Policy > General > Effective drug policy: Why journey’s end is legalisation

Effective drug policy: Why journey’s end is legalisation

This paper will:

1. Suggest that there is much common ground between ‘incrementalists’ and legalisers.
2. Suggest that the ‘incrementalist’ position does not address the unintended consequences of criminalising supply.
3. Suggest some commonly held signposts and an endpoint.

“The ‘war on drugs’ is over. We lost. From ACPO to Nacro, pretty well everyone can agree about this.”

Marcus Roberts, ‘Out of it – Drugs, crime and social exclusion’ Safer Society, Summer 2003

“There may come a time when a policy has…become obsolete or ineffective. It may then be necessary to replace a policy with a new one to reflect different circumstances or it may be more cost effective to terminate the policy altogether.”

Modern Policy Making: Ensuring policies deliver value for money. National Audit Office, November 2001.

“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive.”

C.S. Lewis, in "The Humanitarian Theory of Punishment," an essay from "God In The Dock"

Introduction

The drugs debate has moved on a long way in the last ten years. It is no longer stagnant - polarised as it once was between prohibitionists and legalisers. Whilst those poles still exist, the significant discourse now operates between legalisers - those who wish to see prohibition replaced with democratic systems of regulation and control. And incrementalists - those who believe that prohibition can be ‘improved’ so as to mitigate some of its more negative unintended consequences. Both camps agree that ‘the war on drugs has been lost’. The former put forward a long term vision of what the world might look like when global, blanket prohibition is terminated and replaced with a system that democratically manages production, supply and use. The latter suggest that shorter-term ‘tweaks’ to prohibition, combined with harm reduction initiatives, can significantly improve policy outcomes and/or see the underlying causes of problematic use as more important than the overarching legal framework.

It would appear that the tendencies split over a few key issuesl:
1. The level of concern for the perceived negative consequences of prohibition/legalisation.
2. The level of offence that prohibition/legalisation gives to fundamentally held beliefs.
3. The level to which individuals are organisationally/politically hidebound.

To sum up, legalisers:
 find prohibition unacceptable in terms of its negative consequences
 and/or find that it offends liberal principles
 and/or see legalisation as producing more positive consequences
 and are organisationally/politically free to support legalisation.

Incrementalists:
 find prohibition acceptable in terms of its negative consequences
 and/or find that it does not offend their liberal principles
 and/or find legalisation unacceptable in terms of its negative consequences
 and/or are organisationally/politically hidebound to support prohibition.

Common ground

There is an enormous amount that legalisers and incrementalists can agree on. As Marcus Roberts so rightly points out in his article for Safer Society, Summer 2003: “From the early 1970s to quite recently, the overarching aim of drug policy has been to eliminate - or, at least, to reduce substantially - the use and availability of illicit drugs. Over this period, the principal means to that end has been law enforcement. In 1998, it was estimated that three quarters of available money was being spent on enforcement, leaving the remaining quarter for treatment, education and harm reduction. This approach has failed.”

The only disagreement here is that, at the highest levels, the overarching aim of drug policy is still eradication or substantial reduction of (at various time) supply and/or demand. This is our incumbent Home Secretary: “It is a worm that is eroding family and community life and creating criminality to feed the drugs. We have to be honest about this if we are going to mobilise the community to eliminate it (the scourge of drugs). We have to get more sophisticated. It is only the beginning of a bigger challenge. It is our domestic war.”- ‘Blunkett’s war on guns and drugs’, The Mirror, 4 July 2003. The slogan of the 1998 UN General Assembly on Drugs was “A drug free world, we can do it!” It would be silly to take the rhetoric literally but substantial reductions in supply and demand are still perceived by many as realistic.

This point aside there a number of aims that we all share. There is general agreement that an effective policy would produce good results against these goals:
1. Increased regulation and control of the drugs trade
2. Reduced drug related ill health
3. Reduced drug related crime
4. Extended provision of honest and effective drug education and information
5. Maximised effectiveness of drug-related expenditure through evaluation of evidence-based practice
6. Promotion of the rights and responsibilities of drug users, suppliers and producers
7. Encouragement of the participation of civil society in drug policy formation
8. Support of democratic governance

Added to this, all but the most ardent libertarians in the legalisation movement would also support stringent controls on the production and supply of drugs. For example: age restrictions on purchase, ingredients listing and health warnings on packaging, strictly enforced licencing of suppliers, point of supply advertising only, to name a few.

Most legalisers, whilst calling for a paradigm shift in thinking, would support a step by step approach to implementation of democratic control of the production and supply of currently prohibited drugs. As part of this process many would also support research, feasibility studies and scenario planning to produce an evidence base for change.

Options for control

There is agreement on the options for distributing drugs:
1. Unlicenced sales
2. Licenced sales
3. Pharmacy sales
4. Prescription
5. Illegal market

The question we need to ask is, which options for control would produce the best results against our indicators? Again for example, there is agreement that prescription heroin is a useful option for some addicts.

Harm reduction

Again, there is much agreement on harm reduction initiatives. However, harm reduction itself is a policy strand separate from the legalisation debate. It is intended to reduce the negative health consequences of drug use. Harm reduction initiatives can be applied toward legal or illegal drugs.

In fact, many harm reduction initiatives only serve to mitigate against harms caused by primary legislation. So, for example whilst consumption rooms reduce the harms associated with using street heroin, the supply is left in the hands of unregulated dealers. To put it bluntly, one government initiative (prohibition) is maximising harm, whilst the secondary initiative seeks to minimise that very same harm.

Decriminalisation of possession for personal use.

Also, whilst we can agree that removing criminal penalties for possession is useful, it is not a policy call that addresses the problems accruing from supply side criminalisation.

