Drug Regimes After Legal Regulation
by Fredrick Polak, M.D.*
The system of global drug prohibition is in a process of losing credibility slowly but inexorably. The main cause of this is the fact that the illegal drug trade, drug use and addiction have increased globally instead of diminished. Many critics see this counterproductivity as an inherent and fatal flaw in drug prohibition. The war on drugs cannot be won. It is a self-perpetuating enterprise, that causes enormous harm on a global scale. This criticism is definitely reaching high-level government officials in many countries, but openly, most politicians don´t dare to drop their support for prohibition, because they don’t know how to react to charges of being ‘soft on drugs’.
Without officially distancing themselves from prohibition, most of the developed countries have adopted drug policies that are determined by the Harm Reduction paradigm. In its yearly reports, the INCB (International Narcotics Control Board) protests - without success - against certain practices (such as heroin maintenance, users´ rooms, cannabis café´s alias “coffee shops”, and even the use of the term “drug use”), because they transgress the official meaning and interpretation of UN drug conventions. The lack of impact of this yearly ritual should not be surprising, because the practices which the INCB thinks its duty to denounce, have proven to be superior in their effect on public health. To the INCB this does not seem to be relevant, because its task is restricted to the control of the implementation of the international drug conventions. The public health effects of different drug policies are not their business.
It must be pointed out that the UN drug conventions lacked scientific foundation from the start. Whereas nowadays even minor adaptations of drug policy in a more liberal direction must routinely be subjected to intensive scientific research, introduction of major repressive policies, and in fact drug prohibition itself, have never been subject to serious scientific scrutiny.
In the coming years it is to be expected that this process of losing credibility will continue. The international drug conventions have become the main obstacle to further development of rational drug policy. The countries that have taken the Harm Reduction paradigm as their leading principle will continue to bump into the drug conventions, and on more and more occasions they will transgress these unfounded and outdated stipulations. In the scientific forum there is a growing consensus that the nature of drug policies has little effect on levels of drug use and abuse. However, repressive policies do have harmful effects on the social and health status of drug users, and on many aspects of society.
Depending on the speed at which rational thinking on drug policy and resistance to the War on Drugs will spread, this will either lead to substantial renegotiation and amending of the drug conventions, or to such erosion of the drug conventions that they will simply lose their relevance to actual practice.
For that reason we should be prepared for the necessary introduction of formal, legal regulatory regimes for the drugs that will no longer be prohibited. A small historical digression may serve to indicate the scope of this task.
When it became clear, already before 1930, that American Liquor Prohibition (1919 – 1933) had been a tragic mistake, the AAPA (Association Against the Prohibition Amendment), supported by a group of important industrial tycoons, among whom the Rockefellers (who first supported Liquor Prohibition) devoted themselves to the Repeal of the Eighteenth Amendment, so that individual states regained the right to devise drug policies. It took a few years to formulate the regulations that seemed necessary to make Repeal possible.
The challenge that is facing us now is more complex. In 1933, alcohol had been outlawed for only fourteen years, and most adults were still familiar with the formal and informal rules governing alcohol use and abuse. The fears and ignorance surrounding the presently illicit drugs are enormous, and the number and diversity of substances is difficult to grasp, even for insiders.
If we want to draw up a legal system to regulate the drug market, we should first clearly formulate what we want to achieve with the regulation, and realistically assess probable as well as improbable positive and negative consequences.
A few plans for legal regulation have been made public, but there has been little analysis and debate.
The goal of this paper is to present a broad outline of the options for legal regulation. Three systems will be discussed with their expected consequences: medical prescription, complete regulated availability for adults and a combination of rationing with medical prescription, followed by a scenario in two stages, via the combined system to regulated availability.
This will hopefully serve to reduce the often exaggerated fears of radical change in drug policy to a more realistic level, but primarily this paper is meant to show that informed, critical thinking can lead to the conviction that drug legalization is feasible, and that several options exist with better prospects than prohibition. Finally, a few words about the role the UN may be expected to play in the reform of global drug policy.
