LEGALISATION OR HARM REDUCTION:

THE DEBATE CONTINUES

Are you a libertarian legaliser or a progressive prohibitionist?
Ethan Nadelmann examines the relationship between harm reduction and legalisation, and asks: how far forward can compromise take us?

As somebody who has been involved in articulating, explaining and defending the notion of legalisation 1 have become Avery concerned about the growing attempts to separate it from debates over harm reduction and harm minimisation. There has recently been increasing attempts to define harm reduction or harm minimisation and the debate. My arguments will focus mainly upon the United States of Arnerica for several reasons: firstl this is where the debate is most vociferous; secondly, the US Government has been the dominant force in drug policy throughout the world over the course of this century. It has been a tremendous force for evil. It pains me tremendously to say that, because 1 am an American nationalist and I'm proud of my country. It is difficult to be marginalised from one's own society for asserting views on drug policy that seem sensible and seem decent, but this position locates you far beyond the pale of what most Americans say and believe. Much of our hope for creating institutional change in countries all around the world depends upon our capacity to generate intellectual and political turmoil that will lead to this change. Unless this happens in the USA first, our country will remain an obstacle to change elsewhere.

When I listen to Canadians, Australians and others, get a sense that many positive things are happening, but I also sense that people are hunkered down under the American pressure that is weighing over those countries. It's painful to hear Australians say that they can implement more sensible policy initiatives because they are so far from the USA. Therefore the political debate has to go on. We have to deal with the large-scale prejudices of the American public, and so in this piece I'm going to talk principally about the situation in the USA.

The legalisation idea has been around for quite some time. It emerged powerfully in 1988and 1989 for a variety of reasons. A number of academics, myself included, wrote some articles that attracted a great deal of attention. Kurt Schtnoke, a very brave mayor of Baltimore and a former prosecutor, came out and made some hold speeches in support of legalisation and, when challenged, did not step back from them. Professor Arnold Trebach and Kevin Zeese established the Drug Policy Foundation, and this organisation has grown and become a force for progressive change in the area of drug policy.

It is important to remember that the debate over legalisation was stimulated in large part by the media. Politicians and academics provided fuel, but they depended upon the media to air their arguments, and unfortunately we could only shRpe the debate to a very small extent. It is ironic that the drug that most stimulated this debate was crack, the drug that caused most difficulty for many advocates of legalisation, but there was a public and political fear about that drug that created the media attention.

Today, the media attention over this issue has faded. There are increasing numbers of books coming out, increasing political action by the Drug Policy Foundation and an increasing struggle over what the notion of 'legalisation' means and what is the relationship of the concept to harm minimisation. 1 want to try to distinguish here between the various dimensions of these, concepts on the political, ethical, rhetorical, intellectual (in terms of policy analysis) levels, because debates and discussions are being conducted on this issue on each of those levels.

The notion of legalisation has many meanings to many people. For some, it is a simple expression - take the crime out of the drug business, take the money out of the drug business. Both of these things could be accomplished by legislative change. It has also been a rallying cry, in the same way that the call to repeal prohibition was 60 years ago. It has brought together peoplc from across the political spectrum: right-wing libertarians such as Milton Freedman, right wing non-libertarians such as William Buckley, Conservative, establishment types such as George Schultz, the former Secretary of State, with left-wingers or liberal-left, such as the head of the ACLU, Ira Glasser, liberal black mayors such as Kurt Schmoke, and a whole cross-section of people from various areas around the country - police, prosecutors, people working in drug treatment, educators, lawyers, any field you care to name. This was a coalition that coalesced around the notion that there was something fundamentally wrong with the drug prohibition system in the USA, and that policy just had to change. just as those who advocated the repeal of prohibition differed dramatically over what they believed should come in its stead, and over what bothered them most about the current system of prohibition, so it is with those who favour the repeal of drug prohibition today. Views about what forms any change should take also mirror the debates over alcohol prohibition. Shall we legalise 2 per cent beer? Three per cent beer? Wine and hard liquor? Who should regulate it? The State? Local government? Federal Government? How high should it be taxed? Shall we allow the return of saloons? It is our hope to stimulate some sort of serious debate over these sorts of issues. There was something else, related to the way that we analyse drug policy, and what our objectives are, that emerged at this time and and that remains essential to our project - the notion that drug legalisation is about asserting a cost-benefit analysis, a recognition that we have to measure the costs and benefits of current drug policies alongside those of past drug policies and legalisation or harm reduction policies in order to come to some judgement about which policy comes to the best mix of cost and benefit. Although this equation appears simple, many of the costs and benefits of alternative regimes are impossible to compare or predict with any confidence, and the ethical judgements underlying the cost-benefit analysis are inevitably prominent. There is no way around this, but nevertheless, this should not dissuade us from doing analyses that focus on various policies themselves and on their consequences.

