As the ideologically driven nonsense that underpinned the Drug War becomes increasingly apparent and the need for drug law reform gathers momentum, it is important to recognise some of the subtle approaches and ideas expressed towards a drug reform model could well result in Prohibition 2.0. An approach that fails to fundamentally address the fallacies of prohibition, perpetuates the drug apartheid and uses the medical profession and civil society as enforcers rather than the police, armed forces and customs.
What are the signs that could open the door to Prohibition 2.0? Well here are some common statements which on first impression may appear to offer good support to a reform agenda, but on closer scrutiny these statements seriously risk replicating misinformation, and could result in new forms of state control, coercive treatment and punishment for people using the ‘wrong’ drugs.
- Drugs are dangerous that’s why we need strict regulation.
- Drug users shouldn’t go to prison, Drug Court is an effective alternative.
- We must accept our drug laws are out of date and need reforming.
- Drug use is not a crime problem it’s a public health problem.
- Soft drugs like cannabis should be decriminalised.
- NPS should be regulated, while unapproved NPS should be illegal to possess.
- People with substance use disorders should be forced to get treatment.
- Drugs that are legalised should only be available from approved suppliers.
- Tackling drug use through the criminal justice system was wrong we must tackle drug use through public health approaches.
- The drug war was a mistake but the state must protect people from the risk of addiction with strict controls over possession and supply.
- People diagnosed with substance use disorders cannot risk using drugs.
- Drug testing has an important role in public health and safety.
- Drug use is a problem we can’t eradicate so we must minimise it.
- Drug use isn’t a police problem it’s a medical concern.
- Only a small proportion of people use drugs and we are going to have to learn to accommodate them.
- We need to change drug laws not because drugs are safe, but because drugs are harmful and people are not being protected by current drug laws.
- Addiction is a disease so it shouldn’t be a criminal offence.
Julian Buchanan, Associate Professor, Institute of Criminology, Victoria University of Wellington, Aotearoa, New Zealand.
Our sophisticated techy gadgets, gismos and latest ‘apps’ make life easier, simpler and quicker. Our technology driven society monitors, measures and controls almost every aspect of daily life. The Internet tracks our lifestyle, values and interests, bar codes scan our shopping habits, CCTV cameras our movement, GPS/mobile phones track our precise location – this mass of data provides greater surveillance, knowledge and certainty for a world with an insatiable appetite for the measurable, tangible and controllable.
But the real world is not so certain; it is blurred, complex and messy. The apparent ‘evidence’ and ‘facts’ we possess are more contested than we would like to acknowledge. The trend to simplify is both seductive and dangerous. In recent decades there has been a growing tendency to stifle debate on complex issues reducing issues to simple binary opposites such as ‘you are either for us or against us’.
In respect of drug taking this resulted in the bifurcation of drugs in which illicit drugs (such as heroin, cannabis and cocaine) were presented as dangerous, immoral and likely to lead to addiction, whereas licit drugs (such as caffeine, alcohol and tobacco) by comparison were not classed as drugs at all, the risks were minimised and use was normalised. Despite the mounting evidence concerning the dangers of licit drugs and the relative safety by comparison of some illicit drugs the over simplistic binary approach continues to dominate law, policy and practice. People that use licit drugs still take offence at being considered a ‘drug user’, if they develop physical, social and psychological problems with licit drugs are never referred to as ‘addicts’, junkies or problem drug users. More people are killed directly by tobacco and alcohol than all the other illegal drug deaths combined, but it’s illicit drugs that will not be tolerated and drug testing is a key weapon to encourage and enforce (illicit) drug free lives.
The Appeal of the Drug Test
Legal and illegal drugs can for a small proportion of people result in major health and social problems – in extreme cases with devastating and fatal consequences. It is understandable that a concern to prevent such tragedies has resulted in a growing interest in drug testing. The technology appears to offer some tempting evidence and insight. Numerous companies sell a wide range of equipment to test saliva, hair, perspiration, blood and urine for a variety of drugs. Drug testing has long history of use with the substitute prescribing initially to ensure that people issued with a clean legal supply have actually used illicit drugs and some regimes using on-going drug tests for confirmation and confrontation within the ‘treatment’ process.
