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by Julian Buchanan (updated Dec 2016)
While it can be argued that some groups have benefitted from drug prohibition, this divisive and ill-founded strategy has caused untold harm to many. Yet despite the unequivocal evidence of social damage, severe law enforcement measures to deter the use of certain substances have continued unabated for over five decades. In their eagerness to end the draconian drug war and replace it with a policy rooted in evidence, science and reason, should Drug Reformers accept and embrace any policy improvement as a step in the right direction? Before we consider the issue of drug reform in terms of incremental change versus abolition, we need to distinguish between individuals, and the organisations/leaders/spokespeople who have an interest in drug policy. With regard to individuals who may have shifted from once embracing the dominant discourse of prohibition to a more informed and enlightened view of drugs, any incremental move warrants encouragement and supportive discussion. In respect of organisations, leaders, and spokespeople with an interest in drug policy, however, I think we need to be more much more questioning and critical.
An incrementalist approach, which perceives any step away from the traditional drug war model as an inherently positive move, is at best naive. It mistakenly assumes that incremental changes to Prohibition should automatically be supported, as key steps towards ending the Drug War. Herein lies a major issue. So, for example – imagine that one ‘Reform’ organisation campaigns to get drugs ‘out of the hands of gangsters‘ and wants drugs to be regulated.
On the face of it, this sounds good – as if we are on the same page, heading in the same direction. If, however, the proposed changes promoted by this ‘Reform’ organisation mean that some drugs will be legalised, but will only be available via BigPharma or Big Business, and new laws will be rolled out to make possession of ‘unregulated’ drugs a criminal offence – then we are definitely not on the same page: I can’t support replacing prohibition with Prohibition 2.0.
For me, the wrongful policing, criminalisation, and incarceration of people for possession of banned drugs is the most important issue in the Drug War, and I think it is paramount, from a human rights perspective, that in the course of any reform, the State shouldn’t decide what a person can and can’t consume, and shouldn’t seek to prevent such consumption, or to punish people for personal possession of unapproved drugs. Such enforcement has always been selective, repeatedly and unfairly targeting disadvantaged people, indigenous people, Black people, women and ethnic and minority groups. So, what might appear to be a step in the right direction could end up being a lost opportunity for genuine reform. If reformers aren’t careful, they could wind up supporting the launch of a new regime of Prohibition.
The example above highlights the importance of clarity and transparency concerning what individuals and organisations who ‘sit around the table’ to tackle the drug war, are actually seeking to replace it with, and why. Inevitably, abolition will involve a process of change, but it is vital to support only those changes that are clearly part of the bigger process of abolition.
A further example would be a shared concern regarding the huge number of people going to prison for drug-defined crimes (such as possession, cultivation, and supply). An organisation comes along and says prison for drug-defined crime is wrong. Yes, this appears to be another incremental step in the right direction that we should support. On the surface it is; but this penal reform organisation seeking to keep offenders out of prison, later also disturbingly argues that we can stop drug users going to prison by setting up Drug Abstinence Courts, random drug testing, scran tags and 12-step rehabilitation programmes. In our shared efforts to produce incremental reform, we risk supporting new oppressive regimes rooted in prohibition and abstinence.
Should we support this ‘incremental improvement’ away from prison to Drug Abstinence Courts? I don’t think so. Drug Abstinence Courts are new prohibition, utilising quasi-compulsory methods to enforce abstinence and impose a blanket ban on drug use. In the USA, this apparent step in the right direction has spawned a huge rehab and drug-testing business that profits from these drug ‘offenders’. There are now around 3,000 Drug Courts, with more being rolled out in other Anglophile countries.
A third example would be a reform organisation promoting the view that drug use is not a crime problem, but a public health issue. In our gratitude at the prospect of drugs moving out of the law enforcement arena to which they should never have been consigned, it would be easy to lend support to this change. Further examination and discussion, however, reveals that while the ‘reform’ organisation supports decriminalisation of all drugs, it sees the use of all currently-banned drugs as a public health issue, and fails to distinguish between recreational use and problematic use, or between different drugs. The risk here is that the oppression for so long endured at the hands of law enforcement could be replaced by oppression at the hands of the medical and health professions coercively ‘treating’ people for their ‘public health’ problem.
A fourth example is that of campaigns to legalise particular drugs, such as the growing move to legalise cannabis. While this is laudable, and a move I wholeheartedly agree with in principle, selectively privileging particular drugs, based upon their popularity, to join the licit market in alcohol, caffeine and tobacco does not signal an end to Prohibition – on the contrary; it arguably bolsters 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 push for the legal right to possess any substance for personal use, without threat, intimidation or punishment from the state.
The trouble with combating a major injustice such as the Drug War, and then settling for incremental adjustments, is that it compromises, complicates and confuses the reform movement and message, it dilutes and divides the drive for reform, and it establishes a new regime which then gains its own momentum, and poses its own problems, which are even harder to correct.
The Drug War will be remembered in history as one of the greatest social policy disasters in modern times, an ill-founded and ill-conceived approach, a serious breach of human rights which has devastated the lives of individuals, families, communities, and indeed whole countries. There is only one acceptable solution to Prohibition and that is Abolition.
*With thanks to Jerry Dorey for helpful edits and suggestions!
Delighted that Aotearoa New Zealand looks set to regulate new legal highs – in theory – but don’t led that mislead you about drug policy here in NZ – the drug policy is anything but progressive! And indeed regulation is only regulation if the principle can be put into practice. I hope it will be, but I fear that the requirements to test drugs will be so stringent, and the threshold to prove the drug is ‘safe’ too high that no legal highs will be approved. Can anything we eat or drink prove to be totally safe?
This much hailed progressive move in New Zealand drug policy needs to be seen in the wider context. The same NZ government who are apparently progressive on drug policy are also introducing legislation to stop benefits for people who repeatedly test positive for any illicit drugs, have rolled out a five year US styled abstinence based Drug Court, stepping up workplace drug testing, have rejected a Bill to allow people with life limiting illnesses to self medicate with marihuana, and it has one of the highest prison populations in the world – incarcerating lots of people for drug defined (possession/supply) crime. 11% of young people convicted for possession of illicit drugs/utilensils go to prison.
So called regulation will be little different to prohibition if the standards required to become ‘regulated’ are unreasonably and prohibited high. The principle of regulation is great – but it needs to be genuinely delivered in good faith – and it’s hard to see (given other drug policy developments) this move here in NZ as an act in good faith towards regulation.
The NZ Law Commission carried out a major review of the 1975 Misuse of Drugs Act and that was published in 2011 but the minister Peter Dunne has strongly rejected the Law Commission proposal to introduce cautioning for drug possession and most of the other recommendations have been sidelined, so abstinence and prohibition continue.