Prohibition is obsolete as a concept
Preface
In 2013, the University of Vermont, in an effort to reduce the number of plastic bottles going into the waste stream, issued a campus-wide ban on bottled water with the ecologically-minded intent that people would bring their own refillable water containers. (Kingkade, 2015) Two consequences occurred as a result of the ban: 1) the number of containers discarded actually increased, and 2) there was an increase in the consumption of unhealthy sweetened drinks; which further resulted in an increased potential for unhealthy weight gain.
In economics there is an idea first associated with the English philosopher and physician, John Locke. In a letter to a Member of Parliament in 1691, Locke attempted to dissuade the government from dropping the lending rate from 6% to 4% in order to raise the value of the currency, by citing a list of arguments he called unavoidable consequences. Today we know this sentiment as The Law of Unintended Consequences: the actions of people always bring about results that were neither anticipated nor intended.
This is equally true of governments that enact social policy laws whose intent, like the ban on bottled water, is to bring about a positive social benefit, but which in fact sometimes result in conditions that are more deleterious than the original issues the legislation was meant to address. This paper will argue that legislative prohibitions on psychoactive substances not only fail to eliminate the harm that results from misuse, they actually inflict more harm on individuals and society at large.
In Principle...
Obsolete
The purpose of this paper is not to dispute that drugs are dangerous. Nor is the purpose to propose what the social policy laws ought to be. The purpose of this paper is quite simply to show why current prohibition-based legislation in Canada, the United States, and elsewhere, is obsolete.
The definitions of the adjective obsolete considered appropriate for this context are, "out of date," and "ineffective."
What is out of date and ineffective about prohibitive laws with respect to psychoactive substances is a set of moralistic notional constructs that justify them:
What truly undermines the prohibition stance, however, are all the unanticipated, unintended, and/or ignored (consciously or otherwise) consequences that derive from these outdated notions.
Consequences
Stigmatization - A Result of Criminalization
Boyd, Boyd, and Kerr (2015) observed in their study that,
What these researchers are in essence saying, is that the difference between a person who uses a substance, and a criminal, is legislation. The very act of prohibiting a substance automatically shifts how we view them; they are no longer simply people, but are now deviants. Deviants are threats, and threats need to be controlled by whatever means necessary.
This type of stigmatization is nowhere more evident than in the people we employ to enforce the laws. The study (Boyd, Boyd, & Kerr, 2015) was conducted to a) review the language and images used in reports issued by the Vancouver Police Department (VPD) between 2008 and 2013, and b) determine what can be concluded about how they perceive people. While the intent of the 2008 VPD report was to legitimately raise awareness of what they saw as a "mental health crisis" demanding much of their resources, the content of their narratives was shown to conflate mental health disorders with addiction, and by extension further associate them with poverty, homelessness, and disease. Associating mental health issues with addiction and these other societal issues shapes how people with these issues are perceived, and they become stigmatized as being a part of the lowest order of society; criminals.
Violence - A Result of Enforcement
In another study, published in the International Journal of Drug Policy, the authors (Werb, et al., 2011) found a significant correlation between police response and violence in the drug market. They state, "contrary to the conventional wisdom that increasing drug law enforcement will reduce violence, the existing scientific evidence base suggests that drug prohibition likely contributes to drug market violence and increased homicide rates...".
Another counter-intuitive example from the same study is what followed after the figurative beheading of two powerful Colombian drug cartels. What remained was a power and market vacuum that became filled by a "fractured network of smaller cocaine producing cartels that increasingly used violence to protect and increase their market share." A related consequence was found in the observation that when a cartel or supplier organization was repeatedly placed under attack, a phenomena called "target hardening" occurs. The group under attack becomes increasingly militarized over time.
This last consequence was dramatically depicted in the NBC series, The West Wing. In a storyline spanning season 2, episodes 13, entitled "Bartlet's Third State of the Union" aired February 7th, 2001, and 14, entitled "The War at Home" aired February 14th, 2001, five plainclothes DEA agents are abducted by a Colombian drug cartel while carrying their DEA identification. The fictional White House Chief of Staff, Leo McGarry, reports to President Bartlet that, "The government has no control over the region. There is no law, and they're going to shoot these guys in the head, and then have a parade."
