When Prime Minister Harper introduced his National Anti-Drug Strategy (NADS) in October 2007, drug policy experts braced for the worst. The NADS promised to put good electoral politics ahead of good policy through the reinvigoration of punitiveness, one of many imports from the American criminal justice model which the Conservatives have incorporated into their politics.
The NADS essentially proclaims that drugs cause crime, that crime is bad and that therefore government needs to do something about drugs. The Prime Minster signalled unambiguously that his government would not permit a vision for drug control to be clouded by complexities arising from patterns of use, the failure of existing policy, human rights, the concurrence of drug abuse with mental illness and homelessness or other such distractions. The NADS was designed to harmonize with the government’s chest-pounding on crime and social disorder generally and to signal to true believers – in Canada and Washington – that the “new government” was “getting tough.” Drug prohibition – including the whole testosterone-fuelled “tough on crime” swagger so beloved by Conservatives – has the virtue of making elected officials appear to be “doing something” to address the violence that black markets invariably produce. “Cracking down” creates the appearance of muscularity for governments that seem otherwise hapless in the face of social trends they neither understand nor seem to be able to control.
The new punitiveness was coupled with deemphasis of the public health piece that had dominated Ottawa’s approach to drugs under Brian Mulroney and Jean Chrétien. Previous Canadian governments had essentially decided that they could not – given the centrality of Canada-U.S. relations – substantially depart from a drug control strategy to which successive U.S. administrations were zealously committed, despite its obvious failure to deliver on its key objectives. So to blunt the harshest consequences of a full-blown American-style “war on drugs,” they had recast Canada’s drug control strategy by locating it, in effect, between law enforcement and public health until serious reform prospects opened up.
Governments had good evidence and arguments for rethinking prohibition. In its 1999 study Marijuana and Medicine: Assessing the Science Base, the U.S. Institute of Medicine concluded that “cannabinoids likely have a natural role in pain modulation, control of movement, and memory” and that more research was warranted into the medicinal potential of cannabinoid-based drugs.1
In September 2002, the Senate Special Committee on Illegal Drugs, chaired by Conservative Senator Claude Nolin, released a substantial study of Canada’s drug control experience and policy concluding that prohibition of cannabis – approximately 75 per cent of the entire illicit drug trade – not only did not reduce demand but in fact made everything about drug use worse, and that far-reaching legislative changes could bring about a rational drug control policy that produced fewer harmful consequences for users, families and communities.2
Four months later the Special Committee on Non-Medical Use of Drugs, chaired by Liberal MP Paddy Torsney, released its report calling for a strategy tilted away from a focus on enforcement toward prevention, education, harm reduction and research.3 The Senate and Commons reports essentially vindicated the 1972 conclusion of the Commission of Inquiry into the Non-Medical Use of Drugs, chaired by Gerald Le Dain, that drug prohibition was more harmful than could be justified given that it could not produce the decline in drug use that its defenders repeatedly promised. On the basis of science, compassion, experience and logic the path toward drug law reform was clearly laid out by early 2003.
But the Harper Conservatives were not interested in science, compassion, experience or logic where drugs were concerned. Within weeks of coming to power, Public Safety Minister Stockwell Day killed a safe tattooing strategy which the previous government had asked the Public Health Agency to conduct, which an evaluation suggested showed promise for reducing the spread of HIV and hepatitis C between prisoners, and which a majority of prison staff believed would make institutions safer.4
This hostility toward unwelcome science has continued most persistently with regard to Insite, Vancouver’s safe injection facility. When the peer-reviewed evidence, published in places like The Lancet,5did not comport with the government’s preferences, the government paid the RCMP to prepare a report denouncing harm reduction and endorsing a strategy that, in purpose and effect, would roll back the clock on compassionate and effective drug control policy and practice. “A Critique of Canada’s INSITE Injection Site and its Parent Philosophy” replicates a tactic employed by the Bush administration toward scientific conclusions it did not like: create what appears to be a dispute among experts and then claim that the science is inconclusive.6
The spin surrounding the rollout of the National Anti-Drug Strategy criticized the near-relaxation of marijuana laws under Chrétien and Paul Martin, and Harper took a shot at the Beatles’ alleged endorsement of consciousness-altering drug use and the “do your own thing” ethic of the 1960s. The PM’s October 2007 announcement in Winnipeg echoed all the old canards dating from Richard Nixon’s first “war on drugs” in 1969, updated with some familiar mythology from the “just say no” Reagan-Bush era. One particular couplet from the Prime Minister’s NADS announcement smartly encapsulates the incongruity between good crime politics and good drug control policy:
If drugs do get hold of you – there’s help to get you off them. And if you sell or produce drugs – you’ll pay with jail time.
