Читать книгу The War on Drugs - Paula Mallea - Страница 7

A Declaration of War Leads to a Shambles

The United States, Originator of the War on Drugs

In the 1960s, young people began to use marijuana openly while simultaneously and noisily indulging in free love, flower power, and opposition to the Vietnam War. “Sex, drugs, and rock ’n’ roll” was the mantra. In a moralistic fervour, the United States government launched an all-out offensive upon marijuana users, sending thousands to prison. In 1972, President Richard Nixon first declared a War on Drugs. Legislation produced harsher penalties and expanded the number of offences that could be prosecuted. Although President Carter later campaigned for the decriminalization of marijuana, this idea soon disappeared.

In 1986, under Ronald Reagan, the United States re-dedicated itself to the War on Drugs and passed the Anti-Drug Abuse Act. The provenance of this law is especially interesting. On June 19, 1986, Len Bias, a young basketball star and acknowledged successor to Michael Jordan, died of what was described as a cocaine overdose. (It was, in fact, a combination of cocaine and alcohol.) The country was so shaken at this loss of a promising young athlete that politicians went to work to draft a new criminal law. The Anti-Drug Abuse Act introduced mandatory minimum sentences that were draconian, especially for the new drug on the market, crack cocaine.

Eric Sterling, who was legal counsel to the U.S. House Committee at the time, helped create the law. He now admits that the bill was completed in haste in a couple of months and was “terribly drafted.”[1] The terms were “purely arbitrary,” there was no science involved, and the law produced a sudden and shocking increase in the federal prison population from thirty-six thousand in 1986 to 219,000 today. About half of these people are imprisoned for drug offences.

Mr. Sterling now says this was the worst thing he had ever been involved in as a lawyer. If Len Bias had not died, everything would have been “profoundly different.” Thus, a law that destroyed the lives of millions of Americans was written “on the back of a napkin.” It is only today that politicians are beginning to correct some of those errors made more than twenty-five years ago.

The same Anti-Drug Abuse Act required the U.S. president to evaluate the performance of drug-producing and drug-transit countries every year and certify those that were co-operating with the United States. Decertification meant that the United States could withdraw foreign aid, impose trade sanctions, and oppose international loans. Latin American drug-producing countries (like Colombia) or transit countries (like Mexico) are consequently obliged to demonstrate their zeal in prosecuting the drug war. This has increased the violence and number of deaths in both countries.

In an ever-escalating determination to prosecute illegal drugs, President H.W. Bush in 1990 increased the budget for the War on Drugs by 50 percent. The extraordinary expenditures continued through the presidency of Bill Clinton, who nevertheless was the first (but not the last) American president to admit that he had tried marijuana.

Some American politicians did question the efficacy of the War on Drugs through those years. A 1995 Sentencing Commission noted the disparity in sentencing between powder cocaine (used mainly by middle-class people) and crack cocaine (used mainly by people with lower incomes). Crack cocaine offences were, by law, punished by one hundred times as much prison time as powder cocaine.[2] The Sentencing Commission made recommendations to rectify this state of affairs and related issues, but its recommendations were rejected by the United States Congress. The Obama administration later reduced the disparity of 100:1 to 18:1 with the Fair Sentencing Act of 2010. Clearly, to be equitable, the ratio should be 1:1, a change which now is also being supported by the Obama administration.[3]

Currently, both medical marijuana and legal marijuana regimes are being successfully organized in some American states. Twenty-one states have already legalized the use of marijuana for medical purposes, while two states have legalized the recreational use of marijuana as well. The federal Attorney General has recently issued instructions not to prosecute every single case of marijuana possession. This is an important departure for an office that has always insisted upon its right to prosecute drug offences over state preferences.

Further, the Obama administration is implementing other changes, including releasing some prisoners from their long sentences.[4] The administration is asking defence lawyers to help identify people who are serving long sentences for crack offences so that Obama can use his executive authority (avoiding Congress) to have them released. Prison officials are also spreading the word. At the end of 2011, about thirty thousand inmates were serving sentences for crack offences (15 percent of all inmates). The president kick-started this process by pardoning eight inmates in December 2013. Unfortunately, as of February 2014, there were 3,500 petitions on the administration’s desk and no adequate system for processing them. Since Obama is the “stingiest” president in history when it comes to granting pardons, inmates still serving sentences under the old regime do not hold out much hope for an early reprieve.[5]

Canada: A Reliable Ally

Canada, too, laid down long sentences and harsh punishment for drug users beginning in the 1960s. A seven-year minimum sentence for importing drugs was not removed until it was struck down by the Supreme Court of Canada in the 1980s. Many young people went to prison for simple possession of soft drugs or for trafficking, which includes sharing (that is, passing a joint from one person to the next). A single marijuana seed in a shirt pocket could result in an arrest.