One of the assumptions being made is that when you do such analysis, you reach the conclusion that the ideal drug policy is one that looks more like the legalisation model than one that looks like our current prohibition model. Another assumption for most is that the ideal policy is not the libertarian, the free market model, although that model does raise some very interesting questions, but something in between what the progressive Australians, Dutch, Swiss and English are currently doing and the Friedmanesque model. Somewhere between those poles lies the ideal drug policy.

Beneath those assumptions lies the question: 'What are the objectives of drug policy?' In the USA, the dominant objective is believed to be the attempt to create a drugfree society. This is a ludicrous suggestion and an ahistorical fallacy. We know that there have been very few societies in human history that were really drug free. Andrew Weil has suggested one possibility as the 1 Eskimos, due to their inability to grow anything, but maybe even they got high smoking whale fat. Nevertheless, that notion is predominant in American society.

Of course, few people make the case that society should be really drug free, although there are some prohibitionists who would like to eliminate tobacco and alcohol. There are also some religious sects who would like to eliminate other drugs, medications such as propain, but essentially, the concept refers to the desire to eliminate the use of any drugs other than those that are strictly legal or prescribed by medical authorities. It seems to me that the desire to create a drug-free society is not a good objective of drug policy. It is more like a crusade than an objective, and those who fight a crusade don't have cost-benefit analyses because any cost is worth paying and any burden is worth bearing in order to accomplish your objectives. That we have to have a drug-free society is a moral notion.

To my mind, there are two sensible objectives that drug policy must pursue. The first is to minimise the extent of drug abuse in society, and this includes alcohol and tobacco and other drugs of abuse. I'm talking specifically here about abuse and not about drug use, because drug use, it seems to me, is no problem whatsoever, as long as it's not associated with some form of drug-related harm involving either the individual or others. The second objective is to minimise the negative consequences of drug control policies. When I'm asked, 'What does harm minimisation mean to you?', the answer, on one level at least, is simple. First, minimise the negative consequences of drug use. Secondly, minimise the negative consequences of drug control policy. We have to pursue those two objectives, and to balance them when they are in contradiction of each other, but these have to be our objectives.

We should also consider the rhetorical aspects of this debate. As soon as the debate emerged, legalisers were put on the defensive by questions such as 'What is your model?', 'What is your solution?', 'How do you plan to do this?', 'What drugs would you choose?', 'Who would do it?' etc. These are very good questions and questions that many of us are currently seeking to address, but there was also a rhetorical dimension.
Today when we talk to the media, we do not want to talk about drug legalisation, but about drug prohibition. This has to be our focus, our target, because as soon as you begin to talk about drug prohibition, you begin to suggest alternatives. Prohibition is the rhetorical issue. If the Time magazine cover had read 'Has drug prohibition failed?' the debate would have jumped forward in a productive way, to raise notions of harm reduction, harm minimisation and related concepts. To the extent that any rhetorical battle is continuing now, that is what it is about.

Let me summarise the basic arguments of the legalisers. The three basic arguments run like this: first, drug prohibition doesn't work well. some people claim that prohibition doesn't work - 1 believe that it does work, because it reduces the availability of some drugs, it raises the price of some drugs and it deters some people from using drugs by the criminal sanction, but the point is, it doesn't work well. Secondly, many drug policies are counterproductive and in the USA they are bec~)ming increasingly counterproductive. Thirdly, there are a whole range of policy alternatives to drug prohibition that may lead to a better mix of costs and benefits than we have ever seen before.