Terminology and scope
The terms decriminalization, depenalization, and legalization are not used consistently in the literature on drug law reform. The terms decriminalization and depenalization refer to systems in which the prohibitive laws are either repealed, or not applied under certain conditions, without necessarily new regulations being implemented. These options will not be included in the further discussion because of the serious drawback that these alternatives will leave most of the black market in place and increase the economic incentives for the illegal trade.
In this report the term “drug legalization” applies to any system in which the presently existing general prohibition of a range of psycho-active substances is replaced by legal regulation of availability to the general public on specified conditions, and/or of medical prescription.
As to the terms addiction and dependence, this paper does not touch on the ongoing and inconclusive discussion about these concepts, their origins or causes. A wealth of literature exists on these subjects, and for the purpose of regulating drug markets, no more knowledge of the nature of habitual drug use is needed than for understanding the regulation of alcohol, cigarettes, and gambling.
It must also be kept in mind that an opinion on drug policy is not a rational consequence of factual knowledge and interpretation of historical events, scientific data and personal experience. For many people ideological, religious and emotional considerations determine their views on drugs and drug policy. This aspect will not be discussed in this paper.
The repeal of drug prohibition will have impact on the economies of many countries, not least in production and transit countries. This aspect should be seriously considered, but will also not be discussed here.
Alternatives to drug prohibition
In the debate on alternative regulatory systems for illicit psychoactive substances, some drug law reformers go no further than adopting the Harm Reduction paradigm. They shy away from the “L-word”, because they fear that this would spoil their influence in the political landscape. It is sometimes hard to tell whether they really don’t want legal regulation, or hope that harm reduction will eventually make the transition to legal regulation easier.
Others are of the opinion that illicit substances with serious risk of dependence should only be legally available on doctors´ prescription. Proponents of this view know that for the opiates, medical prescription is gaining support in many countries among addiction specialists and in the medical profession. They think that only by adopting this sort of medicalization, political support can be won.
On the other hand, the opinion is gaining ground that the health risks should be seen as reasons for legal regulation, not for prohibition. The number of drug law reform organizations that openly speak out for legalization is growing, even in the USA.
As to cannabis (marijuana and hashish), there is a large degree of consensus in the scientific forum, the reform movement, and even in governmental circles in many developed countries that, apart from its uses as a therapeutic substance, only minimal regulation will be needed. For this reason, this paper will only discuss the regulation of the other drugs, commonly referred to as “hard drugs”. There are significant differences of opinion among drug law reformers on the nature and level of medicalization that will be needed in new regulations for these drugs, and especially on their non-medical use.
After the repeal of drug prohibition, many experts expect that the increasing control of drug use by individual, internal control and by informal and group norms will not only compensate for the lessened external control, but eventually lead to a better general situation. Harming others, driving and handling dangerous machines under the influence will remain to be prohibited by penal law or regulated by civil law.
Only a handful of serious proposals exist, but there is a large number of ideas for alternative policies. One extreme is the position of the Cato Institute (Washington, DC) and American libertarians such as Milton Friedman who are against prohibition because they think that government should not interfere in private matters. Concerning production and distribution of pharmaceutical substances, they think that government regulation should be minimal. Consistent with this view, they see no virtue in government involvement in the future drugs market.
The other extreme is the tendency to minimal, incremental policy changes, in the conviction that this will enable authorities and the vested interests to adapt to new situations, influence public opinion and plan further progress. In this view, via harm reduction and medicalization in a prohibitionist system, repression may gradually be softened and finally abolished.
Description of plans
Three systems will be described in somewhat more detail. All three are not static, but should be seen as developmental scenarios.
1. MEDICAL PRESCRIPTION
Goal: every seriously addicted drug user should be able to obtain the drug(s) of choice under medical supervision.
