Image courtesy of Connor Tarter
by Julian Buchanan 15th May 2018
We have a global drug policy problem
‘Drug’ Prohibition is an archaic system rooted in the 1950s that’s had a devastating global impact upon individuals, families, communities and countries. In decades to come, it will be remembered as one of the most arbitrary, barbaric and brutal systems of oppression in recent history.
Offensive prejudices and beliefs prevalent in the 1950s directed towards indigenous people, homosexuality, black people, women, mental illness and learning disabilities resulted in institutionalised oppression of these groups. State sanctioned discrimination legitimised and normalised oppression of these groups at a structural, cultural and at an individual level. Thankfully, seven decades later these offensive prejudices, nurtured by ignorance, misinformation and lies, have been successfully exposed and challenged, and such attitudes are no longer socially acceptable, however, the legacy still pervades and there remains much work to be done.
Those oppressive attitudes in the 1950s directed towards people who used ‘drugs’ became enshrined in the 1961 UN Single Convention on Narcotic Drugs – and quite remarkably, by contrast, little has changed. Arguably, discrimination fuelled by ignorance, misinformation and lies is worse today than it was in the 1950s, as surveillance, enforcement and exclusionary measures have extended beyond the criminal realm into the civil domain, with drug testing people on welfare benefits, students, motorists and employees.
“What we have come to regard as ‘drugs’ is a social and cultural construct lacking any pharmacological evidence base.”
During this period we have been conned and coerced into embracing and promoting state approved drugs (alcohol, caffeine, tobacco & sugar), and to view with disdain all substances banned by the government. This sharp distinction between state approved and state banned drugs has no scientific or pharmacological foundation to support it, it is entirely based on political propaganda. What is commonly referred to as ‘drugs’ is simply a list of substances arbitrarily excluded for political reasons. Despite the lack of evidence to support this distinction between substances, banned drugs have been demonised by attributing blame upon the drug for the devastating damage caused by prohibition, or by a circular government argument that: ‘drugs are dangerous and the evidence that they are dangerous, is that they are illegal’.
What we have come to regard as ‘drugs’ is a social and cultural construct lacking any pharmacological evidence base. Perversely, banned substances (if under the same quality control conditions as state-approved drugs), are generally less physically, socially and psychologically harmful, – and arguably more pleasurable and desirable. Further, there are medical benefits to many banned drugs that have been to denied to patients, leaving some people with epilepsy, PTSD, depression, autism, Alzheimer’s, MS, Parkinson’s and cancer, to needlessly suffer, or alternatively risk criminalisation and punishment.
Prohibition too has distorted and thwarted our thinking on drug prevention, drug education and drug treatment which have instead become preoccupied with avoiding ‘drugs’, lifelong abstinence to become ‘clean’, and stigma towards people that use ‘drugs’. In some instances, this prohibitionist dogma has produced damaging and potentially dangerous ‘treatment’.
Arguably, the greatest harms have been meted out by enforcement measures. On an individual level prohibition means users have little idea of the strength of a substance, nor of the content – it could be ‘cut’ with highly toxic ingredients. If there is a quality control issue the purchaser has no legal process for complaint, and if they get into personal difficulties or become seriously intoxicated, they are much less likely to seek assistance for fear of stigma, arrest and/or punishment.
“Prohibition too, has distorted and thwarted our thinking on drug prevention, drug eduction and drug treatment which have instead become preoccupied with avoiding ‘drugs’”
Indeed, one of the greatest threats to life is posed not by drugs, but by a drug conviction. A criminal record for a drug defined crime may result in insurmountable hurdles when seeking employment, education, accommodation, international travel, insurance and relationships. In some countries, a drug conviction can lead to incarceration – even the death penalty. A growing punitiveness has seen Duterte in the Philippines and Trump in the US, both advocate death for drug dealers, which in the Philippines appears to have been interpreted as legitimating the killing of suspects without trial or due process. This barbaric reaction to suspected drug dealers excludes of course, without any sense of irony or hypocrisy, those who deal in state-approved drugs.
‘Drug’ enforcement has been deeply divisive – targeting the poor, the indigenous, people of colour, and people from black and minority ethnic groups (BME), despite evidence that levels of drug use are similar across most communities. This discriminatory policing has resulted in deeply worrying disparities in terms of over-representation of indigenous people and people of colour in prison, particularly in New Zealand, Australia, UK & USA. So bad is the problem for ‘people of colour’ in the USA, Professor Michelle Alexander has referred to drug law enforcement as the New Jim Crow. Indeed, in most countries Prohibition has seriously damaged relationships between these communities and law enforcement.