President Bartlet, based on intelligence reports that the DEA agents will be moved along a certain route, orders a raid by a team of Special Forces to rescue the agents. When the team's two helicopters arrive at the designated spot, one of them is shot down by a shoulder-mounted surface-to-air missile, and the nine military personnel on board are killed. The President is enraged upon learning that the intelligence report was manufactured by the cartel with a guy on a shortwave radio, and that it had been a trap all along.
Imbued with a moral and political dilemma about whether the U.S. military should be deployed to the jungles of Colombia to destroy the drug cartel, the drug story line finally resolves itself in a quiet conversation between Leo McGarry (LM) and President Bartlet (PB) in the Oval Office:
LM: "I checked outside, I thought you'd be having a cigarette."
PB: "Let me tell you something, Leo. After heroin and cocaine, tobacco is next."
LM: "Great. Another criminal empire we can give birth to. There'll be speakeasies all over Chicago where you can get smuggled cartons of Marlboro Lights.
I fought a jungle war. I'm not doing it again. If I could put myself anywhere in time, it would be the Cabinet Room on August 4th, 1964 when our ships were attacked in the Tonkin Gulf.
I'd say, 'Mr. President, don't do it. You're considering authorizing a massive commitment of troops and throwing in our lot with torturers and panderers, leaders without principle and soldiers without conviction, with no clear mission and no end in sight.'
This war, is at home.
Its casualties are in our prisons not our hospitals.
The amount of money the American government is spending in Colombia is the exact same amount American consumers are spending buying drugs from Colombia.
We're funding both sides of this war and we'll never win it that way."
Leo McGarry gets it.
The story line clearly demonstrates the unintended consequence that police and military action begets ever-escalating violence and death, and also shows the terrible economic burden placed on the American people through the prosecution of an unwinnable war on drugs.
Oppression - A Result of Justice
Despite the goal of equal justice for all, governments have repeatedly enacted the laws that effectively used law enforcement and the courts to, intentionally or unintentionally, target certain elements of society deemed to be of a less desirable class.
In 1907 (Csiernik & Rowe (Ed.), 2010), for example, Deputy Minister of Labour William Lyon Mackenzie was dispatched to Vancouver to investigate unrest between white and Chinese labourers, who were considered at the time to be a lesser class of citizen. While there, Mackenzie was "shocked" to discover that white women were being lured by opium use into prostitution "servicing Chinese men." He wrote a report to parliament entitled, Report for the Need for Suppression of the Opium Traffic in Canada in 1908, clearly targeting the Chinese underclass.
In the U.S., cocaine laws have been skewed in a way that result in more convictions and incarceration for blacks than whites. Kennedy (1994), in his comment on criminal law and racial discrimination, discusses the Minnesota Supreme Court case, State v. Russel, in which a state law was struck down that was shown to "punish possession of crack cocaine more harshly than possession of powdered cocaine." "Most persons," said Kennedy, "convicted of possessing powdered cocaine were white, and most convicted of possessing crack were black." The law, in effect, had the (ostensibly) unintended effect of creating racial disparities in terms of the punishments meted out. This is echoed in a commentary by Meares (1997) in which the author states, "Harms associated with drugs and drug law enforcement disproportionately affect African Americans." He goes on to say that, "the federal sentencing policy for cocaine offenses is an example. According to federal statute, a given amount of cocaine base or "crack" cocaine triggers the same mandatory penalties as 100 times as much powder cocaine."
Conclusion
We as a society need to outgrow the ineffective and outdated moralistic notions that are currently informing the prohibitive nature of our drug laws. We need to make the effort to listen to the academics, medical community, and the addicts themselves, and learn how we can be more effective in dealing with the often devastating harms visited upon human beings through the abuse of psychoactive substances.
In the vain effort to prohibit all access to and non-medical use of psychoactive substances, many governments have chosen to institute draconian social policy laws which not only fail to achieve their desired outcomes, but actually bring down on individuals and society at large, often brutal unanticipated and unintended consequences.
The very act of criminalization itself has been shown to stigmatize an already compromised human being at a time when they are most vulnerable. The inherent limits of law enforcement to disrupt the flow of illegal substances needs to be recognized; even after decades of prohibition, the cartels still exist, the drugs are making their way across heavily defended boarders, and local drug dealers still find a ready market for a product with a profit margin of 6000%. Furthermore, intense efforts by law enforcement once thought to be sufficient to accomplish the task of interdicting, have actually been found to exacerbate the prevalence of violence by forcing the supply chain to protect its market in an increasingly militaristic fashion.