Procedure: medical care institutions and specialized addiction centres will take full responsibility of prescribing for dependent users the drugs they want or need, while at the same time providing general medical care, psychosocial support, and if desired, addiction treatment.
The concrete procedure for drug consumers/clients/patients will range between daily visits to the clinic with supervised consumption on location, and monthly prescriptions to be delivered by pharmacies.
Other patterns of drug use (experimental use, recreative use, controlled heavy use, early and moderate addiction) are not considered as reasons to provide or prescribe illicit drugs. These groups of users will remain dependent on the black market.
Positive: the most problematic drug users will have access to good quality drugs, medical care and social support.
Negative: A costly system of provision of at least opiates, cocaine and amphetamines will have to be installed, with complicated safeguards to prevent leakage to the larger numbers of excluded users, for whom this system offers no solution. Possession of drugs outside the medical system will remain criminalized, and the illegal trade will continue to prosper.
In addition, it is is questionable whether the medical profession is willing to participate in such a system, and capable of doing this in a way that will satisfy both society and problematic drug users in the long run. It has been argued that doctors will either fail as doctor, or as drug dealer.
2. REGULATED AVAILABILITY FOR ADULTS
Goal: personal responsibility plus accountability of the producers and sales organizations.
Procedure: systems similar to existing regulations for alcohol and cigarettes will be devised for over the counter sale of a wide range of psycho-active substances. Different regulations can be devised for specific drugs and groups of drugs. There will be no advertising and no price reductions for the acquisition of large quantities.
Positive: a wide range of options for fine-tuning the necessary regulation.
Negative: there is much fear for this system, even by reasonable, knowledgeable people. Even if this system works positively beyond expectation, and right from the start, any negative development, of which we will undoubtedly witness some examples, will lead to sensational media campaigns that will make it very hard for politicians to continue their support.
3. RATIONING, COMBINED WITH MEDICAL PRESCRIPTION
Goal: Every adult person who wants to use drugs must be able to do so, within wide limits. People who want to use more frequently and/or more heavily than the rationing will allow, will get prescriptions for their drugs from medical institutions. These institutions will also provide, on demand, general medical care, psychosocial support, and addiction treatment.
Procedure: Over the counter sale to every adult person (age requirement preferably the same as for alcohol and cigarettes) who has specifically asked for one or more drugs, of daily or weekly dosages (exact quantities still to be determined). Fine-tuning will be possible for different drugs or groups of drugs. Higher or more frequent dosages must be provided at medical institutions and addiction care centers. The medical prescription system should be more flexible and client-oriented than present-day addiction centers. The attitude of the personnel will have to be more like in liquor and tobacco shops.
Positive: drug users will no longer need criminal activities to obtain their drugs. Medicalization can be reduced to the optimum, whereas the incentive for the illegal trade will be strongly reduced. Referrals to the medical prescription system will serve as safeguard for individual vulnerability.
Negative: a registration system will be necessary to identify and follow individual clients and their drug consumption, not only for prevention of double prescriptions and leakage or diversion, but also for the collection of statistical and scientific data. These data are needed to provide authorities with accurate information on usage patterns and trends, that may be needed to fine-tune or adapt the procedures. The feasibility of the registration system will depend on on the willingness of the clients to be registered as either drug consumers or addicts, and thus on their trust in the protection of their privacy by the system.
My personal opinion is that these three methods can be chronologically ordered and combined.
Medical prescription can be beneficial and useful but should not be seen as a system on its own, capable of prolonging the viability of drug prohibition. Its function should be in the process of transition from prohibition to legal regulation, to make this transition as safe as possible, and at the same time to contribute to the autonomy of users, and to the development of informal and formal norms for legal drug use.
The combined system can be the first phase after the repeal of prohibition, under the safeguard offered by medical prescription for problematic users. After a certain period, a few years, maybe even a few months, the transition can be made to complete regulated availability.
