How do we get out from under the zombie policy of drug prohibition?

A longtime student of the unintended consequences of drug prohibition, Craig Jones was Executive Director of the John Howard Society of Canada during the rollout of the Harper crime agenda and then of the National Organization for the Reform of Marijuana Laws in Canada (NORML) until the legalization of cannabis. He was interviewed by email by Inroads editorial board member Gareth Morley, whom he would like to thank for offering substantive criticisms which improved this piece.

GARETH MORLEY: In July 2020, the Canadian Association of Chiefs of Police endorsed “alternatives to criminal sanctions for simple possession of illicit drugs.” Dr. Bonnie Henry, the hugely popular Provincial Health Officer in British Columbia, put out a report calling for decriminalization of people who use drugs back in April 2019 and Premier John Horgan has recently written to the Prime Minister about it. Do you think decriminalizing consumption of all drugs is an idea whose time has come?

CRAIG JONES: Before talking about the present moment, let me put a few things on the table about how we got here, because this issue is moving really fast.¹ Some readers might think we reached the point where we are breaking mortality records every month because of a breakdown in public, specifically drug, policy.

The truth is that drug policy, legislation and enforcement in this country have from the outset been about demonizing and punishing drug users as a threat to good, regular people – as moral sanction for behaviour that violated late-19th-century Victorian norms and values. The original intent of the Opium Act of 1908, and all subsequent amendments to it, was to deter and denounce through punishment and criminal stigmatization. It was never about rehabilitation or recovery or reintegration of drug users, much less about minimizing the risk to them. What we today think of as “drug policy” was “moral reform” or “rearmament.”

Seen in its original context, the Opium Act is properly understood as an assertion of the social power of one group against a racial minority in the guise of responding to a moral threat.² As G.E. Trasov wrote in 1962,

Marked hostility to the use of opium did not become apparent until the Chinese became competitors for jobs previously held by white people. During a labour shortage the Chinese were regarded as industrious, sober, economical and law-abiding. They were highly regarded as domestic servants and gardeners. However, when the railroad construction and “Gold Rush” relaxed its intensity and the influx of white people again produced a surplus of labour, the earlier friendly feelings toward the Chinese changed to hostility. There was a great demand that Chinese immigration be restricted or discontinued.³

Criminalization and legal sanction are expensive responses to any problem. There is no evidence that they are effective as drug policy, if “effective” means minimizing the health risks from drugs. What they do is perpetuate the ideological, moral and racial interests embedded in the original legislation, all of which could be summarized as the idea that a drug user is a threat to the rest of us, in need of punishment.

In this respect, Canada was in step with the global effort to control and regulate the trade in psychotropic substances.⁴ What emerged from a protracted tug-of-war among the professionalizing of doctors and pharmacists, the business interests of pharmaceutical companies, the national security interests of nation-states and the push and pull between moral entrepreneurs and their opponents was a regulatory regime targeting the supply of drugs arising from the belief that oversupply caused abuse. All parties wanted these substances available for scientific research and alleviation of pain, but they also wanted to capture the value-added generated by their production, processing and export. Supply suppression – at the source and on the street – became the operating principle and remains so to this day. By an accident of history, the responsibility for Canada’s supply suppression regime fell to the same people charged with its enforcement. Drug prohibition came to be an instrument favouring the bureaucratic advancement of law enforcement authorities.⁵

What we today call “drug policy” carries this burden from the intent of the original legislation: it’s about deliberately imposing pain, not minimizing risk. The lesson of our long experience teaches us that drugs are things people want to consume, with health risks they want to avoid. Drug policy, properly conceived, would try to help people avoid those risks without causing them more harm than the use of the drugs themselves.