More recently drug-testing technology has been incorporated in Drug Courts and positive tests invariably lead to warnings, breach and sometimes prison. Drug testing has become popular with some employers – a positive result may lead to suspension or termination from employment. Some countries (like USA and New Zealand) drug test welfare benefit claimants and stop payments if the person continues to test positive for illegal drugs. In some countries like Sweden drug testing is used in schools and colleges, in the USA parent groups advocate randomly drug-test their children – there appears to be an endless range of circumstance when a drug test may ‘apparently’ prove useful.
When faced with a complicated situation of determining and responding appropriately to drug misuse a positive drug test appears to offer conclusive proof – clear evidence upon which straight talking and tough sanctions can be imposed. This measurable and quantifiable certainly appeals at this time of ‘punitive populism’ when binary simplistic approaches dominate, sadly it can also undermine any attempt to engage effectively with the complexity of the issue.
What Does a Positive Drug Test Actually Tell Us?
A positive drug test provides an illusion of clear evidence, fact and truth. The illusion occurs because the results of the test are contested. First, the test could produce a ‘false’ positive, or for that matter a ‘false’ negative. Errors and misreading’s can be caused by human error in the testing process, or by faulty testing equipment. While this is rare, there really should be no room for error given that the outcome could result in loss of liberty, loss of employment, damage to personal relationships and considerable repercussions in later life. Secondly, the result may not be a ‘misreading’ but misleading – the person may accurately show positive for an illicit drug, but it might be a drug which was consumed as a herbal supplement or medication, for example, a person who takes a paracodeine tablet for a headache would test positive for opiates. It would then be misleading to assume the person was ‘back on heroin’ even though they tested positive. Thirdly, relying upon the apparent ‘truth’ of a drug test can be flawed because negative test results may be achieved via kits readily available from the Internet that mask the presence of the illicit drugs. So a positive or negative drug test isn’t necessarily a definitive outcome, it could be a contested and/or misleading outcome.
However, it could be argued that in most cases they provide useful and accurate information. Well let us assume that the test is accurate – what does it actually tell the parent, teacher, employer, court or drug worker? Imagine you had a drink problem and at a later date you test positive for the drug alcohol, what does it indicate – it doesn’t tell us how you took the drug (it could have been a sherry trifle), where you took the drug, why you took the drug, when you took the drug or who you took the drug with. Most important, a positive drug test would give no real insight as to whether or not you have an alcohol problem. Drug use is not indicative of drug misuse.
These contextual details are much more important than the apparent ‘factual’ detail of the presence of a drug in your body. The drug testing technology is only able to provide scientific (but contested) ‘evidence’ that a person is (or is not) drug free. This information risks decontextualize and over-simplifying the issue of illicit drugs to a binary measure of: you are either drug free or a drug addict; you are either telling the truth or you are lying; you are either co-operating or being deviant, you either want help or you don’t want help. It gives those in power and authority confidence to impose sanctions and punishments upon the ‘outsider’ or ‘deviant’ based upon what masquerades as indisputable evidence. This approach is not only flawed, it has a number of adverse and unintended consequences.
Adverse and Unintended Consequences of Drug Testing:
- Drug testing draws attention to the substance use rather the person’s context, needs and circumstances. Most people with a drug problem have suffered damaging personal and social circumstances before drugs became an issue, and need considerable help. A pre-occupation with the presence of the drug, risks side-stepping the real underlying issues, which if not addressed, will almost certainly lead to relapse.
- An elevated importance to drug testing from key stakeholders can result in a paradigm shift in which abstinence becomes the measure for success. Harm reduction may get lost in the process, and the messy and difficult business of rehabilitation and reintegration is reduced to a simple celebration that the person is drug free.
- Currently around 30-70% of young people in most countries have used illicit drugs and most manage to avoid: a criminal record; a drug problem; harm to themselves or others. Widespread random drug testing risks net widening and capturing non-problematic drug users who then risk attracting labels as deviant or addicts which would pose serious damage to future life opportunities and relationships.
- Resources for public services are limited and money that could be used to tackle problematic drug use is wasted on expensive drug testing for people who don’t use drugs, or those who use drugs in a non-problematic manner.
- Random drug testing of pupils, students and children is misguided, cultural behaviour change is not achieved through policing, confronting and punishing, but through through reliable information, education and dialogue.