Divergence

The significant point of divergence is that legalisers wish to address the problems that arise from the criminalisation of production and supply. In the words of Richard Brunstrom, Chief Constable of North Wales Police:

‘Our drugs policy can be described as nonsense on stilts. People who inject these substances and abuse their bodies don't want to mug your granny, break into your car or burgle your house to steal your video and flog it down the pub for a tenner. They have to. We are talking about handing the keys of the asylum to lunatics. We have given control of the most dangerous substances in our society to armed criminals. This cannot be a sensible policy’.

The significant failure of policy that Marcus Roberts identifies, arises as a result of the failure to manage the supply side of the drugs market. Inadvertently a system has been created that has enabled organised criminals and unregulated dealers to control enormous demand led drug markets. This is where the significant difference in the respective positions lies. In the view of legalisers it is the blanket prohibition of drugs (the criminalisation of their production and supply) that produces many of the negative results on the indicators outlined above (and indeed many of the Government’s own indicators).

Whilst Nacro and ACPO state that the war on drugs is over, the significant supporters of its continuation are, unfortunately, those in Government with the resources and political will to continue the fight.

The executive summary of the Updated Drug Strategy 2002 states: “…we will prevent young people from using drugs by maintaining prohibition…”. The war on drugs and prohibition are synonymous. The drug laws are the main weapons in the war and, to the extent that the laws are being enforced, the war is still being waged.

However, if the war is unwinnable, there is absolutely no point in leaving our troops on the battlefield. There is no evidence to show the benefits of pursuing a prohibitionist policy. Blanket prohibition cannot be made to work and there is no halfway house position. Either the policy has failed or it hasn’t. If it has, then it needs to be terminated and replaced with a policy that meets the aims outlined above.

The case for legalisation

“If we knew then what we know now…” How many times have you heard this statement that continues: …we would never have made tobacco legal”? How about turning this on its head - “If we knew then what we know now, would we have prohibited opium and coca?” This is just to suggest that prohibition is a very radical solution to highly complex problems. Radical in that it produces extreme or fundamental changes in political, economic or social conditions and institutions. Think of the political institutions in Colombia, Afghanistan and Burma. Think of the turf wars in Jamaica. Think of the inner cities of New York, London and Moscow. Think of the criminal justice systems all over the world. Think of our prison population. Think of street sex workers. Think of bent coppers. Think of the Home Office. Think of the organisation for which you work.

How different might things have turned out had the radical solution of prohibition not been applied to drugs?

An overwhelming demand for prohibition

David Blunkett’s ‘domestic war’, as well as giving tacit support to the global war, produces overwhelmingly negative effects here in the UK. The Home Office’s own research suggests that problematic heroin and cocaine use in 2000 resulted in social and economic costs of up to £17.4 billion, nearly 90% of which is attributable to drug related crime. Clearly the vast majority of this crime is created by the policy that governs the use of these drugs – prohibition.

How did we get here? When the Misuse of Drugs Act came into being in 1971 there were a few thousand problematic illegal drug users in the UK. By 2000 this had risen to an estimated 250 000. When demand reaches this level the impact of prohibition becomes overwhelmingly counterproductive.

However, the call for legalisation is not based on the belief that ‘everyone’s doing drugs’, only that the numbers doing them are now so huge that rising demand (a hundred times greater than in 1970) is in a highly destructive collision with the immovable object of prohibition.

If we admit that the war on drugs has been lost, we are forced to recognise, that rather than botching the attempt to eliminate drugs, we must control and manage their distribution through some kind of legally regulated supply framework.

The four legal options (mentioned above) offer varying degrees of state control and regulation that can be applied as appropriate to different drugs. All would effectively remove the extraordinary illegal profits, collapsing the illegal market and remove the criminality from suppliers and users.

Legalisation would:
 reduce the prison population
 reduce property crime
 help to restore democratic structures – especially in producer countries
 restore the civil rights of users, suppliers and producers
 provide a framework for the responsibilities of users, suppliers and producers
 increase government revenue
 enable more spending on drugs treatment and education
 remove opportunities for organised crime
 enable far more ‘room for manoeuvre’ for controlling the supply of drugs
 end outside interference from the US in producer countries
 end drug-related turf wars
 end street dealing
 introduce quality control

However, let us be absolutely clear – legalisation is not a panacea. There are a number of areas that control and regulation of supply does not deal with. Legalisation will not:
 reduce use or misuse
 destroy organised crime
 address underlying causes of misuse

Lighting the way home

Transform believes that the move to regulation and control could happen within twenty years and that there is a route that we can map to achieve this goal. What is crucial now, however, is to discuss the issue of how we replace the failed policy of prohibition across communities, professions, agencies, government departments and indeed nation states, so as to develop effective alternative policies. The onus is on us all to look ten to twenty years hence, call for the troops in this war to come home and develop a Marshall Plan to reconstruct those communities and countries that have been devastated by the drug war.

The substantive policy change is not imminent, but its contemplation is justified. The Home Affairs Select Committee Report into UK drug policy (May 2002) was a fairly tame affair, apart from its final recommendation: “We recommend that the Government initiates a discussion within the Commission on Narcotic Drugs of alternative ways – including the possibility of legalisation and regulation – to tackle the global drugs dilemma.”. – paragraph 277

It is time to provide some inspiration for weary soldiers and civilians (now both refugees and victims) forced to trudge their weary way home - wherever that might be - weapons discarded, all terrified about what to do next. Legally regulated supply is the beacon that will illuminate the way home for our exhausted forces.

“The Drug War cannot stand the light of day. It will collapse as quickly as the Vietnam War, as soon as people find out what’s really going on.”
Joseph McNamara, former Police Chief, Kansas City and San Jose; Fellow, Hoover Institution

The author is indebted to Mike Jay and Ian Sherwood for their advice in writing this paper.