Rosie Rowbotham famously spent decades in the Canadian penitentiary system for his participation in the drug trade.[6] In the 1970s, as a young man, he set up shop selling marijuana in Rochdale College in Toronto, where the lineup of buyers stretched down the corridor. Later, he imported tons of hashish, receiving sentences amounting to decades of prison time. He served the longest sentence in Canadian history for marijuana offences, and grew old in prison.

Yet as early as 1972 — at the same time the United States was declaring its War on Drugs — Canada’s Le Dain Commission was recommending lifting the prohibition on marijuana possession. Gerald Le Dain of Osgoode Hall Law School chaired the Commission of Inquiry into the Non-Medical Use of Drugs, which also recommended lowering sentences for importing/exporting and trafficking and removing the prohibition on producing marijuana unless it was for the purpose of trafficking. The Le Dain report languished for years and no action was taken upon its recommendations. On the contrary, Canada continued to prosecute the War on Drugs with increased vigour.

In 1988, the Canadian Centre on Substance Abuse (CCSA) was created by Parliament as the national non-governmental organization (NGO) on addictions.[7] In 1990, the Health and Welfare secretariat was created to coordinate activities around illegal drugs within the federal government and abroad. In 1992, the government established Canada’s Drug Strategy. It called for a balanced approach to illegal drugs, including control and enforcement, prevention, treatment, and rehabilitation and harm reduction. These changes were made by the Progressive Conservative government of the day. (The current ruling Conservative Party of Canada takes a different approach, emphasizing control, enforcement, and incarceration.)

Then in 1997, amid much controversy, the Controlled Drugs and Substances Act — a very severe law — was passed by a Liberal government. Witnesses who gave testimony at parliamentary committees were highly critical of this punishment-oriented law. They said it perpetuated 1920s-style prohibition without placing any emphasis upon harm reduction or prevention. The Liberal government at the time nonetheless ignored expert advice and ramped up its policy of incarceration. By 1998, Canada’s Drug Strategy (the one with the balanced approach, led by Health Canada) was receiving no funding at all.

The 1997 tough-on-crime legislation proved to be an abject failure, however. Despite the fact that many more people were in prison, almost twice as many people were using marijuana in 2001 as in 1991.[8] By 2012, Canada’s consumption rate was one of the highest in the world.[9] About three million Canadians today use marijuana, including 17 percent of those between the ages of fifteen and sixty-four. Although one poll from 2012 showed that 66 percent of Canadians support reforming the marijuana laws to reflect this reality, prohibition and severe penalties continue to be government policy. Costs are soaring and prisons are double-bunking in record numbers.

Back in 2001, Canada had become the first country in the world to permit medical marijuana use. This was a singular accomplishment, but it only happened because the courts compelled it.[10] The resulting Marihuana Medical Access Regulations (MMAR) have been less than adequate, entailing much red tape, poor-quality marijuana, reluctant doctors, and a continuing risk of prosecution. Today, the Conservative government is revising the system in ways that will make it even more difficult and more expensive for patients to acquire their medical marijuana.

In 2002, the Senate Special Committee Report on Cannabis surprisingly recommended outright legalization of marijuana for those over sixteen years of age, including an amnesty for all those who had been convicted of possession of small amounts of marijuana and elimination of their criminal records. Having considered the pros and cons of decriminalization as opposed to legalization, the committee decided that decriminalization represented the “worst case scenario.” Why? Because it did not allow for governments to control and regulate the drug, thus leaving organized crime in the driver’s seat.

The Senate Committee noted Canada’s high rate of marijuana use, despite extraordinary and expensive efforts to eradicate the industry. Enforcement had become particularly severe since the attack on the World Trade Center in 2001. While agreeing that “at-risk” behaviour is possible with marijuana use, the committee questioned the strategy of resorting to criminal sanctions as the best way of controlling its use. “Even if cannabis were to have serious harmful effects, one would have to question the relevance of using the criminal law to limit these effects,” it said. As far as the committee was concerned, the main social costs incurred by marijuana use were those incurred as a result of its criminalization, not as a result of its consumption.