Finally, the overloaded justice system, intended to protect people from unfair treatment under the law, has been warped into a tool of state imposed oppression and forced to deliver ever increasing penalties on the poorest and most disadvantaged segments of society.
Prohibition as a concept is not only obsolete, it is virtually bereft of utilitarian virtue.
References
Boyd, J., Boyd, S., & Kerr, T. (2015). Visual and narrative representations of mental health and addiction by law enforcement. International Journal of Drug Policy.
Csiernik, R. (2011). Substance Use and Misuse: Everything Matters, Toronto, Canadian Scholar's Press Inc.
Csiernik, R., & Rowe, W. S. (Eds.). (2010). Responding to the oppression of addiction: Canadian social work perspectives. Toronto, Canadian Scholar's Press Inc.
Kennedy, R. (1994). The State, Criminal Law, and Bacial Discrimination: A Comment. Harvard Law Review, 1255-1278.
Kinkade, T. (2015) When The University Of Vermont Banned Bottled Water, Students Drank More Unhealthy Beverages, The Huffington Post, http://www.huffingtonpost.com/entry/university-of-vermonts-removal-of-bottled-water-caused-students-to-drink-more-unhealthy-beverages_55a58255e4b04740a3de4e85
Meares, T. L. (1997). Charting race and class differences in attitudes towards drug legalization and law enforcement: Lessons for federal criminal law, Buffalo Criminal Law Review
Werb, D., Rowell, G., Guyatt, G., Kerr, T., Montaner, J., & Wood, E. (2011). Effect of drug law enforcement on drug market violence: A systematic review. International Journal of Drug Policy, 22(2), 87-94.
In 2013, the University of Vermont, in an effort to reduce the number of plastic bottles going into the waste stream, issued a campus-wide ban on bottled water with the ecologically-minded intent that people would bring their own refillable water containers. (Kingkade, 2015) Two consequences occurred as a result of the ban: 1) the number of containers discarded actually increased, and 2) there was an increase in the consumption of unhealthy sweetened drinks; which further resulted in an increased potential for unhealthy weight gain.
In economics there is an idea first associated with the English philosopher and physician, John Locke. In a letter to a Member of Parliament in 1691, Locke attempted to dissuade the government from dropping the lending rate from 6% to 4% in order to raise the value of the currency, by citing a list of arguments he called unavoidable consequences. Today we know this sentiment as The Law of Unintended Consequences: the actions of people always bring about results that were neither anticipated nor intended.
This is equally true of governments that enact social policy laws whose intent, like the ban on bottled water, is to bring about a positive social benefit, but which in fact sometimes result in conditions that are more deleterious than the original issues the legislation was meant to address. This paper will argue that legislative prohibitions on psychoactive substances not only fail to eliminate the harm that results from misuse, they actually inflict more harm on individuals and society at large.
In Principle...
- It is agreed that the array of psychoactive substances, everything from caffeine to heroin, all have inherent in their use, the risk of harming the individual, their intimate family and friends, and society at large. All of these substances, when used improperly, can cause varying degrees of biological, psychological, and societal damage, up to and including death of self and/or others.
- It is further agreed that properly graduated social policy can be brought to bear to minimize (if not eliminate) the risk of such harms.
- Finally, it is agreed that there is a moral obligation incumbent upon governments to enact social policy laws, based on sound principles, in to order to prevent or at least mitigate these harms.
Obsolete
The purpose of this paper is not to dispute that drugs are dangerous. Nor is the purpose to propose what the social policy laws ought to be. The purpose of this paper is quite simply to show why current prohibition-based legislation in Canada, the United States, and elsewhere, is obsolete.
The definitions of the adjective obsolete considered appropriate for this context are, "out of date," and "ineffective."
What is out of date and ineffective about prohibitive laws with respect to psychoactive substances is a set of moralistic notional constructs that justify them:
- criminalization - substance possession and use are due to poor moral character and the behaviours associated with them are criminal in nature;
- enforcement - illegal substances and their suppliers can be eliminated from society and the presence of these in society is merely a sign that a more potent law enforcement response (in number and kind) is needed;
- justice - punishment is an effective deterrent and a means to control the demand. If the current level of deterrence is insufficient, penalties ought to be increased;
What truly undermines the prohibition stance, however, are all the unanticipated, unintended, and/or ignored (consciously or otherwise) consequences that derive from these outdated notions.