So that brings us to the current crisis. On May 30, 2019, Statistics Canada reported “4,108 drug overdose deaths in Canada in 2017.” This represented an increase “from 5.8 deaths per 100,000 population in 2015 to 11.5 deaths per 100,000 population in 2017. The rise in mortality rate over this two-year period was 1.7 times greater than the increase over the previous 15 years.”⁶ Since the onset of pandemic 2020, the death rate has spiked alarmingly.⁷ In British Columbia this year, drug overdoses killed 554 people as of the end of May, according to the Globe and Mail.⁸ Quoting data from the Ontario coroner’s office, the CBC reported that “there was roughly a 25 per cent increase in overdose deaths from March to May 2020 compared with the same three-month period last year.”⁹ In Alberta, according to the same report, “the number of opioid-related calls to Emergency Medical Services went from 257 in March to 550 this May.” The pandemic has exacerbated an already serious crisis: isolation is dangerous to people with an opioid addiction.¹⁰

Why is this? Several reasons, all traceable to the problem of getting appropriate supplies and treatment for those who need them. The pandemic lockdown administered a shock to the established supply chain for illicit substances, interrupting supplies of heroin and provoking traffickers to substitute more fentanyl than they otherwise might.¹¹ Drug traffickers don’t actually want to kill their clients, but they are not the most diligent chemists either. Fentanyl is considerably more potent than heroin, which means it is easier to conceal and secret across international boundaries. Because profit drives all considerations in black market economics, not purity or safety of the user, there is an economic incentive to substitute fentanyl for harder-to-acquire heroin. Fentanyl delivers “more bang for the buck,” so the spike in deaths is a product of users not understanding the potency of the drugs they’re purchasing on the street – a problem that a regulated market would resolve.¹² These deaths are the unintended consequence of disruption to the opioid supply chain coupled with pressure for profits as traffickers and suppliers cook up concoctions in their home laboratories.

Additionally, the “shelter in place” requirement imposed by the pandemic inhibits drug users from using in safe injection sites where they can be monitored and overdoses reversed. Isolated from frontline harm reduction specialists, and from one another, they die alone when they could have been saved by prompt administration of naloxone. The psychosocial stress of lockdown – the severing of contact with social networks, co-workers, etc. that had been helpful to their recovery plus heightened anxiety about contracting the virus – has increased the incidence of relapse. June saw 175 preventable deaths in B.C., a new record.¹³

For people who study drug policy and its real-world effects, the time to decriminalize came long ago. What’s ironic about the timing is that when you talk to police managers in private – away from cameras and microphones and off the record – they were saying all this 20 or more years ago. Ask any student of drug policy reform how many times they’ve heard police say some variation on “we’re never going to arrest our way out of our drug problem.” So it would appear to me that the answer to the question “What will make police managers say – on the record – that drug prohibition does not and cannot work?” is “pandemic.”

GARETH MORLEY: What do you see as the major harms of prohibition?

CRAIG JONES: The most damaging harm is its effect on liberal democracy.

First of all, prohibition of a substance people want requires organized crime to meet the demand. As organized crime becomes increasingly powerful and violent, police and security agencies grow to address it. In effect, police and criminal organizations develop a symbiotic relationship. This empowers the two social forces most menacing to liberal democracy: organized crime and organized repression. One is interested only in profit, the other in growing its organizational ambit.

Public choice theory holds that police agencies will use the growing menace of organized crime to justify greater resources and enhanced surveillance powers.¹⁴ The United States is the poster child for a police culture that is at war with a large part of its own population because a war on drugs is in practice a war on drug users. Radley Balko has documented this ominous development and it is almost entirely driven by the war on drug users.¹⁵ The disproportionate effect of drug war policing is always on minority and marginalized communities. At its peak, the United States incarcerated 25 per cent of all prisoners in the world, despite having only 5 per cent of the planet’s population. The vast majority were sentenced for offences – possession or trafficking – arising from the supply suppression strategy of the war on drugs coupled with mandatory minimum sentencing laws.¹⁶

In addition, since the Reagan era, ordinary police forces across the United States have become increasingly battle-ready in response to the militarization and growing violence of drug traffickers gunning it out in the streets and neighbourhoods for control of markets.¹⁷ The lion’s share of drug-related violence arises not from drug use or the effects of drugs on users but from black market transactions – principally control over street-level markets. This is well understood among drug policy researchers.¹⁸ Because these disputes cannot be litigated in courts of law, drug traffickers employ violence and assassination of rivals: it is a replay of alcohol prohibition but on a much larger and more lethal scale.