Whoever wrote this text, or designed a strategy on this premise, either does not understand the nature of drug addiction under conditions of prohibition or simply chose to disregard the public health and addiction science relevant to drug use and abuse. Anyone who actually studies how drug use and trafficking operate will immediately reply that the vast majority of low-level drug traffickers sell drugs to support their own habits –the “big fish” are well insulated behind layers of middlemen and are seldom apprehended. At the street level, traffickers and users are the same people: they are the low-hanging fruit on which the American prison empire has been built.7 The NADS promises to both help and punish the same people at the same time – an unambiguous signal to the expert community that research on effective drug demand reduction would not be permitted to contaminate the government’s approach.
Lest there be any residual confusion, the NADS omitted reference to “harm reduction” and “needle exchange,” two concepts endorsed by every major scientific and expert body from the World Health Organization to the Canadian Medical Association. To the extent that the NADS is simplistic and ill-informed, it constitutes two steps backward where good policy is concerned. To the extent that prohibition appeals to true believers, however, it is good electoral politics. Coupled with the advent of mandatory minimum sentences for “serious drug crimes” – which American evidence suggests will sweep up Aboriginal and inner-city youth – Canada now has a drug strategy that amounts to a decaffeinated version of the U.S. war on drugs. Meanwhile, as the 2008 UN World Drug Report8reveals, the long-term trend in street prices for both heroin and cocaine continues its downward slide – precisely the opposite of what prohibition promises.
In 2009 there have been an increasing number of voices calling for a shift in drug policy. In January the Latin American Commission on Drugs and Democracy admitted that “acknowledging the failure of current policies and their consequences is the inescapable prerequisite for the discussion of a new paradigm leading to safer, more efficient and humane drug policies.” Two months later the Economist concluded that “prohibition has failed; legalisation is the least bad solution.” In April, a white paper by Glenn Greenwald published by the Cato Institute, a Washington-based libertarian think tank, drew attention to Portugal’s decriminalization of all drug possession and use – a move that had gone largely unnoticed in the mainstream press since it was undertaken in 2001.9
In May, Mexico’s former President Vicente Fox told CNN that “it’s time to open the debate over legalizing drugs.” On August 25, Argentina’s Supreme Court decriminalized the small-scale use of marijuana, opening the way for a shift in the country’s drug-fighting policies to focus on traffickers instead of users. Colombia and Mexico have already decriminalized the possession of small amounts of drugs.10 Brazil and Ecuador are looking at an initiative to legalize some drug use.
Even in the United States, the Democratic Senator from Virginia, Jim Webb, is sponsoring a reexamination of drug and sentencing policy – they are inextricably linked – and asking some long overdue questions concerning hyperincarceration of minorities and the policy costs and consequences of mandatory minimum sentences.11 President Obama’s drug czar, former Seattle Police Chief Gil Kerlikowske, has called for an end to the language of “war on drugs.” And this past summer, in a move that rocked the drug policy establishment, New York State repealed its Rockefeller Drug Laws, considered the most punitive, expensive and ineffective in the democratic world.
At another level, however, little has changed. Thecurrent World Drug Report calls on member nations to say “no to crime” as well as “no to drugs” and argues that “termination of would be an epic mistake.”12 In March, the United Nations Commission on Narcotic Drugs meeting in Vienna issued a “political declaration” which, at the urging of the American delegation, excluded the phrase harm reduction – resulting in 26 countries demanding explicit support for harm reduction in a footnote. In Ottawa our government introduced mandatory minimum sentences for “serious drug crimes” as part of a plan to grow Canada’s rate of incarceration, and continues to roll out its National Anti-Drug Strategy.
The singular status of drug prohibition as public policy
Since its Canadian debut in the Opium Act of 1908, drug prohibition has been the classic policy zombie – dead as an idea but still walking around because it is useful to certain interests. It finds no support outside of the interests that benefit directly from it: law enforcement agencies and drug traffickers. Various Canadian governments of different partisan stripes have committed themselves with more or less enthusiasm to it, while acknowledging sotto voce that demand reduction was the only enduring way to reduce drug abuse. Canada is a signatory to the 1971 United Nations Single Convention on Psychotropic Substances – which, among other insults to common sense, presumes that all drug use is per se abuse – so Canadian officials have played along with the international consensus, largely dictated out of Washington.