Consequences
Stigmatization - A Result of Criminalization
Boyd, Boyd, and Kerr (2015) observed in their study that,
"...a little over a century ago, drugs like opium, heroin, and cocaine were legal and consumed in patent medicines by law-abiding citizens attending to their health needs. The properties of the drugs did not change; rather, political and social factors led to their criminalization."
This type of stigmatization is nowhere more evident than in the people we employ to enforce the laws. The study (Boyd, Boyd, & Kerr, 2015) was conducted to a) review the language and images used in reports issued by the Vancouver Police Department (VPD) between 2008 and 2013, and b) determine what can be concluded about how they perceive people. While the intent of the 2008 VPD report was to legitimately raise awareness of what they saw as a "mental health crisis" demanding much of their resources, the content of their narratives was shown to conflate mental health disorders with addiction, and by extension further associate them with poverty, homelessness, and disease. Associating mental health issues with addiction and these other societal issues shapes how people with these issues are perceived, and they become stigmatized as being a part of the lowest order of society; criminals.
Violence - A Result of Enforcement
In another study, published in the International Journal of Drug Policy, the authors (Werb, et al., 2011) found a significant correlation between police response and violence in the drug market. They state, "contrary to the conventional wisdom that increasing drug law enforcement will reduce violence, the existing scientific evidence base suggests that drug prohibition likely contributes to drug market violence and increased homicide rates...".
Another counter-intuitive example from the same study is what followed after the figurative beheading of two powerful Colombian drug cartels. What remained was a power and market vacuum that became filled by a "fractured network of smaller cocaine producing cartels that increasingly used violence to protect and increase their market share." A related consequence was found in the observation that when a cartel or supplier organization was repeatedly placed under attack, a phenomena called "target hardening" occurs. The group under attack becomes increasingly militarized over time.
This last consequence was dramatically depicted in the NBC series, The West Wing. In a storyline spanning season 2, episodes 13, entitled "Bartlet's Third State of the Union" aired February 7th, 2001, and 14, entitled "The War at Home" aired February 14th, 2001, five plainclothes DEA agents are abducted by a Colombian drug cartel while carrying their DEA identification. The fictional White House Chief of Staff, Leo McGarry, reports to President Bartlet that, "The government has no control over the region. There is no law, and they're going to shoot these guys in the head, and then have a parade."
President Bartlet, based on intelligence reports that the DEA agents will be moved along a certain route, orders a raid by a team of Special Forces to rescue the agents. When the team's two helicopters arrive at the designated spot, one of them is shot down by a shoulder-mounted surface-to-air missile, and the nine military personnel on board are killed. The President is enraged upon learning that the intelligence report was manufactured by the cartel with a guy on a shortwave radio, and that it had been a trap all along.
Imbued with a moral and political dilemma about whether the U.S. military should be deployed to the jungles of Colombia to destroy the drug cartel, the drug story line finally resolves itself in a quiet conversation between Leo McGarry (LM) and President Bartlet (PB) in the Oval Office:
LM: "I checked outside, I thought you'd be having a cigarette."
PB: "Let me tell you something, Leo. After heroin and cocaine, tobacco is next."
LM: "Great. Another criminal empire we can give birth to. There'll be speakeasies all over Chicago where you can get smuggled cartons of Marlboro Lights.
I fought a jungle war. I'm not doing it again. If I could put myself anywhere in time, it would be the Cabinet Room on August 4th, 1964 when our ships were attacked in the Tonkin Gulf.
I'd say, 'Mr. President, don't do it. You're considering authorizing a massive commitment of troops and throwing in our lot with torturers and panderers, leaders without principle and soldiers without conviction, with no clear mission and no end in sight.'
This war, is at home.
Its casualties are in our prisons not our hospitals.
The amount of money the American government is spending in Colombia is the exact same amount American consumers are spending buying drugs from Colombia.
We're funding both sides of this war and we'll never win it that way."
Leo McGarry gets it.
The story line clearly demonstrates the unintended consequence that police and military action begets ever-escalating violence and death, and also shows the terrible economic burden placed on the American people through the prosecution of an unwinnable war on drugs.