- The most widely used illicit drug – cannabis – is less harmful than the permissible legal drugs alcohol and tobacco, it is therefore ethically problematic, irrational and hypocritical to drug test for cannabis and not for alcohol and tobacco.
- Drug testing regimes with sanctions, such as random drug tests in colleges to exclude students who test positive), create a ‘cat and mouse’ game in which an adversarial relationship is established, both sides then seek to out-smart the other with new technology or deceptive techniques. The winners in this game are the drug testing businesses and underground laboratories; the losers are honesty, trust and communication.
- Tougher and more pervasive drug testing regimes to stamp out illicit drug use help spawn the proliferation of new synthetic designer ‘legal’ highs which avoid detection. Once the new drugs have been detected and outlawed the drug testing ‘net’ widens, new legal highs are developed and the spiral continues. These legal highs may be considerably more dangerous than commonly used illicit drugs.
- Some drugs like cannabis can stay in the body for over four weeks whereas drugs like cocaine can be out of the body within 48 hours. Random drug testing regimes (such as those in prisons) may inadvertently pressurise some people to switch from the less harmful cannabis to the more dangerous heroin or cocaine.
- Drug testing concentrates attention towards illegal drugs and unhelpfully firms up the misguided bifurcation between licit and illicit substances. It is not the use of all illicit drugs that warrants serious attention but it is the misuse of all drugs that warrants specific attention.
- A drug test may reduce the risk of people who are intoxicated from using machinery or flying a plane, however, testing positive for a drug doesn’t necessarily mean that the person is intoxicated or impaired – for example cannabis can be detected a month after not using.
Drug testing offers seductive simplicity that appears to help protect people from the dangers of drugs, but the misuse of the technology arguably has greater potential to mislead and distort rather than inform. The future of drug treatment and prevention lies not with monitoring, coercion and punishments, but with listening, engaging and caring, – drug testing sits firmly with the former and not with the latter.
Getting naloxone into the community was recommended by the World Health Organisation, and some countries like the USA, Australia, Scotland, Wales have made excellent progress, but here in New Zealand it has been difficult to get naloxone on the drug policy agenda let alone into the community, despite the fact that Coroner data indicates that every week someone dies of an opioid overdose.
Why should this be so difficult when naloxone has no abuse potential, is relatively cheap, easy to administer and is so effective at reversing overdose? Unfortunately, the failure to deliver a humane and effective drug policy has little to do with a lack of evidence, understanding or science, but much more to do with a lack of interest, care or regard for people who use illicit drugs, the people who inject drugs (PWID) are often even lower down the stigma pecking order, and naloxone is primarily a service for PWID.
In August 2013 fifty-five agencies were represented at an invitiaton-only National Think Tank Event led by the New Zealand Drug Foundation. After two days debating priorities, values and strategy, to shape the future of drug policy in Aotearoa the NZ Drug Foundation produced a 12,000 word vision statement, that became known as the Wellington Declaration – but surprisingly this comprehensive document failed to even mention naloxone.
A year later in August 2014 in it’s Matters of Substance Magazine rather than present a robust case for naloxone distribution the NZ Drug Foundation magazine framed Naloxone take-home as an issue open to debate and offered arguments for and against. This included some insulting arguments against naloxone distribution including “there could be an unintended consequence from widening availability of naloxone” and “people could become less cautious about their drug use because they know life-saving treatment is close at hand”.
In October 2014 after the new government was elected the NZ Drug Foundation prepared a twenty page Briefing Paper to Parliament designed to identify key drug policy priorities to provide ‘opportunities to make real reductions in drug related harm‘ (p.3). While the document emphasised the need to secure New Zealand representation at the United Nations international meetings (see below), and specifically highlighted the need to tackle deaths caused by huffing solvents, it astonishingly made no reference or representation to the the government concerning fatal opioid overdoses or the need to increase access to naloxone.
With this lack of commitment to naloxone from the lead NGO organisation for drug users/drug agencies in New Zealand, it was hardly surprising that when the new government eventually rolled out its five year Drug Policy Strategy 2015-2020 on 28th August 2015, the policy document made no mention of naloxone whatsoever. Interestingly, the new drug policy did, as promoted in the NZ Drug Foundation Briefing Paper, prioritise a commitment to ensure New Zealand would be represented at international UNGASS meetings (p.22).