Prohibition imposes a form of natural selection on traffickers: only the most ruthless and violent survive as the weaker and less efficient are weeded out by law enforcement. Prohibition, then, incentivizes an upward spiral of violence and disorder as the less capable are eliminated by law enforcement and the more efficient capture market share.¹⁹

Drugs, in particular, are incredibly profitable – which is why Mexican cartels are able to hold off the Mexican army, construct multiple air-conditioned cross-border tunnels, buy off the judicial system, bribe border officials, pay off lawmakers, lose a certain amount to seizure and still reap astronomical profits. In the process, of course, they kill thousands of innocent and not-so-innocent people through intercartel competition over supply routes and markets.

And finally, drug prohibition is, in theory, supposed to raise prices so that users migrate to less expensive and even legal substitutes, like alcohol. Indeed, the increase in price from farm gate to end user is impressive.²⁰ But the overall trend since the 1990s has been a decline in price, with more actors entering the market along with an increase in purity. Furthermore, prohibition not only creates a globe-spanning underworld of violent criminality, social mayhem, failed states, mass killings and money laundering but also, as it turns out, provides cheaper and more potent drugs at the street level ²¹: “In 1979, a milligram of pure heroin sold for about $9 in today’s prices; today it costs less than 25 cents. Fifty grams of fentanyl – just over an ounce and a half – has the punch of a kilogram of heroin, and it’s way, way cheaper.”²² Why is this? Because prohibition compels traffickers to constantly reduce the physical bulk of any given product relative to its potency: reduced bulk improves prospects of successful transport to the end user but increased potency also increases the potential for overdose. It is for these reasons that The Economist refers to legalization as the “least bad solution.”²³

GARETH MORLEY: How would you explain a “harm reduction” approach to substance use?

CRAIG JONES: When I put on a seatbelt or bicycle helmet, I’m not reducing the chance of a road accident, I’m reducing the harm that may arise from an accident. This is ordinary, garden-variety harm reduction and it’s uncontroversial. The same is true of substance use: a large percentage of people – we don’t actually know how large – use these substances with few bad consequences, as with alcohol, while a minority overdose or are poisoned by adulterants.

So a harm reduction approach to substances such as those killing users across Canada would make these substances available in doses that would alleviate the craving associated with addiction in as safe a way as possible. But this would only be a step toward recovery and rehabilitation. Harm reduction is about keeping people alive long enough to entice them into recovery and rehabilitation. It is about reconnecting people to affirmative networks of care and compassion. I am of the view that the opposite of addiction is connection: addiction is an extremely lonely state of being. Harm reduction offers the hope of reconnection with a loving and caring community if only we can keep the user alive long enough.

GARETH MORLEY: What do you say to concerns that decriminalization, let alone legalization, would increase substance use, especially of opioids?

CRAIG JONES: First, opioids are – and have long been – the last word in the management of physical and psychosocial pain. That’s their enduring appeal since at least the Bronze Age.²⁴

Second, we have to get over the idea that “drugs” are the problem. Human beings are the problem and the drugs are, for some, a solution – it’s just that prohibition results in a toxic and often poisoned drug supply. Nobody endorses a lifetime of drug use as a solution to chronic pain or psychosocial displacement: human beings need love and connection and meaning and hope in their lives, but those things are not easy to come by for some people with complex trauma or mental illness.

Third, there is no evidence to substantiate this concern. People have other reasons for not becoming addicted to opioids other than fear of the criminal law. If criminal justice instruments were effective in the management of substance abuse problems, a hundred years of prohibition ought to have demonstrated that. Public health problems are manageable with education, prevention and rehabilitation. We should be less interested in what people put into their bodies and more interested in ensuring that it’s pure and unadulterated. We regulate the purity and toxicity of many other products, with great success, so why not these?

If, in the wake of decriminalization or legalization, we see an increase in opioid use – presumably because they’re no longer criminally stigmatized – then we’ve got to address the question of why we accept so much untreated psychosocial and chronic pain. In other words, we’ve got problems bigger than opioid use. People self-medicate, and always have, with a variety of substances and activities – food, shopping, sex, work, alcohol, Jesus – to make their lives tolerable. I’m certainly not advocating wider use of opioids, but I do think that we as a society have been dismissive of, even cruel toward, people suffering complex trauma and untreated or undertreated pain.