Faced with the international implications of what it was recommending, the Senate Committee was careful to note a North-South geopolitical disconnect in drug laws. They pointed out that organic substances mainly originating in the South, where they were often part of the local tradition and culture, were strictly prohibited in the North. These included coca, poppy, and marijuana. Substances mainly originating and produced in the North, however, were merely regulated as legal substances. These included alcohol, tobacco, and pharmaceuticals. Yet all of the latter demonstrably represent a serious threat to the health and well-being of users and others.

Neil Boyd, a Canadian expert on illegal drugs from Simon Fraser University, is even more pointed in his analysis. He notes that the United Nations power brokers who signed the 1961 Single Convention on Narcotic Drugs did not themselves have territorial control of the production and distribution of some of these drugs, including the opiates. He thinks it was for this reason that these drugs were prohibited. The power brokers did, however, control alcohol, tobacco, and pharmaceuticals. These were thus deemed to be properly the subject of regulation rather than prohibition.[11] The implications of this analysis are clear. The world body appears to have been complicit in legitimizing the use of those drugs that are more likely to provide profits to the North, while prohibiting those that do not.

According to the Senate committee, the United Nations international drug control conventions codified arbitrary classifications of illegal drugs that were not supported by science. These conventions made no mention at all of alcohol or tobacco, even though the international community claimed to be curtailing the use of dangerous drugs. Especially with respect to marijuana, the committee said that international conventions represented “an utterly irrational restraint that has nothing to do with scientific or public health considerations.”

Canada’s political response to illegal drugs has been reliably tough on crime for fifty years, with one short-lived legislative attempt to liberalize. Prime Minister Paul Martin’s minority government tabled a timid law in 2004 decriminalizing small amounts of marijuana. Less than fifty grams could attract a fine of up to four hundred dollars, but there would be no criminal record. On the other hand, the law provided for a doubling of sentences for growers. Advocates of more liberal marijuana laws were appalled, saying the new law would be worse than before. Martin’s government fell before Bill C-17 could be passed, but his party in 2012 voted to support a policy of outright legalization.

Since the election of the Conservative government in 2006, though, and up until the time of writing, Prime Minister Harper has taken an extremely hard line on drugs, establishing long mandatory minimum sentences for all illicit drugs, including marijuana, and prosecuting drug laws with renewed vigour. Approaches that stress public health or harm reduction are fought tooth and nail in the face of Supreme Court decisions allowing for the application of these models.

On the one hand, the government has opposed harm-reduction projects like InSite, the safe injection site in Vancouver. On the other hand, having lost its bid to shut InSite down, in 2011 the government endorsed a heroin research project called SALOME (The Study to Assess Longer-term Opioid Medication Effectiveness) in which addicts will be provided with treatment in the form of either heroin or hydromorphone (both are opiates, but the latter is legal).[12]

An earlier project, NAOMI (North American Opiate Management Initiative), had found that methadone (a synthetic opiate) was not as successful as heroin in helping addicts get into treatment, stop taking street drugs, and stop committing crimes to support their habit. For some addicts, therefore, prescribed heroin is the only effective option. However, the Conservative government has a visceral antipathy to providing heroin to heroin addicts under any circumstances for any reason. Hydromorphone is the more palatable alternative for this government, if it can be proved to work, because hydromorphone is, unaccountably, legal.

Researchers say that abstinence from opioids is not a realistic objective when dealing with addicts.[13] The addiction must be recognized as a chronic condition and treated by long-term, maintenance-oriented substitution methods. Methadone, for example, must be provided on a long-term basis. But using methadone to detoxify a user to get him to abstain carries a “really high risk of death.” Abstinence is simply not an option for some users.

Prescribed heroin is commonplace in Europe as a treatment for heroin addiction. The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) said in its 2007 annual report that virtually all nations in the EU provided opioid substitution treatment and needle exchange programs. These programs had increased in number tenfold over ten years.[14]

The evidence accepted by these nations — that prescribed heroin is a proven successful therapy — has so far not been accepted by the Canadian government. The myopia engendered by a tough-on-crime approach to drugs thus has the direct result of endangering the lives of addicts and their friends and families. This is just one illustration of the intransigence of the current government in the face of overwhelming evidence.