Belatedly Matters of Substance published a better informed and considered magazine feature on Naloxone after the debacle of its ‘for or against’ debate, and then in June 2015 the New Zealand Drug Foundation produced a stand alone Naloxone Background Paper. However, while this discussion paper includes some excellent sources and appears to offer a robust argument for reducing overdose, it is littered with some odd statements and inclusions, such as “Due to the controversial nature of drug harm reduction and naloxone access”, and it confusingly recommends consideration for: “legal protection from arrest for drug possession and/or the act of injecting someone for people who administer naloxone in an emergency situation”, [my highlight in red], as well as recommending “reclassifying naloxone as restricted medication” rather than pharmacy only, largely it seems, to ensure that anyone who accesses naloxone receives training. It also considered some odd arguments against naloxone: “There may also be views that wider access is not necessary with naloxone already available in hospitals and with advanced paramedics” and it further posits “[naloxone] will lead to greater risk taking behaviour”.
There are other disconcerting aspects buried within what might otherwise appear a solid report arguing for greater naloxone distribution, such as the omission of data concerning the high percentage of overdose deaths that occur before the medics arrive, for example, a London study by Hickman et al (2007:320) found that when an ambulance was called the person who overdosed was already dead before the arrival of the ambulance in 85% of cases. Had this information been included in the NZ Drug Foundation report they would surely given greater emphasis to ensuring naloxone is in the hands of People Who Inject Drugs (PWID), their friends and family, but the report seems to give greater priority to naloxone training rather than naloxone distribution. The recommendations in the paper also includes loop holes that seem to almost invite a piecemeal approach to distributing naloxone, by suggesting various components of naloxone distribution could be seen as possible ‘separate options’ for consideration.
While this paper was primarily about the role of naloxone to reduce overdose death, it was an appropriate opportunity to mention some closely related issues that could reduce OD deaths in New Zealand, such as the benefit of allowing prescribing injectable drugs in New Zealand to people who continually inject rather than restrict them to oral methadone which is then invariably injected, or the effectiveness of Drug Consumption Rooms in reducing overdose. Here’s a link to the report that includes my highlighted concerns and critique.
Despite the absence of any clear commitment to wider naloxone distribution the campaigning in Aotearoa NZ must continue for naloxone take-home, and indeed for other strategies needed to reduce overdose and drug policy harm, including: drug checking; prescribing injectable opioids to opioid injectors; a Good Samaritan Law to end arrests for possession and manslaughter when calling for emergency help; end the criminalisation of possession of needles and utensils in New Zealand (unless proven to be obtained from the needle exchanges); and establishing Drug Consumption Rooms.
In view of this reluctance to put naloxone on the agenda, it was somewhat incongruous see the Director of the NZ Drug Foundation on International Overdose Day showcase a persuasively well-argued newspaper article (with no sense of irony or doublespeak), asserting that New Zealand needs to do more to tackle overdose and distribute naloxone. If only the New Zealand Drug Foundation had not been so indifferent on the issue of opioid overdose and if it had promoted the need for naloxone it could have been quite different. It’s New Zealand Drug Foundation in its pivotal drug policy advisory role, that needs to do more to tackle overdose and distribute naloxone.
It is hard to understand given the insights clearly displayed in their newspaper piece on International Overdose Day why the New Zealand Drug Foundation have omitted naloxone from important documents and why they haven’t campaigned when and where it matters, for naloxone take-home or over the counter sale from the outset. It is all too chameleon like. They did however, as promoted and prioritised, get to go to Vienna and New York and engage in the inertia of the UN drug control system that is committed to a ‘drug’ free world.
With an alternative emphasis on national drug policy reforms in New Zealand rather than international networking important drug policy harms could be tackled. Key issues that need tackling here in New Zealand Drug Policy include:
The CND and UNGASS meetings predictably delivered no tangible positive outcomes or progress. While nations inexcusably continue to overlook their own drug policy reforms while investing considerable energy on high maintenance low outcome international drug policy endeavours drug policy harms will remain. A growing number of reformers are recognising the need the shift the emphasis. In the meantime people who used drugs banned by the state are needlessly suffering and some dying. No naloxone take home – no excuse.