What if we discovered that some people could greatly improve the quality of their lives – maintain jobs, sustain families, be productive and contributing members of their communities – while addicted to safe and regulated opioids that did not kill them or require regular transport to an emergency ward? Would they be worse off? Would we? These are the kinds of questions that we should have the courage to ask, once drug use is stripped of its stigma.

Intelligent people governing a mature democracy ought to be able to ask themselves, “How did we get here and what corrective lessons can we draw from our errors?” That’s what we need to do in regard to all aspects of drugs, dependence and addiction. We need not stay imprisoned inside the prejudices and particular interests of another age. We have learned so much since the legislative foundations of drug prohibition were laid in the late 19th century. What, except path dependency and political cowardice, prevents us from applying that learning to our current situation?

GARETH MORLEY: Many people think that the increase in opioid use disorder in the last 20 years was due to overprescription of legal opioids by doctors, encouraged by pharmaceutical companies. Do you agree with this? If you do, doesn’t that suggest there are dangers in a legal market as well?

CRAIG JONES: There are dangers in every kind of market. The question is whether some markets are more susceptible to generating harm than others, and I think our experience demonstrates that unregulated markets are the most dangerous of all. Whatever we can do to shrink the power and influence of the black market, we should do. Overprescription of opioids has raged out of control across the United States, driven by a combination of rapacious profit-seeking corporations, political pressure to deregulate markets and lessen surveillance of opioid prescribing and the willingness of doctors to be bribed by Big Pharma.²⁵ But there’s more to this story than the malpractice of doctors, the indifference of policymakers or the criminality of corporations, and reregulation along the lines I propose is not a panacea because there is no panacea.

What accounts for the demand for pain relief? Isn’t that question at the root of this crisis?

We have an epidemic of physical and psychosocial pain and opioids blunt the impact of that pain – until they become the cause of their own problems. Could it be that the winner-take-all political and economic civilization we have developed is as injurious as its critics claim? Why are there not less toxic alternatives to opioids for this kind of pain management? Why are there not more treatment options for people with chronic pain, chronic mental illness and complex trauma? The fact is that, once drugs were decriminalized and destigmatized, many people could manage their pain and reclaim their lives, if they were not in danger of overdose, fentanyl poisoning or incarceration for possession.

Bottom line: the demand for opioids – and other pain-mitigation remedies – is telling us something profound and important about ourselves. We need to get to the root of that and figure out what it means and how to address it. In the meantime, we ought to try to keep people alive, reduce the burden on our emergency medical services and relieve the police of a job they should not have to do.

GARETH MORLEY: What, from your perspective, would be the most effective way to address overdose deaths from fentanyl and synthetic opioids?

CRAIG JONES: The first thing would be to ask the users themselves, their advocates on the front lines and the people working in harm reduction and safe injection sites. I do not envision a single model for every community with an opioid epidemic. I suspect that individual communities will respond to their specific needs in their unique ways and some models will scale better than others. The most effective way to address overdose deaths is to find whatever works to keep people alive.

The second thing I would do is make available a supply of clinically pure heroin – or appropriate analogue – that people can use in supervised settings without risk of overdosing and establish the structures and institutions to provide rehabilitation and recovery from those opioids when and as people are ready to exit. Some, of course, will take longer than others – and there will be no one-size-fits-all method for transitioning people off opioids.

GARETH MORLEY: Criminal law responds to deeply held moral values in society more than to evidence. How do you think that can change?

CRAIG JONES: Parliament sets the criminal law and Parliament can amend it. Moral values change as our understanding of human affairs changes. In my childhood, it was scandalous for a black woman to marry a white man. Today it’s not even noticed except by a small cadre of retrogrades. Only a few years ago it was illegal for two people of the same sex to marry. Today we acknowledge same-sex marriage as a basic human right – and no serious person is advocating turning back that clock. There will always be small factions of people for whom any social change is unacceptable, but they ought not dictate social policy, which should be humane and compassionate and responsive to human needs.

Prohibition is immoral. It “works” for the wrong interests. If it actually reduced drug-use-related harm, one could make a case for it – but is there any evidence that we can make prohibition work if we give it another hundred years?

GARETH MORLEY: What would you like to see the government of Canada do?