Oppression - A Result of Justice
Despite the goal of equal justice for all, governments have repeatedly enacted the laws that effectively used law enforcement and the courts to, intentionally or unintentionally, target certain elements of society deemed to be of a less desirable class.
In 1907 (Csiernik & Rowe (Ed.), 2010), for example, Deputy Minister of Labour William Lyon Mackenzie was dispatched to Vancouver to investigate unrest between white and Chinese labourers, who were considered at the time to be a lesser class of citizen. While there, Mackenzie was "shocked" to discover that white women were being lured by opium use into prostitution "servicing Chinese men." He wrote a report to parliament entitled, Report for the Need for Suppression of the Opium Traffic in Canada in 1908, clearly targeting the Chinese underclass.
In the U.S., cocaine laws have been skewed in a way that result in more convictions and incarceration for blacks than whites. Kennedy (1994), in his comment on criminal law and racial discrimination, discusses the Minnesota Supreme Court case, State v. Russel, in which a state law was struck down that was shown to "punish possession of crack cocaine more harshly than possession of powdered cocaine." "Most persons," said Kennedy, "convicted of possessing powdered cocaine were white, and most convicted of possessing crack were black." The law, in effect, had the (ostensibly) unintended effect of creating racial disparities in terms of the punishments meted out. This is echoed in a commentary by Meares (1997) in which the author states, "Harms associated with drugs and drug law enforcement disproportionately affect African Americans." He goes on to say that, "the federal sentencing policy for cocaine offenses is an example. According to federal statute, a given amount of cocaine base or "crack" cocaine triggers the same mandatory penalties as 100 times as much powder cocaine."
Conclusion
We as a society need to outgrow the ineffective and outdated moralistic notions that are currently informing the prohibitive nature of our drug laws. We need to make the effort to listen to the academics, medical community, and the addicts themselves, and learn how we can be more effective in dealing with the often devastating harms visited upon human beings through the abuse of psychoactive substances.
In the vain effort to prohibit all access to and non-medical use of psychoactive substances, many governments have chosen to institute draconian social policy laws which not only fail to achieve their desired outcomes, but actually bring down on individuals and society at large, often brutal unanticipated and unintended consequences.
The very act of criminalization itself has been shown to stigmatize an already compromised human being at a time when they are most vulnerable. The inherent limits of law enforcement to disrupt the flow of illegal substances needs to be recognized; even after decades of prohibition, the cartels still exist, the drugs are making their way across heavily defended boarders, and local drug dealers still find a ready market for a product with a profit margin of 6000%. Furthermore, intense efforts by law enforcement once thought to be sufficient to accomplish the task of interdicting, have actually been found to exacerbate the prevalence of violence by forcing the supply chain to protect its market in an increasingly militaristic fashion.
Finally, the overloaded justice system, intended to protect people from unfair treatment under the law, has been warped into a tool of state imposed oppression and forced to deliver ever increasing penalties on the poorest and most disadvantaged segments of society.
Prohibition as a concept is not only obsolete, it is virtually bereft of utilitarian virtue.
"The road to hell is paved with good intentions."
References
Boyd, J., Boyd, S., & Kerr, T. (2015). Visual and narrative representations of mental health and addiction by law enforcement. International Journal of Drug Policy.
Csiernik, R. (2011). Substance Use and Misuse: Everything Matters, Toronto, Canadian Scholar's Press Inc.
Csiernik, R., & Rowe, W. S. (Eds.). (2010). Responding to the oppression of addiction: Canadian social work perspectives. Toronto, Canadian Scholar's Press Inc.
Kennedy, R. (1994). The State, Criminal Law, and Bacial Discrimination: A Comment. Harvard Law Review, 1255-1278.
Kinkade, T. (2015) When The University Of Vermont Banned Bottled Water, Students Drank More Unhealthy Beverages, The Huffington Post, http://www.huffingtonpost.com/entry/university-of-vermonts-removal-of-bottled-water-caused-students-to-drink-more-unhealthy-beverages_55a58255e4b04740a3de4e85
Meares, T. L. (1997). Charting race and class differences in attitudes towards drug legalization and law enforcement: Lessons for federal criminal law, Buffalo Criminal Law Review
Werb, D., Rowell, G., Guyatt, G., Kerr, T., Montaner, J., & Wood, E. (2011). Effect of drug law enforcement on drug market violence: A systematic review. International Journal of Drug Policy, 22(2), 87-94.
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