If we look at the nature of US drug prohibition policies, our international enforcement efforts, interdiction efforts, the pursuit of drug traffickers at every level and our drug testing programmes, abundant evidence shows that none of these is particularly successful. The notion that we can prevent producer countries from producing drugs to ship to the USA and elsewhere is absurd. There is no evidence whatsoever to support the fact that it can be done. Drugs such as marijuana, opium and coca can be grown throughout the world. The 'push down-pop up' effect demonstrates the tendency for production centres to shift when repression in any area becomes too successful. So as poppy eradication becomes successful in Mexico, the output of another country such as Afghanistan increases to meet the demand. We've pushed down in so many places, that now it's popped up everywhere. At present, only 1 percent of the usable land in South America is actually used to grow coca. There are millions of peasants, unemployed or underemployed and living on a few hundred dollars, at most, all around the world. The notion that we can keep them pursuing a better standard of living through crop substitution or law enforcement is laughable.

Again, look at the negative consequences of these policies - when the USA goes in and takes away the livelihoods of whole communities, it i's pushing them into the hands of the Shining Path, who are the closest thing to the Khymer Rouge the world has produced so far. Look at the Columbian drug barons who have been responsible for the murders of presidential candidates, most of the Supreme Court, the Attorney General, the Justice Minister, the editor of a major newspaper. All wiped out. There has never, even in Columbia's worst period, been this level of violence directed at the legitimate authority of the State. These are all negative consequences of drug prohibition and any harm-reduction strategy must aim to reduce these negative consequences of the drug trade on the people of Latin America. Crop substitution programmes may be very nice as economic aid to developing countries, but they are useless as a drug supply reduction strategy.

Consider our efforts at interdiction. We've set up barriers, AWAC radar planes circling, customs, coastguards. A big satellite system that once used to overlook the North Pole, searching for Soviet missiles, has been moved south to look for drug-carrying planes coming in from South America, all such planes being well marked, 'This plane is carrying drugs, please shoot me down'. The notion that the 6-10 tonnes of heroin or the 100-200 tonnes of cocaine that enter the USA each~ year could be kept out is ludicrous. In the context of the total quantity of import trade, it makes searching for a needle in a haystack look like child's play. Nevertheless, every year, billions of pounds are thrown in that direction and the USA encourages others to follow.

This strategy has had some success against marijuana, because marijuana is big and bulky, so smugglers are much more vulnerable. However, it has led to a shift into the white powder drugs. This is reminiscent of Al Capone, who found it easier and more profitable to trade in bathtub gin than beer, or the situation in parts of Asia, when they eliminated the opium control monopolies in order to try to reduce the number of old people dependent on opium. What came instead was heroin; with onetenth of the bulk, it is far easier to smuggle, easier and more discrete to consume, which led to tremendous increases in the numbers of young people using the drug. These switches, from opium to heroin in Asia, or from marijuana to cocaine in Jamaica, are well documented. In many American communities right now, it is far easier to purchase crack than it is to purchase marijuana. This cannot be a good policy. The consequences of our interdiction policy were not thought out beforehand.

Let us examine the way the Government has gone after big drug traffickers and sequestered their assets. Has it made a difference? No, because whenever we arrest Mr Big, the No. I drug kingpin, then No. 2 steps in to take his place. Where did the police get the information to arrest No. I? Why, from No. 2, who wanted control of the drug empire. We now have billions of dollars of property being forfeited, and it has reached the point that some police forces are focusing on drug dealers to get their money. Why should they go after a rapist, a mugger or a murderer who has no assets to seize! Dealers have property - Ferrari's and Lamborgini's we can use in our operations. Cash to increase our budgets. Today, people are arrested with a few marijuana plants on their property, with no evidence of involvement in sale, and are having their property confiscated. When the USA was created just over 200 years ago, such civil forfeiture was rejected out of our opposition to the excesses of King George. These precedents, established in the drug war, are eventually used in other areas.

