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Articles - Law and treaties
Written by Francis Caballero   

 

LIBERALIZE RATHER THAN PUNISH

by Francis Caballero

Not only dangerous for public order, the policy of repression also threatens personal freedom.

In June 1961, Harry Anslinger, the "incorruptible" head of the Narcotics Bureau and chief irhrestigator of the international ban on narco-tics said in an American magazine: "We are winning the war on drugs".

Thirty-two years later, one remains staggered by the number of bellicose declarations which follow one after the other at the highest echelons, with the same fecklessness. Nixon and Pompidou in the 70's, Reagan, Bush and Mitterrand in the 80's, Quiles and Pasqua today ... have all declared out and out war on drugs: a strengthening of repressive laws, an increase in the means given to the police, a paramilitary organizational structure... all taking aim at one and the same target: users, dealers and drug traffickers.

Unfortunately, more than thirty years of the international crusade against drugs and twenty years of applying the law of 1970 have hardly shown convincing results. Worse still: the perverse effects of prohibition repres-sion have become very worrying, both from the point of view of public order and personal freedom and that of public health.

At the public order level, one must note that the combination prohibition repression promotes major as well as petty crime.

As far as major crime is concerned, prohibition is the objective ally of drug trafficking. Indeed, the product's rarity value ensures drug traffickers with an annual income of at least $ 150 billion - a real gold mine for organized crime, the Mafia and the drug cartels. As Henri de Choiseul-Praslin demonstrated, the drug market has been boosted by repression which aids and abets the most organized and most dangerous individuals.

For petty crime, prohibition is the driving force behind many crimes and offences. The price of the goods - FF 1,000/gram for heroin, i.e. ten times more expensive than gold - incites the drug addict to carry out a very high number of crimes against people and property: bag snatching, theft of car radios, burglaries, break-ins at pharmacies, prostitution, etc. without forgetting to mention the "deal" which enables the addict to get his dose. According to the Trautman report, the sums of money stolen from the community would amount to FF 30 to 50 million daily.

FRANCE - THE SEVEREST IN EUROPE

The policy of repression is not only dangerous for pu-blic order, it also threatens personal freedom. According to the police, the system is unable to catch more than 10 % of the narcotics in circulation, so public order "works itself up" and introduces legal measures which are increasingly severe. According to a seminar which was held in 1992 on the subject of "Drugs and Human Rights", the increase in repression is generalized, but France is the most repressive in Europe. The number of people questioned rose from 3,000 in 1970 to S0,000 in 1992. Today, "drug cases" fill a third of French prisons.

For some, this is not enough. The law of 1970 was reinforced in 1986, 1987, 1989, 1990, 1991, 1992... The repressive machinery has quite evidently spun out of control. It is no holds barred in the fight against the drug traffickers, the "grave diggers of the young". The Medellin syndrome has gripped the legislator.

The problem is that the law applies indiscriminately to cannabis and heroin, to the user-cum-drug pusher and the international drug trafficker. This results in absurd situations, such as the Valenciennes case where article L. 627 of the Code on Public Health was applied to two young students prosecuted for importing 20 grams of resin. The result is that, on the pretext of protecting today's youth, one in fact jeopardizes its future.

As for the one-year mandatory prison sentence provided for in article L. 628 of the Code on Public Health given to all adults who use a substance of their choice in their private home to procure sensations, this is contrary to Article 4 of the Declaration on Human Rights which states: "Freedom consists in heing able to perform all acts which do not harm others" - an oft-forgotten cardinal principle.

Regardless of these infringements of personal liberties, prohibition and repression have turned out to be dan-georous fov public health. Two significant examples readily demonstrate this: overdoses and AIDS.

With respect to overdoses, it is well known that clandestine activity increases the dangerous nature of the substances. Product quality diminishes on its way th-rough the distribution chain (importer, wholesaler, dealer,...) due to dilution or adulteration, which are the cause of most accidental deaths of heroin addicts. It is to be observed that the number of deaths increa-sed from 1 in 1979 to approximately 500 in 1992. This must most certainly be considered as a major medical failure of the law of 1970.