The drug policy ratchet under seven decades of prohibition only ever allows for more punitive approaches. However, research indicates that policing to remove dealers from stable supply chains has actually increased violence in communities, while militarised responses to drug cartels have effectively resulted in violent ‘drug wars’ that have destabilised countries such as Mexico. The worrying growth of violent gangs, gangsters and drug cartels are not inevitable by-products of drugs, as we are led to believe. No, they are inevitable outcomes spawned from a brutally enforced system of drug prohibition, as also witnessed in the 1920s with alcohol prohibition.
“‘Drug’ enforcement has been deeply divisive – targeting the poor, the indigenous, people of colour, and people from black and minority ethnic groups”
Efforts to eradicate supply over many decades have largely been futile, they have barely had any impact whatsoever, on reducing illegal drug supplies. But in countries such as Afghanistan and Colombia crop eradication and carcinogenic crop spraying have devastated some of the poorest farmers in the country, a desperately poor community with few viable alternatives available to them.
Prohibition has fuelled misinformation, division, harm, violence and death – locally, nationally and internationally. It has undermined public health, facilitated the spread of dangerous diseases such as HIV & Hepatitis, caused deforestation and pollution, weakened human rights, encouraged hostility, stigma and discrimination towards the ‘Other’, undermined international development and security, increased crime, facilitated lucrative illegal markets, negatively redefined police-community relations, led to overcrowded prisons, and wasted billions of dollars in a relentless attempt to enforce a system that can’t be, and shouldn’t be enforced. So impossible is the task of prohibiting drug possession, that even high-security prisons are rife with prohibited drugs. The full extent of the damage caused by prohibition has been comprehensively detailed by the excellent work of “Count the Costs”
What needs to be done?
There are two main risks for people who use prohibited substances: the damage caused by law enforcement, criminalisation and punishment; and the other is the damage caused by not knowing what you are using because there is no framework for quality control. Both issues must be resolved, – but the greatest extent of damage is caused by former not the latter.
“…people who are both white and privileged are rarely captured in the ever extending enforcement net of prohibition.”
It is important to remember, that brutal enforcement measures meted out for drug defined crimes disproportionately target and impact the poor, BME and indigenous people. Whereas, by contrast, people who are both white and privileged are rarely captured in the ever-extending enforcement net of prohibition. For this privileged group the greatest threat is not a heavy-handed criminal justice system that threatens to target and ruin life opportunities with a drug conviction, no, the more likely threat they face is posed by ingesting an adulterated drug with has not been quality controlled.
Hardly surprising then, two strategies gaining the most traction in the drug reform movement, (led by the privileged class), are ‘drug checking’ at festivals (not at needle exchanges or drug consumption rooms) and cannabis legalisation. Bottom line, the drive for Legal Regulation is a commitment to secure a clean legal supply is available for those who can afford to buy legally regulated drugs from the new government approved drug business entrepreneurs. This removes the brunt of prohibition as experienced by the privileged (the lack of quality control) and additionally facilitates new business opportunities.
It should really come as no surprise, given that prohibition has always been about power, profit and privilege, that in areas of North America where cannabis has been legalised, ex-drug law enforcement officers who so vehemently rallied against ‘drugs’, are switching sides to seize the lucrative business opportunities.
“Legal Regulation is a somewhat vague ‘rally call’ from drug law reformers a little like a rallying call asking the government to take control of drugs.”
If in seeking to end Prohibition, we rally behind Legal Regulation, we are supporting a vague concept. For example, alcohol is a legally regulated drug (poorly regulated in my opinion), but opioids too, are a legally regulated drug (far too strictly in my opinion). So when we call for Legal Regulation what are we actually rallying behind, and what would it look like in policy and practice?
Regulation simply means managed by the state and legally available in certain circumstances. In most countries, it is possible for an adult to purchase beer (alcohol) in a supermarket and codeine (opioids) at a pharmacy – without much difficulty. Under the regulation of other opioids such as morphine, diamorphine or fentanyl are legal to use, in particular circumstances – such as when prescribed for acute pain relief. However, while opioids are legally regulated, possession of certain opioids are in most circumstances strictly prohibited, and unapproved possession and/or supply can result to some of the harshest punishments available to the criminal courts – including life imprisonment. By contrast restrictions and punishments concerning possession and supply of another regulated drug, alcohol, are more liberal and generally lenient, as are regulations concerning alcohol sale outlets, sponsorship, media coverage and advertising.