There has also been an increaseJ focus on low level traffickers - thousands were arrested over the last few years in the USA. Does it do any good? Perhaps it may in tiny communities, but in cities of any size, the old 'push down-pop up' effect comes into play. Push down on one street, it pops up in another. Once again, existing drug policy doesn't work. It doesn't keep people from getting the drugs that they want. Anybody can get any drug if they have the money. So what are we left with?

Drug testing - drug testing is being systematically promoted to other countries. Today, tens of millions of Americans are having their urine tested. In the future it may be their hair, and it is my belief that this policy has worked. Drug testing has probably reduced illegal drug consumption among those people who work in Government jobs and in certain industries. But once again, we must consider the consequences. In the future it will be possible to set Lip a drug-testing system with far more invasive social control implications. In 10 or 15 years, it will be possible to set up a nationally based computer system, with the names, social security number, health record, criminal record, and everybody in the country would have outlets, at home, at work, at college. Every morning, by law, you would have to put your finger, or a urine sample, into the machine. Should you fail the test, then you could be given a shock. If you fail on the second day, you would get a bigger shock, and so on. Such a system would be remarkably effective and according to some definitions, could be regarded as the ultimate harm-reduction strategy, due to its success in wiping out illegal drug use.

However, to evaluate a drug control strategy, we should not simply measure the reduction in the number of illegal drugs consumed, but we should also count the reduction in our individual freedom, the freedom from the reach of the state into people's personal lives. 1 oppose large-scale drug testing, principally on ethical grounds. On narrow, policy-analytical grounds it works well, but once we bring our ethical judgement to bear, it is a terrible policy. It may be the thin end of the wedge, the start of a slippery slope. We begin with illicit drugs, and soon move to tobacco. This process has already begun in the USA. We now have home testing and many companies require workers not to smoke cigarettes. Eventually, we move to alcohol, to fried foods, or whatever else may be thought to be detrimental to our health.

For many, a more important part of the argument is the costs of drug prohibition, which are extraordinary. The USA now has over one million people behind bars and over three million people in other forms of criminal justice supervision. This is the highest proportion of the US population ever incarcerated in human history. It is the highest proportion of any liberal democratic population ever incarcerated in human history, and is now the highest proportion of any country in the world, now that our closest competitors, the Soviet gulags, are emptying out, and the South Africans are no longer imprisoning at the same rate. The figure has doubled in the last 10 years and tripled in the last 15 years. Drug law violations account for over 50 per cent of the people in federal prisons, a figure that excludes other drug-related offences.

Because of the unequal racial distribution of those incarcerated, drug policy has been viewed as a racist policy. It may not be directly or explicitly racist, but there are certainly racist assumptions, a racist callousness, in the way that blacks and Latino's are swept up. However, it is also important to understand that some of the most vigorous support for our existing policies has come from Afro-American and Latino leaders. There are high levels of support for draconian drug policy from within the community, communities that are obsessed with notions of genocide and conspiracy and are now detached, along with the rest of the population, from analysing policies in terms of costs and benefits. These things have to change.

Many of the other costs are widely known. Take the problem of adulterated drugs. We saw these costs during prohibition, with bathtub gin making drinkers blind. Similar negative consequences exist today.

It strikes me that the objective of almost any harmminimisation or any harm-reduction policy must he to reduce drug use and to use regulatory measures as much as necessary, but to stop short of the prohibitions, particularly the prohibition of the individual freedom to make that choice, even if it is a stupid one.