Dr Julian Buchanan, is a retired Associate Professor, Victoria University of Wellington, Institute of Criminology
31st August 2015 on International Overdose Day. (updated 16th May 2016)
We need to tackle the folly and futility of drug prohibition, in which we have created an irrational and unscientific bifurcation of drugs. An archaic system that favours, promotes and culturally embeds the use of some drugs, while fiercely policing, prohibiting and punishing the use of other drugs.
The 1961 UN Single Convention on Narcotic Drugs and the drug laws it has spawned, are deeply flawed, misinformed and misguided, they are an abuse of human rights and civil liberties. The realisation of this historic mistake and the momentum to end this draconian regime has gathered pace in recent years. While the US government has been a driving force defending and upholding drug prohibition, it is ironically the people of the US who are challenging the regime by voting to legalise cannabis. This is seen as a major step change by drug reformers to bring an end to prohibition, however, I question how Inviting cannabis to enjoy the privileges of other favoured drugs (alcohol, caffeine and tobacco) will tackle the wider and fundamental problem of drug prohibition.
Ironically, the legalisation of cannabis might actually bolster prohibition. The global and united drug reform movement could be undermined by an unintended consequence of privileging cannabis to join the elite drugs and subsequently ‘divide and rule’ to maintain the bifurcation process. No doubt, and understandably, after the decades of oppression suffered by cannabis users, legalisation of their drug of choice will be met with a celebration of the new found freedoms and privileges, but possibly also by a lack of interest to fight to end the prohibition of all drugs. Indeed, further, it could give rise to a new momentum against ‘drugs’ or ‘hard drugs’ – as recently liberated cannabis users redefining themselves as herbalists or sensible recreational users of ‘soft’ drugs.
I want to see cannabis legalised and sensibly (rather than strictly) regulated – in a way that avoids the oppression inherent in prohibition, and in a way that avoids the commercial exploitation we’ve seen in tobacco and alcohol. However, this is not something we should do for one or two selected substances, while maintaining and uphold the madness of prohibition again others. I’m an abolitionist, and I want to see all drugs legalised and regulated – there is no place for law enforcement and prohibition, personal drug consumption is not an issue per se, and if it does become a problem it is a social and health issue not a police matter.
Selectively privileging particular drugs based upon their popularity, to join alcohol, caffeine and tobacco as commercial products is not the way forward, it’s simply an extension of the principles of prohibition. Granting pardons for particular drugs is a dangerous and uncertain pathway towards drug reform. Instead, we should challenge the very foundations of prohibition and fight for the decriminalisation of every drug as a first step towards a comprehensive process to abolition, once this is achieved we urgently engage in the difficult and complex process to explore how best to legalise and regulate all drugs.
Julian Buchanan 27th April 2015
Julian Buchanan, Associate Professor, Institute of Criminology, Victoria University of Wellington, New Zealand
It is widely assumed that the so called ‘war on drugs’ (the war between drugs), has been a disastrous failure, and faced with mounting evidence and criticism, governments would eventually seek legislative and policy change.
The evidence presented is largely based upon an analysis of the inability of drug prohibition to reduce the supply and demand for banned substances, supplemented by a critique outlining the widespread harms caused by prohibition. However, with a different agenda and focus, it might be that this ‘evidence’ in terms of the failure to dent supply and demand, has over time (fifty years), become secondary to other government, business and organisational interests.
Seen in a different light, the Drug War has been a major success, providing considerable opportunities and benefits:
- It protects the market share and status of the privileged, promoted and culturally embedded legal drugs: alcohol; caffeine; tobacco; sugar and pharmaceuticals.
It provides the police with excellent powers to easily stop, search, arrest, interrogate and prosecute.
It successfully attracts significant additional funding for police, armed services, customs officials and security services.
It provides justification for military action and invasion of other countries.
It provides excellent opportunities for significant additional resources for the police/state through the seizure of assets.
It provides excellent business opportunities and raw material (people) for the ever burgeoning penal industrial complex.
It provides considerable opportunities for new technology development and sales, in the invasive and expanding drug testing industry.
It provides considerable opportunities for new technology development and sales, in the avoidance of drug detection industry.