So supporting Legal Regulation is a somewhat vague ‘rally call’ from drug law reformers a little like a rallying call asking the government to take control of drugs. Legal Regulation is a response to a symptom of Prohibition, but it fails to address the cause of our drug policy problem – Prohibition!
Yes, we do need a legally regulated supply of all drugs, (and not just cannabis), but whether that addresses the problem of an illegal market depends greatly on how the ‘regulation’ model operates. A Legal Regulation model that incorporates the prohibition and punishment of unapproved adult personal possession and social dealing, is I’d argue, simply perpetuating the problems in a repackaged Prohibition 2.0.
Under a regulation model, the state may approve and legally regulate a wider range of drugs, while still prohibiting so-called ‘dangerous drugs’. We see this happening now where cannabis is invited to the top table to join the other privileged state approved drugs. Some may see this as a slow but incremental dismantling of prohibition, I think paradoxically, it is more likely to extend prohibition. Even if the state made all drugs available under a Legal Regulation model, the model still allows the government to insist that those substances remain prohibited, unless purchased from state-licensed companies. We would then have a model in which it is an offence to be in possession of any drug from an unregulated source – for example, homegrown cannabis. Prohibition 2.0 would then continue to fuel an underground illegal drug market, and drug law enforcement desperately needing a cultural change of focus, would continue as before, once again targeting the poor, the indigenous, black and minority ethnic (BME) groups.
“Regulation that perpetuates a two tier system of state approved drugs that can only be purchased; and unapproved drugs which are banned; simply replicates the existing oppressive model.”
Those who suffered most under Prohibition must be the first to be protected in any new regime.
Let’s be clear and tell it as it is: the problem is Prohibition (not drugs per se); the protagonists are the UN & government law enforcement (not gangsters); the damage is largely caused by the military, criminal and community justice system (not criminals); and the victims we must protect are not so much the privileged class (who are relatively by comparison, unaffected), but the poor, indigenous and BME communities who have for decades suffered unfairly under prohibition.
To the privileged class prohibition is a flawed policy worthy of discussion and in need of reform, but rarely are they subject to drug law enforcement measures. Whereas under prohibition poor people, indigenous communities and BME groups face considerable daily threats: being stopped, searched; arrested; charged; found guilty; imprisoned; excluded; marginalised; denied employed, housing, insurance, healthcare, travel and participation.
Regulation that perpetuates a two-tier system of state-approved drugs that can only be purchased; and unapproved drugs which are banned; simply replicates the existing oppressive model. Less privileged members of society unable to afford the prices charged by state-licensed suppliers would turn to the underground illegal market, and find themselves once again subject to drug law enforcement measures. Legal Regulation could be to Prohibition, what Jim Crow was to Slavery.
Legal Regulation fails to properly address the core problems of prohibition – the breach of human rights over your body and what you choose to ingest and the deeply discriminatory law enforcement measures imposed. It deals with harshest aspects of prohibition as experienced by the privileged class, by enabling them new opportunities to purchase a clean legal supply.
Before any regulation model should be considered, we must first and foremost decriminalise ALL possession, cultivation and production of drugs for personal use. This is a simple step that could be enacted quickly and with little cost. Importantly, it sets the human rights framework to then explore the complex process of legal regulation, and that new framework must ultimately ensure we move beyond the initial stage of decriminalisation, and establish a legal right for adults to possess, cultivate and/or produce any drug for personal use.
The way forward
We should not support any Legal Regulation model that includes punishing adults for personal possession or consumption of ‘unapproved’ substances. This is a fundamental human right abuse enshrined in Prohibition that under no circumstances should be accommodated in reform. It’s your body and your choice what you ingest. Most advocates for Legal Regulation are silent on such issues, or regard trading those rights as a necessary compromise to broker ‘reform’. For example, New Zealand received global acclaim for its highly publicised ‘World Leading Drug Reform’ when they introduced the Psychoactive Substances Act 2013 to legally regulate New Psychoactive Substances.
“We should not support any Legal Regulation model that includes punishing adults for personal possession or consumption of ‘unapproved’ substances. This is a fundamental human right abuse”
However, what the model did was widened the net of prohibition by making the possession of previously legal drugs (legal highs or NPS) illegal, and it also offered an approval system for NPS via a regulation process. The fact that it worryingly punished personal adult possession of unapproved substances, leaving the door open to the heart of the problem (Prohibition) seemed to be overlooked by drug reformers.