What is most vexing, from the standpoint of one who has studied this issue for the past 20 years, is that drug prohibition cannot deliver on its objectives, yet no evidence of constant failure seems to damage its appeal to policymakers. It remains resistant to reform or revision because its defenders can answer every criticism with some version of “if prohibition does not produce the results we want, it’s because of our collective unwillingness to do what is necessary to make it work.”
Prohibition is supposed to function by driving up prices to end users so that these users, being rational economic actors, will make alternative choices which better maximize their personal utility. Not only will prices rise as a consequence of restricted supply, but criminal stigmatization will also create a disincentive for rational actors to purchase drugs, since rational actors can be expected to avoid something that will harm their short- and long-term interests with regard to international travel, employment, education, access to the professions and other desirable eventualities.The logical conclusion is that there exists a quantum of pain which, if consistently and vigorously applied, will deter even the most hardcore drug addict because it’s not rational to subject oneself to the prospect of harsh punishment and diminished future prospects as a consequence of criminal apprehension.
However, as was true of alcohol prohibition, the theory on which drug prohibition rests turns out to be defective. The flaw in prohibition theory is, first, that no authority or combination of authorities can adequately control all possible sources of supply and, second, that end users don’t behave as rational actor theory predicts. What has happened in practice is precisely what happened during alcohol prohibition: the rise of a rapacious international criminal class so flush with cash that they are able to pay off or eliminate all who stand in their way, including police officials, heads of state and senior military leaders.13
In practice, artificially raising prices through restricting supply has the effect of attracting more market participants since, though risky, profits to suppliers can be expected to be higher too. On the demand side, drug users, even desperately impoverished ones, will do whatever it takes to acquire drugs at whatever price is demanded – and they will do so even from inside a prison in which they are already serving a harsh sentence. No quantum of punishment permissible under democratic principles and a Charter of Rights and Freedoms seems adequate to deter or dissuade.
What also happens in practice is what is currently unfolding in northern Mexico: open war between the trafficking gangs seeking to protect their supply routes into the United States and the Mexican police and army whose ranks and reputation have been savaged by targeted assassinations, bribery and scandal.14 In practice, prohibition increases the level of violence between competing traffickers and enforcement agencies as traffickers fight it out with one another over who will control the market. Writing in the American Law and Economics Review, Harvard’s Jeffrey Miron documented a positive correlation between the intensity of prohibition enforcement and the use of violence. Miron calculated that, as of 1999, the U.S. homicide rate was “25%-75% higher than it would be in the absence of drug prohibition.”15 Furthermore, as police pressure on drug traffickers increases, the drug economy evolves according to “survival of the fittest” principles, stimulating traffickers to innovate at a rapid pace in order to survive. Sanho Tree has written of South America’s recent history,
By escalating the drug war, the kinds of people the police typically capture are the ones who are dumb enough to get caught. Thus, law enforcement tends to apprehend the most inept and least efficient traffickers. Conversely, the kinds of people law enforcement tends to miss are the most cunning, innovative and efficient traffickers.16
The big cartels associated with Medellín and Cali have been smashed, but there are now so many smaller gangs and organizations that the police have neither the resources to combat them nor the personnel to penetrate them. Cocaine is more available today – at better purity and a lower price to end users – than it was during the heyday of the narco-cartels.
“But,” prohibition’s defenders reply, “prohibition is the morally correct policy because drugs destroy lives, devastate families and ruin communities.” This is at least half true – drugs do wreak havoc on some people, families and communities – but it is not at all clear what the effect on these same individuals, families and communities would be were drugs not prohibited. In other words, it may be that prohibition itself is the greater evil.
Editorializing on the war on drugs, Milton Friedman asked, “Can , however high-minded, be moral if it leads to widespread corruption, imprisons so many, has so racist an effect, destroys our inner cities, wreaks havoc on misguided and vulnerable individuals and brings death and destruction to foreign countries?”17 Friedman was far from alone in this sentiment, though it is too rarely expressed by people within the drug prohibition machinery. As Britain’s former drug czar, Julian Critchley, put it, “I think what was truly depressing about my time in Anti-Drug Coordination Unit was that the overwhelming majority of professionals I met, including those from the police, the health service, the government and voluntary sectors, held the same view: the illegality of drugs causes far more problems for society and the individual than it solves.”18
The last defence of drug prohibition runs something like this: “If we legalize or decriminalize, prices will fall and rates of use will skyrocket and we’ll have a public health catastrophe on our hands.” No evidence is offered for this assertion – and, as the experience of Portugal illustrates, it may not be true.