The other group, 1 like to call the 'progressive prohibitionists': well meaning, thoughtful, intelligent people who hang on to drug prohibition but for reasons that are different from the reactionaries. People who are morally committed to a repressive policy. Often, what drives policies in the USA is a highly reactionary ideology in which drugs just happens to be the foil for pursuing the policy. 1 am not attempting to make a political statement here; this is an objective analysis of what is going on. Progressive prohibitionists, a new book called In Search of Rational Drug Policy by Zimmer and Hawkins makes the same point. That is where the policy debate is right now, and that is why the rhetorical level is so important. Because there is this middle ground and, within that ground, people agree on notions of harm minimisation and harm reduction. In this middle ground, we are allies, against the overkill of drug prohibition policies, against over- incarceration; we are sometimes allies on the decriminalisation of personal use, we are allies in terms of promoting more drug prevention measures, promoting non-drug-specific prevention measures such as head start programmes, prenatal and postnatal care programmes. So where is the split?

The split, I believe, is over two issues, and the first, once again, is over individual freedom. How much does that count? As the German constitution puts it, how much does the individual's right to develop his own personality count? Individual freedom, the right to privacy, even the right to use drugs - how much weight needs to he given to that in any cost-benefit analysis? This is an explicitly value-based judgement, which is why, in the final analysis, what the whole debate is really about is a moral and ethical vision of society. The challenge for Lis, as progressive legalisers is how to combine notions of public health with notions of individual liberty. In the American context we can go a long way from drug prohibition and still not have a split between individual liberty and public health but at some point they do diverge. Progressive prohibitionists aren't quite so committed to notions of individual liberty, or if they are, they are afraid to articulate them. They may find other ways to assert similar values, but don't wish to target that one, for fear of being tagged 'civil libertarian', which carries a certain stigma in the American context. This is one rhetorical debate, a I~attle for the soul of one's country, that we need to 'continue to struggle over. To my mind, these are fundamental ethical notions that are as much about what a society should be about as the issues of whether we treat religious minorities, racial minorities, sexual minorities and other groups as equals as well.

On that level, there is another ethical component that I too am afraid to articulate in an American context, and that is the issue of the rights of drug users. In the USA, our discourse is so tied to constitutional rights that, if we can't identify something as a constitutional right, then we just ignore it. The debate over the human rights of drug users which are being aired in various forums in Europe and Australia would be a bizarre notion to an American. We think of Amnesty International and torture in foreign countries. We don't think of human rights in an American context and we need to debate it at the rhetorical and the political levels. Progressive prohibitionists who share some of our views don't want to articulate this one.

The second debatel the second source of disagreement between the two progressive camps, is on the consequences of far-reaching and radical change. This notion is rarely expressed. There is tremendous value in trying to think about the consequences of a truly free market in psychoactive substances. To ask the questions about why we need a drug prohibition system in the first place, we need to remind ourselves why we need the system. We all take it for granted, we've grown up with it, but we've stopped asking why we have the system. There is tremendous intellectual and policy value in thinking these questions through, and there is one thing that we know for sure and that is even a truly free market in psychoactive substances would not lead to a tenfold increase in levels of drug abuse. All developed societies, and many less developed societies, have a fundamental resilience in the face of psychoactive drug use. We already live in a society of widespread psychoactive drug availability, where people who want to abuse themselves with psychoactive drugs can do so with virtually no trouble whatsoever. That's just one reason to understand that our fears about the potential consequences of reform if the floodgates were opened, which is not what 1 personally propose, are unfounded. It is this fundamental fear that progressive prohibitionists share with their more reactionary colleagues. They do fear the opening of the floodgates. Ask why, and here the debate comes down to visceral reactions. In my gut, and those of my allies, there is a sense of fundamental resilience, even in the devastated inner cities, and in the guts of the prohibitionists there is a fundamental sense that we need these drug laws. But to my mind, the vast majority of citizens get no benefit from drug laws because the majority don't need laws to keep from becoming drug abusers or addicts. I take that as a given.

I accept the criticisms that the debate over legalisation has harmed some aspects of the debate over harm reduction, such as the introduction of needle exchange. That is uncontrollable, the media has done what it will do, regardless of our arguments. Nevertheless, it is important that we air these arguments among ourselves. Unless we do so, we run the risk of abdicating responsibility, of hiding from the tough decisions because they are presently unpopular. As many people here today will recognise, we have come a long way in the last 5 years, but in theUSA at least, there is still a long way to go.