It should be stressed once more that this is not meant as the model for legal regulation, but as one option which seems realistic and safe. The most important condition for change will be however that the flexibility of the international drug treaties must be increased and allow these and other alternative systems of regulation.
Limitations of proposals for drug policy development
It must be acknowledged that social changes mostly don’t evolve in a planned, systematical way. (Drug prohibition is a constant reminder of the magnitude of unplanned consequences of social policy, regrettably.) This means that, whatever plan exists for the repeal of prohibition and the establishment of legal regulation, one should be prepared for unexpected negative developments that will necessitate fine-tuning of policies, or possibly large scale adjustments. Opponents of legalization will undoubtedly use even minor setbacks to demand the immediate restoration of prohibition. Without clarity about the fundamental principles and goals of the regulation that we plan to introduce, it will be difficult to adjust to such unexpected developments without losing perspective. Also it is of great importance to possess up-to-date and adequate data to be aware of difficulties and sufficient safeguards to react quickly and adequately.
For more specific data on the different options and on their expected consequences, extensive and elaborate preparation and preferably a scenario-study will have to be done. What is needed therefore is a thorough report, with, among others, chapters on history, interpretation of arguments, statistics and scientific data, political and public relations aspects, references from diverse sources (scientific, governmental, media).
The role of the United Nations
The most important challenge for drug law reformers is to get rid of the international drug conventions. The first realistically attainable goal is to inspire the UN drug policy organizations to re-evaluate the principles and philosophy of their policy, which is based on worldwide prohibition as the main instrument. At the minimum, the system in which one single regulatory regime covers the whole globe, with minimal latitude for regional or national differences, should be repealed, so that (groups of) countries regain the authority to devise their own drug policies.
In March 2003 the main policy setting organ of the UN, the CND, Commission on Narcotic Drugs will convene to discuss the interim results of the 1998 UNGASS, the Drug Summit (which refused to re-evaluate its policy, but did not hesitate to lay out a 10-Year-Plan with – to say it shortly – more of the same.) At the last meeting of the CND, it has become clear that the USA, together with Sweden and a number of developing countries collude to introduce even stricter prohibitive regulations, especially for cannabis. This runs totally counter to the trend in the European Union, Canada, Australia, New Zealand and a number of Latin American countries.
An important goal would therefore be to stimulate friendly countries to collectively prepare a plan for the 2003 meeting of the CND. This plan could be limited to two primary objectives:
1. A thorough re-evaluation of the results of UN drug policy must be placed on the agenda, to make up for the omission at the UNGASS 1998, the UN drug summit 5 years before.
And in the expectation that this assessment will turn out negatively:
2. A proposal to replace global drug prohibition by a system in which countries devise their own drug policies, in cooperation with like-minded countries.
The overwhelmingly harmful effects of global drug prohibition necessitate serious thinking about alternative policies. Three options are discussed in this paper.
Regulated availability for adults along the lines of alcohol and cigarettes is the rational choice. This system, which is in accordance with widely accepted social norms and fits best in modern western society, will bring many advantages, but it seems difficult to garner enough political support because of widespread fears.
Medical prescription will more easily get support in political circles, but in the long run it is improbable that doctors can provide the kind of care that will be needed for this policy to be succesful. In addition, non-medical drug use (which is most frequent) will not be addressed by medical prescription.
An intermediate proposal is the combination of rationing for non-medical users with medical prescription for problematic users. This system can only function with efficient nation-wide registration. Drug users will have to be convinced that they can trust the protection of their privacy in this registration.
At long last, the UN should perform a serious evaluation of its policy of global drug prohibition, and (after reaching the conclusion that this policy is harmful to public health, does not diminish drug addiction, promotes the illegal drug trade, disrupts the economies of many countries, provides financial support to criminals and terrorists, and has a range of other harmful effects on many aspects of society) start deliberations about alternative policies.