs a fortune to enforce – all without getting any tax revenues.

Therefore, might regulation, rather than outright prohibition, possibly be the better choice for not only tobacco, but for recreational drug use as well?  Read more at https://www.drugpolicy.org/.

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