Portugal: Drug decriminalization in practice
“We all know that. We’re all reading the Portugal paper,” a member of Parliament told me in the opposition lounge this past April. The “Portugal paper” is Glenn Greenwald’s study for the Cato Institute that examines the consequences of Portugal’s eight years of drug decriminalization (not legalization). Cato has long stood against drug prohibition because prohibition offends against principles of personal liberty, licenses police intrusion into the domain of personal choice and violates the constitutional separation of powers in the United States.
What Portugal did was decriminalize the possession – though not the trafficking – of all drugs from cannabis to cocaine, turning previously criminal offences into civil and administrative violations. Portugal took this step because all the relevant indicators that concern police, drug policy and public health officials were spiralling out of control during the 1990s – and the more they criminalized, arrested, prosecuted, incarcerated and punished, the more severe Portugal’s drug problem became.
Policymakers were desperate enough to strike a commission to examine what was failing and why. But rather than assemble the usual gang of reliable partisans, the commission was charged with examining the country’s drug crisis and potential responses through the lens of public health science and evidence. In 1998, the commission concluded that the principal barrier to effective treatment was criminalization of drug use and the resources it consumed – resources that could be more efficiently targeted at prevention, education, treatment and rehabilitation.
According to Greenwald, the commission’s recommendations were intended to
redirect the focus to primary prevention; extend and improve the quality and response capacity of health care networks so as to ensure access to treatment for all drug addicts who seek treatment; and, guarantee the necessary mechanisms to allow the enforcement by competent bodies of measures such as voluntary treatment of drug addicts as an alternative to prison sentences.19
Legalization was not viable given Portugal’s international commitments, but decriminalization – of an amount not greater than a typical user would consume in ten days – was. Decriminalization, the commission reasoned, would remove the threat of criminal stigmatization and increase the demand for treatment, for which there would now be more resources and options.
So what has happened since July 2001? The most important outcomes – viewed from a public health perspective – have been a sharp rise in demand for treatment and a steady decline in lifetime prevalence rates (numbers of people who have consumed a particular drug or drugs over the course of their lifetime) for various age groups. The number of newly reported cases of HIV and AIDS among drug addicts has declined substantially every year since 2001, as have deaths from drug overdose. When treatment rates increase, crime driven by drug addiction trends downward, as fewer people are breaking into cars or houses, stealing from stores or committing similar offences. As hoped, decriminalization has blunted the worst effects of Portugal’s 1990s heroin epidemic while other relevant indicators – related to age of initiation, drug-related crime rates and spread of disease – have reversed their alarming pre-decriminalization climb. None of the horror scenarios promoted by defenders of the former “get tough” regime have come to pass.
Portugal has not “solved” its drug problem. In fact cannabis use has increased – as it has across Europe over the same period. But what Portugal has done is trade one set of big problems for a set of smaller and more manageable problems.20
What’s the lesson for Canada? Could what worked in Portugal produce similar results in the Downtown Eastside of Vancouver? Drug policy and addictions experts argue that, with minor variations, the behaviour of chronic drug abusers is comparable across different jurisdictions. What Portugal demonstrates is that demand for treatment grows where availability of treatment options is greater and the fear of seeking treatment is reduced. Rand Corporation econometric modelling has demonstrated that treatment is up to seven times more effective at reducing demand than supply suppression.21 A net reduction in demand translates not only into reduced reliance on the criminal justice system, but into a range of other positive outcomes as well. Decriminalization does not affect drug supply – so it has no impact on the influence of organized crime. Trafficking is, in any event, still criminalized. If a jurisdiction wanted to combat both demand and supply, it would require a strategy that sought to take the profits out of drug supply.
Toward the evidence-based reregulation of drugs
Drug prohibition is the last surviving experiment in social engineering from the benighted 20th century, outliving the temperance movement, eugenics, National Socialism and, with a few holdouts, Communism. It is a model of regulation that falls into the utopian trap of pretending that governments can socially engineer what individuals choose to ingest.
By regulation, I mean deliberate management of quality and access according to some set of principles and enforced by some set of authorities. Modern societies regulate almost everything that comes into contact with citizens to minimize the harm that such substances may produce if their purity, integrity, safety and access is not administered in the public interest. By and large these models of regulation work well, whether for bike helmets, food products or uranium isotopes. Not all regulation is welcomed by everyone, of course, but we are better off as a society for the deliberately intelligent management of that which touches us. Seen in this light, it is precisely because illicit drugs pose harm for some users that we should wrest control of their production, distribution and consumption from organized crime, which does not have any stake in the intelligent and humane management of our polity, and turn it over to authorities who do.