Given the enforcement abuses under drug prohibition, one clear non-negotiable principle in any reform must be to ensure that we reclaim the Human Right over our bodies to be able to choose what we ingest without the threat of criminalisation, punishment, hospitalisation, imprisonment or the death penalty by the state.
Decriminalisation – the low hanging fruit
Portugal did the right thing in 2001 when they decriminalising all personal possession of drugs and built in additional support for the small percentage of drug users who develop problems with addiction. It’s a drug reform no-brainer! It is a decision that makes great sense and it has had positive outcomes in reducing: addiction rates; the burden on the criminal justice system; and fatal overdoses.
Decriminalisation of all personal possession is easy picking ‘low-hanging fruit’ that should be the first step of reform for every country. But so much more needs to be done. Decriminalising cultivation and production for personal use only would be a second easy step that would help users reduce the need for engagement in the criminal underworld, especially when the most popular drug used by far (cannabis) is easily homegrown. After that government should rescind drug laws and ensure they are replaced with a sensible evidence-based model of Legal Regulation rooted firmly in human rights and harm reduction. People with drug defined conviction should have their convictions removed, be issued with an apology and compensation.
“…the key reform priority is to end all law enforcement for adult drug possession, cultivation and production for personal use.”
An open invitation to state (the perpetrators of prohibition), who have consistently and deliberately ignored science and evidence and continued to enforce a brutal and draconian system of prohibition for decades, to devise a new regulation model, is likely to result in continued disproportionate law enforcement measures imposed on the poor, the indigenous and BME groups for possession of ‘unapproved’ drugs. Before the state even begins to think about the difficult and complex process of legally regulating drugs, we must first and foremost, ensure we abolish Prohibition once and for all and restore human rights.
To most reformers (myself included) the key reform priority is to end all law enforcement for adult drug possession, cultivation and production for personal use. This is a matter of principle that cannot be compromised and should not be diluted by attempting to roll out human rights incrementally. The Human Right over your body must be instantly restored, while the devastating law enforcement abuses in policing drug possession must end, and this will require cultural reform as well as legal reform. Once those human rights are secured and bolted down, then the important work to establish an appropriately regulated drug market can begin.
I would make all drugs available to adults under a legally regulated market, with strict regulation over the businesses (rather than consumers). Governments have a poor record of regulating the pharmaceutical (for example Fentanyl), sugar, alcohol and tobacco industry, so if the state is going to sensibly regulate all ‘drugs’ in a manner that protects human rights and promotes harm reduction they will need careful oversight, advice and political pressure. The risk of oppression from the state can be minimised by ensuring that the new regulatory frameworks sit on a foundation of well established human rights concerning personal use, cultivation and production.
“…hopefully we have learned lessons from alcohol and tobacco regulation, so forewarned and forearmed – we can do a much better job living with all drugs.”
In terms of adult accessing drugs initially, the main outlets could be pharmacies, soon followed by off licenses and gradually a cultural change with the most commonly preferred social and recreational drugs being available in cafe’s, bars, restaurants and major events. This may sound like unknown territory, but it isn’t really. Regrettably, we have already regulated, culturally accommodated, privileged and promoted arguably the most harmful drug of all – alcohol – and we’ve regulated it badly. However, despite pushing a particularly poisonous harmful drug and managing it poorly, we have lived to tell the tale, and while reading this folk might be enjoying a glass of Pinot Noir, rightly without any sense of panic or fear. We know from the folly of alcohol prohibition we need to live with drugs, but hopefully, we have learned lessons from alcohol and tobacco regulation, so forewarned and forearmed – we can do a much better job living with all drugs. While there will be a concern for an increased range of drug-related issues, the wider availability and choice is likely to lead to some wiser and better-informed choices – some already being witnessed in areas that have legalised cannabis.
Alongside this new legal freedom must be easy access to sensible and truthful balanced information about the risks posed by all drugs. Drug education, addiction prevention and addiction treatment should be informed not by ideological belief or moral crusade but by evidence-based research. These services must promote harm reduction and human rights. We should not be in the business of preventing drug use, in the same way, that we shouldn’t seek to prevent people from having a cup of coffee, glass of wine, or cigar – instead we must be in the business of preventing drug policy harms caused by prohibition policies, and preventing and treating drug addiction.
Dr Julian Buchanan is a retired Associate Professor from the Institute of Criminology at Victoria University of Wellington, Aotearoa New Zealand.