The situation is even more serious for AIDS. Marginalization of drug addicts has resulted in disastrous practices, such as sharing needles. This in turn has led to propagation of contagious diseases, such as hepatitis and AIDS - propagation in which part of the medical community and the political classes have unfortuna-tely played a fairly significant role.

According to a recent DEA thesis, defended at the University of Paris X, on the regulation of the sale of syringes, it would appear that the two-year delay in implementing the measure of legalization of the sale of syringes, i.e. between April 1985 and May 1987, was ainly politically motivated. This delay would apparently he responsible for the HIV virus being transmitted to more than 1,250 addicts - a hecatomb which is not spoken of often enough

All these perverse effects, together with others (finan cing of terrorism, money-launclering, corruption, re pression cost,...) have led more and more people tc condemn prohibition and to call for a different kind o: crime pc)licy. It is in this context that the "Mouvemen de legalisation controlee - MLC" (Movement for Con trollecl Legalization - MCL) has been set up, bringinE together lawyers, doctors, GP's and ordinary citizens who all wish to see the law changed. The Frencl MCL is moreover just a branch of the internaticwal an tiprohihition movement. s ~.

Without claiming to represent such a cogLplex move ment, one may, however, suggest some giuiding prin ciples for a systeln of controlled legalization Anglo-Saxon antiprohibitionists use the triptych: lega-lize, control and dissuade. One could also suggest re-placing the war on drugs with a public fight againsl drug abuse - a formula which tolerates drug use anc only fights abuse. For legalization does not implf laxity. It recognizes the potential dangerous nature ol the substances involved and envisages implementing certain public health and social constraints to contro] access to them. These would consist of differentiatec constraints since it is pointless to speak loosely ol drugs. Each substance has its own specific properties.

This calls for definition of the areas of control, that ic to say which substances could be legalized. Logically. the field of application ought to be limited to drugs fol which prokibition failed, those substances for which demand is a fact of life: cannabis (a market worth $ 5> hillion), cocaine ($ 27 billion) and opiates ($ 71 bil-lion). There is no reason to legalize phenocyclidene ol LSD for which prohibition works. Even for cannabis. One shall have to show caution by providing for a 5-year test period (as in the case of abortion) beforc continuing with the legalization experiment.

As far as the use of drugs 1S concerned, the principle would be to tolerate it as long as it does not harm so-ciety or third parties. It ought to remain discrete and not degenerate into abuse. It would, therefore, be ad-missible in private premises but would be banned in public premises. It is not worth reproducing the same errors committed by Spain's attempts at "depenaliza-tion", and give rise to provocation and conflicts with the population. Moreover, the use of drugs while dri-ving would be sanctioned on the grounds that this is dangerous for public order and safety and also becau-se driving under the influence of drugs would be re-garded in the same light as driving under the influence of aWohol. Lastly, the abusive use of drugs, dange-rousu for other~, might form the object of compulsory medical treatment. sThe general idea would be to replace an ethics of ab sfinence, certainly ideal but unrealistic, with a more pragmatic ethics of moderation. However, this calls for a certain level of maturity. Hence the ban on selling drugs to minors which is vital in order to protect the young. This measure, much contested by some, al-ready applies to alcohol in the United States and does not appear to cause any special problems. It can be adjusted and the notion of qualified minor could be established: for example, sixteen years for cannabis.

As far as the drug trade is concerned, controlled legali-zation attempts to be a model for exemplary distribu-tion in which all forms of incitement to use drugs are prohibited. This "passive" trade, which has been strip-ped of the attributes of ordinary trade (right to trade name, shop signs, advertising, sales promotion,...) would strive to ensure consumer protection. Hence the proposal, also much debated, to call on the State to take charge of managing the distribution monopolies for soft drugs or special dispensaries for hard drugs.