Prohibition operates in every essential respect by delegating all aspects of illicit drugs and the drug trade to a perpetual contest between suppliers and traffickers on one side and law enforcement on the other. But it is no less a form of regulation just because we don’t call it that, or because it’s unintelligent and irrational. So what would a new model of regulation look like? On what principles would it be based? Would it treat all drugs the same way?
While a full answer to these questions is beyond the scope of this article, a few points can be made. First, prohibition already treats all drugs the same way because it regards all drug use as per se abuse. A reassessment of drugs based on scientific evidence of actual harm to users and communities would rapidly conclude that cannabis should be treated differently from other drugs – indeed this has been the conclusion of all evidence-based analyses of drugs and drug policy since the Le Dain Commission of 1972. So the first issue is how to treat different drugs differently according to criteria established by public health authorities rather than the ideology of one or another group of moral entrepreneurs.
Drugs should be regulated according to principles grounded in evidence regarding their social, not individual, potential for harm and in a way that would minimize their social impact – including the violence that arises from trying to suppress drug business transactions between black market suppliers and their adversaries in law enforcement. Drugs should be regulated in such a manner to suppress, as much as possible, the potential for police corruption – which is everywhere a feature of black markets characterized by high volumes of cash transactions.22 And finally, drugs should be regulated according to principles that seek not to punish their users or abusers, but to make their use as safe as possible to everyone around them with multiple options for treatment on demand.
My own preference for how to regulate drugs arises from my democratic values, informed by a “do less harm” ethic that prioritizes the well-being of our democratic polity over the essentially consensual behaviour of individuals. From this perspective, state action to regulate what individuals ingest – beyond assuring its quality, purity and age-appropriate access – is an unreasonable intrusion. The state’s proper role is to ensure that harm, where harm arises, be confined to the individual rather than socialized across the polity through the use of the criminal justice system, higher insurance rates and other mechanisms which externalize the cost of individual behaviour to the community. This is harm reduction writ large: the state employs its powers to reduce harm to the community by, as much as possible, confining the harm to the individual drug user. The recognition – long understood by drug policy experts and epidemiologists – that much drug use produces no harm to users is effaced by the logic of prohibition.
The “do less harm” ethic can be extended. It would be a catastrophic mistake, comparable to drug prohibition, to turn over the production, distribution and marketing of all currently illicit drugs to the free market. This form of regulation would instantly give rise to economic groups with an incentive to grow the rate of use of various drugs in which they have a business interest, as happened with tobacco and alcohol. Rather, the state could cause to have produced and sold under evidence-based restrictions on age all substances currently supplied by the black market. I do not endorse growing the rate of use of currently illicit drugs. I endorse the safe and responsible use of currently illicit drugs by persons who have attained the age of majority.
My objective here is – as much as possible – to lessen the influence and role of organized crime, the largest beneficiary of the prohibitionist status quo, and refocus public resources currently consumed by the criminal justice system on treatment, rehabilitation, education and research. Thus, the “do less harm” model of regulation seeks, in this order:
- to minimize the influence and role of organized crime;
- to reduce reliance on the criminal justice system;
- to use public health strategies to reduce the harm to the community that arises from drug use and abuse but protects the user’s right to safe enjoyment.
Obviously there would be legal consequences where one person’s use conflicts with another person’s right to security of the person (such as driving under the influence). But the first step is to honestly admit that we already regulate drugs, but we do so in an unintelligent and irrational way that does not get us what we want. If we can’t have zero drug use, then we should aim for informed and moderate drug use by people who have access to a wide range of treatment options. Given that treatment is considerably more effective at reducing demand than supply reduction, there would likely be economic benefits from such a regulatory regime.23 A regulatory model premised on doing less harm would be more compassionate and humane too.
After prohibition: Beyond utopian drug control fantasies
Reducing the role of the criminal justice system in drug regulation is a reform that can be expected to meet with resistance. It would require depoliticizing our drug policy, relieving our elected officials of the compulsion to grandstand, distort, fabricate and prevaricate for short-term electoral advantage. But from a public policy standpoint – that is, from the standpoint of good policy trumping good politics – such a reduction would greatly minimize the individual harm that arises from a criminal record. And that is more consistent with our broader democratic principles, principles that have taken a beating under the impact of prohibition.
We need, it seems to me, to get over the delusion that we can “solve” social problems, including those that arise from drug abuse, through “feel good” measures like punishment and mandatory sentencing. Prohibition makes the best – complete abstinence – the enemy of the good, and as a policy response it has been failing at least since Adam and Eve were banished for altering their consciousness by eating of the tree of knowledge of good and evil. Let it not take Canada another hundred years to abandon it.