It provides the drug rehabilitation business with an endless supply of illicit users, who must always abstain, and forever be in recovery.
It provides excellent opportunities for the state to easily target, monitor, control and punish the poor, indigenous people, Black and minority ethnic groups and people of colour.
It provides politicians with a societal scapegoat, and the chance to rally support and votes by getting ‘tough’ on a socially constructed enemy within: the ‘addict’ hooked and controlled by the ‘demon drugs’.
It provides the news media with easy, cheap dirty stories and pictures of the apparent horrors associated with illicit drug use.
It provides a much needed distraction from the serious problems caused by the more harmful, addictive and culturally embedded legal drugs – alcohol, tobacco, sugar and pharmaceuticals.
Internationally, it rallies otherwise disparate nations together by finding common ground to fight a shared war against a global enemy, ‘drugs’.
It provides the Banks with massive investments from money laundering.
It provides researchers and academics will a constant and reliable stream of funding sources for endless prevalence studies and evidence to uphold prohibition propaganda such as reefer madness, gateway theory, crack babies and krokodil.
It allows governments to detract attention away from the key structural drivers behind most chronic addiction (inequality, stigma, exclusion, poverty and blocked opportunities) and instead, misleadingly shift attention towards the supposed demonising and devastating power of the illicit drug.
It provides a lucrative illegal market that enables gangsters and drug cartels to make incredible untaxed profits.
It provides an attractive and unquestionable dogma for religious groups to ‘say no’ to drugs, avoiding the complexities of science, reason and rationale, and indeed the contradiction in respect of sugar, caffeine, tobacco and alcohol.
It provides excellent careers for drug enforcement officials and drug policy entrepreneurs and careerists, facilitating endless debates, inquiries, international travel, networking and conference events, particularly via the United Nations.
If these are key drivers that sustain prohibition and maintain the ‘war between drugs’ then appealing to the groups that benefit from prohibition by providing endless research reports and campaigns to highlight the limited impact prohibition has upon supply and demand, or the negative unintended outcomes from criminalisation, may have limited political impact or sway given the benefits experienced by these powerful groups and organisations.
by Julian Buchanan, Associate Professor Institute of Criminology, Victoria University of Wellington, Aotearoa New Zealand, (updated 24th August 2015).
Thanks to @mhound and @ChurchOfBong for helpful suggestions!
The Strict Regulation Approach
- Gangsters shouldn’t be in charge of drug distribution we must end prohibition.
- Drugs are dangerous and need to be strictly regulated.
- Only approved companies should produce them.
- Only approved outlets should sell them.
- Only approved regulated drugs should be sold.
- Individuals should not be allowed to manufacture or cultivate drugs.
- Possession of an unregulated or non-approved drug should be an offence.
- Individuals should only consume ‘approved’ regulated drugs.
- Police should be able to enter without a warrant if unregulated drug production/cultivation is suspected.
- Strict enforcement should apply to possession and supply of all unregulated unapproved drugs.
- Strict Regulation has produced: state approved legal regulated drugs and outlawed underground unregulated drugs.
- A full circle, welcome to New Prohibition.
This model of regulation has been adopted in New Zealand to control New Psychoactive Substances.
Human Rights Reform
Because prohibition of drugs has proven to be a damaging breach of human rights that has done more harm than the drugs ever could…
- Gangsters can’t be in charge of drug distribution we must end prohibition.
- Commercially sold drugs should be regulated.
- Only approved companies should produce them for commercial distribution.
- Only approved outlets should sell them.
- Only approved regulated drugs should be commercially sold.
- Strict regulatory controls are placed on all business practices (advertising, packaging, distribution, sale etc).
- Individuals can manufacture and/or cultivate ANY substance – for personal use only.
- Individuals can possess and consume ANY substance – for personal use.
- Registered societies and clubs can meet exchange information, knowledge and equipment.
- The fundamental human right for a person to consume in their body, what they choose, without threat, controls or punishment from the state remain paramount and must always be protected.
- All drug prohibition has been abolished.