CRAIG JONES: If you look around the advanced democracies, they’re all wrestling with how to get out from under the zombie policy of drug prohibition. It doesn’t work. It never did and it only enriches organized crime and expands police and security interests.²⁶ First, I would give the United Nations six months’ notice that Canada is vacating the international Drug Conventions. Then I would like to see the federal government commission a panel of epidemiologists, public health specialists, addictionists and rehabilitation therapists to tour the country, visiting large and small communities, to ask “What’s the best suite of solutions for your community? How can we make that happen and what resources do you need?” They could visit Portugal and Amsterdam to ask “What would you do differently with the benefit of hindsight? What ought Canadians to learn from you?”

This has to be, as much as anything else, a public education initiative because prohibition has been protected by a bodyguard of lies, myths and misinformation. We have to explain to Canadians why a century of prohibition has not worked and walk together with them toward an ensemble of solutions tailored to the needs of our various communities. We have to prioritize compassion and evidence-based solutions, put the humanity of users front and centre and be unafraid to do the right thing. Is that a big ask?

Short of that, do this thought experiment: draw a circle around the drugs you can’t possibly imagine regulating – methamphetamine, crack, whatever – and those are the drugs you consign to organized crime.

The way I see it, public policy is about trading big problems for smaller and more manageable ones. Usually, evidence is necessary but not sufficient: political will – for which demand always exceeds supply – is imperative. As are luck and intelligence. We legalized cannabis – after a thoughtful and deliberative public consultation – and in so doing we relieved thousands of mostly inner-city and minority kids of the burden of a lifelong criminal record. That’s a big deal, because a criminal record forecloses all kinds of life options as one matures out of one’s cannabis-using years. Not only did the sky not fall, but no one is seriously arguing for its recriminalization. If we’re lucky and smart, we can do the same thing with opioids and prevent a lot of people from dying.

This pandemic crisis presents us with an opportunity to make some long overdue changes to failed policies that have imposed unnecessary and inhumane harm and suffering. Opportunity always accompanies crisis: if we approach this moment with the kind of thoughtful deliberation that infused the Le Dain commissioners,²⁷ we can turn the corner on the zombie politics of prohibition. We can save lives. We need not careen blindly down the path of moral panic bequeathed to us by the generation of the Opium Act. We can do better. We must.

Notes

¹ Sean Fine and Ian Bailey, Canada Takes Step to Decriminalize Drug Possession amid Opioid Crisis, Globe and Mail, August 20, 2020.

² The theme of racial pollution runs through the public discussions of the day: there is recurring reference to how easy it is for young, innocent white women to fall under the malevolent influence of Chinese opium users. A passage from Emily Murphy’s The Black Candle (Toronto, 1922) puts it concisely: “The traffic always comes with the Oriental, and … one would therefore, be justified in assuming that it was their desire to injure the bright-browed races of the world. Some of the Negroes coming to Canada … have similar ideas, and one of their greatest writers has boasted how ultimately, they will control the white man” (pp. 186–89).

³ G.E. Trasov, “History of the Opium and Narcotic Drug Legislation in Canada,” Criminal Law Quarterly, Vol. 4 (1962), p. 278. See also W.P. Ward, “White Canada Forever: British Columbia’s Response to Orientals, 1858–1914,” (PhD Dissertation, Department of History, Queen’s University, 1973).

⁴ The best comprehensive history of drug control politics is William B. McAllister, Drug Diplomacy in the Twentieth Century: An International History (London: Routledge, 2000).

⁵ The best history of Canada’s drug policy evolution is P.J. Giffen, Shirley Endicott and Sylvia Lambert, Panic and Indifference: The Politics of Canada’s Drug Laws; A Study in the Sociology of Law. (Ottawa: Canadian Centre on Substance Abuse, 1991).

⁶ Statistics Canada, Age-Standardized Mortality Rate for Drug Overdoses Nearly Doubles from 2015 to 2017, The Daily, May 30, 2019.

⁷ “Before COVID-19, overdose deaths were coming down and BC was headed in the right direction. Last year, deaths were down 36% year over year (979 deaths in 2019, down from 1,546 deaths in 2018), the first time deaths had gone down since 2012” (personal communication from the British Columbia Ministry of Mental Health and Addictions).

⁸ “Ottawa Should Listen to Police Chiefs: Drug Use is a Health Care Problem, Not a Crime,” Globe and Mail, July 12, 2020.