Such monopolies already existed in our former colonies for cannabis and opium but their mission was mainly economic and fiscal. In contrast, tomorrow's monopolies would have a public health and social focus. Hence, the introduction of various countermeasu-res and controls to guarantee effective prevention: ad-vice to drug users on the use of the products, informa-tion on the dangers, assistance and medical follow-up of hardened drug addicts, on-going detoxification pro-grammes, programmes on risk reduction, tariff policy to orientate supply and demand, taxation of legalized drugs for the benefit of Social Security to compensate for the social costs, etc.

All these mechanisms and many others deserve di-scussion and in-depth reflection but the debate has now been launched. Legalization does not mean capi-tulation. It is quite possible to fight abuse wo,f legalized drugs. The sale of tobacco and alcohol dcjes not-pre-vent the fight against smoking and alcoholism. Some-times this meets with success. This is svhy the impossi-ble war on the tentacular octopus odght to be repla-ced with another kind of battle, a more peaceful strug-gle: controlled legalization, complemented by public health and social countermeasures. This is a reasona-ble idea which has already gained ground and will continue to do so.

MLC MANIFESTO

SINCE the extent and the increase of illicit drug trafficking have disastrous economic, social, judicial and public health consequences;

OBSERVING,from an economic point of view that there are links between drug trafficking and other organized criminal activities, such as arms trafficking and terrorism, threatening the stability, safety and sovereignty of the States; that they are favoured by the prohibition of drugs that finances cartels and mafias, promotes corruption and contaminates the banking system; that drug money laundering perverts the world's economy, That the cost of this prohibition increases constantly; that police agents and customs officers are unable to intercept more than 10 % of the total of drugs circulating;

OBSERVING, from a social point of view, that drug prohibition induces an increase in criminality and delinquency, caused by the artificial price increase of some drugs, that can lead to aggressions against individuals and goods, to prostitution and reselling by the users, that the number of users and drug addicts has been steadily increasing over the years; that the population segments that are the most severely hit by prohibition are the least favoured and are often the victims of discriminatin, or even racism, when it comes to applying the law;

OBSERVING, from a judicial point of view, that drug prohibition generates a constant repression against citizens, in discordance with civil and human rights; that especially the imprisonment of drug users is in contradiction with the article 4 of the Human Rights Declaration that proclaims that: "Freedom; consists in the right of doing everything that doesn't harm others"; that drug prohibition creates a right of exception that threatens individual freedom; that drug offences generate an overcrowding of prisons all over the world; that the inadequacy of the Law to treat the social problem inspires a lack of confidence of citizens in the law and its application;

OBSERVING, from a medical point of view, that drug prohibition generates very severe consequences for both users and Public Health; that it represents the main obstacle to an efficient information, prevention and treatment policy; that because the unreliabl quality of the products is one of the main causes of death hy overdose; that the prohibition of syringe sale, and the permanent difficulty of obtaining them is responsible for a significant number of victims; that consequently, numerous drug addicts are seropositive; that their marginalization isolates them from treatment structures and favours disastrous xanitary practice, spreading diseases like hepatitis and AIDS;

the goal of the association is to promote a policy of controlled legalization as an alternative to prohibition and drug repression, by trying to reconcile the respect of individual freedom with the safety of the general public. The association would also like to develop information, research and debate on anti-drug abuse policies, together with the antiprohibitionist organizations in France and abroad and take action for:

1. the modification of the treaties, laws, regulations and guidelines on the prohibition of drug production, trade, and use.

2. the abrogation of the law of December 31, 1970 and its replacement with a regulation taking into account the specification and the danger level of each substance.

3. the recognition of the users rights, particularly the right to be treated without restrictions or constraints.

Finally, its vocation is to organize the defence of the persons prosecuted for offences against drug legislation, and to bring before civil, penal, and administrative authorities, all actions related to the interest that it has the mission to defend. Founded in Paris on 30 January1993, by Francis Caballero, the Movement for Controlled Legalization (MLC in f rench) numbers- about 100 members. The MLC acts in the field mainly by actions in court. MLC lawyers successfully defend users and bring to the attention of public opinion the failure of prohibition, its contradictions and perverse effects.

 

Our valuable member Francis Caballero has been with us since Saturday, 18 December 2010.