The freedom, liberty and human rights of the individual must be protected from the controlling and paternalistic state, and against exploitation from multi-national corporations and businesses. It’s business activities that need regulating not people. Julian Buchanan
The NZ Psychoactive Substances Act 2013 (PSA2013) was never world leading drug reform as frequently claimed by some drug reformers and recently re-asserted in an article by one of the Act’s key flag bearers. It was however, world leading drug legislation, that succeeded in gaining almost unanimous support across New Zealand Parliament (apart from one MP), because this new drug law extended prohibition to include EVERY new psychoactive substance not currently incorporated within the Misuse of Drugs Act. If the concept of the PSA2013 to make drugs illegal (unapproved NPS), punish personal possession and supply, while privileging other selected drugs (approved NPS), may sound strangely familiar, it is, it’s called prohibition. It mirrors what has been happening for decades with approved legal drugs (alcohol, tobacco, caffeine and pharmaceuticals) and unapproved outlawed drugs listed under the Misuse of Drugs Act, except it provides a blanket ban unless specifically approved, rather than a blanket acceptance unless specifically banned.
The key problem with the PSA2013 is it’s like an illusion. The Act can be whatever you want it to be, it depends upon how you tell it, what you tell, and what you omit. To prohibitionists, it was sold as offering an end to the legal high ‘cat n mouse’ game, by introducing a once-and-for-all blanket ban on all substances currently legal. The Act removed legal highs from circulation and prevented them being sold in corner shops. By extending prohibition to every New Psychoactive Substance, the PSA2013 makes all NPS in New Zealand illegal unless subsequently approved by the state. Worryingly, the PSA makes personal possession of any new psychoactive drugs a punishable offence (s.71), it introduced new police powers to enter premises without a warrant (s.77), and a two year prison sentence for anyone supplying an ‘unapproved’ psychoactive drugs (s.70). Issues I highlighted in writing and in an oral presentation to the Health Select Committee.
To drug reformers these disconcerting aspects of the PSA are frequently airbrushed out of the story. Instead, to the drug reforming community, the PSA was sold as offering ‘world-leading’ drug reform, an exciting framework to regulate new psychoactive substances (that the same law made illegal), – provided these new substances could be demonstrated to be low risk. But it was always unclear what exactly is a ‘psychoactive’ substance, what would be considered ‘low risk’, and would there ever be a political willingness to approve any new drug? What the PSA has effectively done is to outlaw those drugs that were legal, impose punishments for possession of these drugs, and offer the possibility that, if proved low risk, some of these drugs might possibly, one day, be approved for circulation.
The PSA 2013 is prohibition under the guise of reform. Instead of the tedious and expensive process of the government having to use the Misuse of Drugs Act, to ban each individual drug that comes on the market, the PSA has simply banned the lot, albeit with a slim backdoor possibility that some ‘low risk’ drugs might, one day, be accommodated. The Act delivered what the Health Minister Peter Dunne always promised it would when in July 2012 he declared : “We are winning the battle [against drugs] and we are about to deliver the knockout blow with this legislation“.
We know from difficult experience with the 40 year old Misuse of Drugs Act, that bad laws are hard to change. The problem with our New Zealand PSA 2013 is, it was from the outset, a compromised pig in a poke. Unfortunately, proponents had little time or interest for considering the risks in blending prohibitionist agendas with drug reform aspirations. It seemed the intoxication of promoting world leading reform was too great to be worrying over the detail. Maybe drug reform proponents thought the most important goal was to send out a global message that countries are rolling out world leading drug reform, in an attempt to create a momentum? Whatever the misguided motivation, we are sadly left with an Act that has ultimately extended prohibition and widened the scope of the drug wars. I’m sure reformers didn’t intend this.
So the real lessons from here in New Zealand are: don’t get high on drug reform; think critically about what is being proposed; be willing to ask the tough questions; and don’t be tempted to form an alliance with prohibitionists on some shared pseudo agenda, simply to get drug reform legislation passed. If we have learned nothing else from the drug wars, it is that a non-negotiable principle in any reform, must be that personal possession of any substance must never be an offence, but our ‘world leading’ kiwi drug ‘reform’ has succeeded in outlawing personal possession of all new psychoactive drugs – even those not yet invented. Bad drug laws are hard to change, and here in New Zealand, we now have two bad drug laws, the MDA and the PSA.
Julian Buchanan is Associate Professor of Criminology at the Institute of Criminology, Victoria University of Wellington, Kelburn Campus, Wellington, 6140 Aotearoa New Zealand