⁹ “Pandemic Worsens Canada’s Deadly Opioid Overdose Epidemic: Ontario’s Coroner Reported a 25% Rise in Fatal Overdoses as Advocates Warn of Increasingly Toxic Street Drugs,” CBC News, June 10, 2020.

¹⁰ The Canada Emergency Response Benefit (CERB) may have exacerbated this crisis by putting money into the hands of the chronically addicted.

¹¹ “Postmortem toxicology results suggest that there has been a greater number of cases with extreme fentanyl concentrations in Apr-Jun 2020 compared with previous months” (B.C. Coroners Service, Illicit Drug Toxicity Deaths in BC, January 1, 2010 to June 30, 2020, p. 6.

¹² “The number of illicit drug toxicity deaths in June 2020 equates to about 5.8 deaths per day” (Ibid., p. 1).

¹³ Dr. Christy Sutherland interviewed on Day 6, CBC Radio, July 24, 2020; Amanda Coletta, “Canada’s Other Health Crisis: As Overdoses Surge, Officials Call on Government to Decriminalize Illicit Drugs,” Washington Post, August 16, 2020.

¹⁴ Bruce L. Benson, David W. Rasmussen and David L. Sollars, “Police Bureaucracies, Their Incentives, and the War on Drugs,” Public Choice, Vol. 83, No. 1/2 (April 1995), pp. 21–45.

¹⁵ Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces (New York: PublicAffairs, 2013).

¹⁶ The Sentencing Project, Criminal Justice Facts. Harsh sentencing laws are another example of zombie policies that survive every refutation by evidence because they are useful to private prison contractors, correctional officer unions, politically ambitious prosecutors and others. See Michael Tonry, “Fifty Years of American Sentencing Reform: Nine Lessons,” in Michael Tonry, ed., Crime and Justice, Vol. 48: American Sentencing: What Happens and Why? (Chicago: University of Chicago Press, 2019).

¹⁷ Abigail R. Hall and Christopher J. Coyne, “The Militarization of U.S. Domestic Police,” Independent Review, Vol. 17, No. 4 (2013), pp. 485–504.

¹⁸ Dan Werb, Greg Rowell, Thomas Kerr, Gordon Guyatt, Julio Montaner and Evan Wood, Effect of Drug Law Enforcement on Drug-Related Violence: Evidence from a Scientific Review (Vancouver: Urban Health Research Initiative of the British Columbia Centre for Excellence in HIV/AIDS,March 2010).

¹⁹ The history of the command of Mexico’s Sinaloa Cartel by Joaquín Guzmán Loera, a.k.a. “El Chapo,” is an illustration.

²⁰ See Jonathan P. Caulkins and Peter Reuter, Drug Prices and Markets: What Price Data Tell Us about Drug Markets.

²¹ See Talia Bronshtein, Explore How Illegal Drugs Have Become Cheaper and More Potent over Time, Stat, November 16, 2016.

²² Mark Kleinman quoted in George F. Will, Today’s War on Drugs is More Than Just Cartels at the Border, Washington Post, March 15, 2019; see also Christopher J. Coyne and Abigail R. Hall, Four Decades and Counting: The Continued Failure of the War on Drugs, Cato Institute Policy Analysis No. 811, April 12, 2017.

²³ “How to Stop the Drug Wars,” The Economist, May 5, 2009.

²⁴ Virginia Berridge and Griffith Edwards, Opium and the People: Opiate Use in Nineteenth Century England (New Haven, CT: Yale University Press, 1987).

²⁵ See the Frontline documentary Opioids, Inc.

²⁶ The Global Commission on Drug Policy is a collection of former heads of state, business leaders and senior state managers who have “come clean” on the costs of the global war on drugs. Their multiple reports detail the destruction caused by this failed strategy to attack the supply side of the drug problem.

²⁷ The Le Dain Commission report – Report of the Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs (Ottawa: Information Canada, 1972) – is a masterwork of public policy analysis and deliberation. It is thoughtful, thorough, deliberative, exhaustive, philosophically nuanced, balanced and intelligent. It is a gold-standard example for how tough public policy problems should be examined. All these years later, it is still worth reading. We should commission Beverley McLachlin to update it for our era.