High Technology, Designer Drugs, and Old-Fashioned Prescriptions

If we needed further proof that the War on Drugs cannot be won, it lies in the ingenious and continual invention of new synthetic drugs, and in new methods of distribution that better enable dealers to circumvent law enforcement.

One of the most innovative distribution networks to emerge depends upon neither a geographical location nor a physical currency. It is known as the Silk Road, and first came to light in 2011.[15] The Silk Road is an online marketplace (somewhat like eBay) that sells many products, but largely drugs. Law enforcement officials know where to find it online, but until recently they were unable to shut down the drug sales. The Silk Road uses a popular Internet anonymizer tool called “Tor,” which makes it virtually impossible to locate the computers. And it uses the new anonymous, stateless, encrypted online currency called “Bitcoin.”

It took the FBI more than two years to arrest the purveyor of the Silk Road in October 2013.[16] But within one month of Ross Ulbricht’s arrest, a new Silk Road drug bazaar was up and running. The new operator continues to use Tor (which is still safe — Edward Snowden used it when he released information from the National Security Agency in 2013), and has improved the technology so as to keep buyers’ identities secret. Traffickers have thus proved themselves remarkably capable of adapting swiftly to the pressure of law enforcement, as they have in other areas of the drug trade.

Key players in creating the Silk Road say that selling drugs over the Internet is a way of bypassing criminal gangs as it allows people to buy their drugs straight from the producer. Users who buy from the Silk Road say that “the quality is more consistent, the sale is safer, and the experience better than trying to find a street dealer.” Some even claim that the site helps combat addiction by requiring buyers to confirm their intentions and make decisions carefully.

Canadians are among the top buyers and sellers on the Silk Road. Canada places fifth on a list of the twelve most frequent shipping and originating destinations.[17] When asked what law enforcement is doing about the Internet trade, though, the Royal Canadian Mounted Police (RCMP) say simply that they do not monitor anonymous websites.

Drugs are delivered over the Silk Road by the mundane means of private shipping companies or by registered mail, and often arrive in vacuum-sealed bags to avoid drug-sniffer dogs. Elaborate measures are taken by the site to protect its clients, but even so, a handful of users have been arrested in the United States and one was convicted in Australia in 2013. The amount of money changing hands is not yet significant (about $2.21 million in today’s Canadian dollars per month, according to researchers at Carnegie Mellon University),[18] but drug warriors regard it as important to nip this new development in the bud. As cyber security professor Dr. Nicolas Christin says, though, “It’s not a matter of the police locking a few guys up to end this. It is very distributed: we are looking at more than 600 sellers each month.”[19]

One large problem law enforcement faces in trying to put a stop to the Internet drug trade is the human rights issue. It is expected that officials will try to tackle the industry through the vulnerabilities of Bitcoin. However, if Bitcoin were to be banned, bloggers in places like Saudi Arabia and Vietnam — who use Bitcoin to host services on alternative, dissident websites — would be vulnerable. And Tor is a “staple of activists avoiding Internet censorship or government crackdowns the world over, including China, Iran and Syria.” Thus, officials who try to interfere with these technologies in search of drug dealers will also be likely to expose the identities of dissidents, placing their lives in grave danger. In a supreme irony, a large proportion of Tor’s funding comes (indirectly) from the U.S. State Department’s Internet freedom budget.[20]

Another recent trend compels law enforcement to work hard to keep up. This is the determined and perpetual development of a host of new drugs that allow dealers to stay one step ahead of the law. While the latest World Drug Report 2013 says that the world has achieved stability in the use of traditional drugs (meaning mainly heroin, cocaine, and marijuana), it also says there has been an alarming increase in new psychoactive substances (NPS).[21] The number of NPS has increased more than 50 percent in less than three years, from 166 to 251. This means there are more NPS now than there are banned drugs. These new “legal highs” or “designer drugs” are being created in order to foil prohibition. As the report says, “Given the almost infinite scope to alter the chemical structure of NPS, new formulations are outpacing efforts to impose international control.” As fast as one drug is declared illegal, a new one is developed. One commentator has observed that this means the drug war has not been so much “lost” as it has become “obsolete.”[22]

The World Drug Report 2013 admits that “the international drug control system is floundering … under the speed and creativity of the phenomenon [of new designer drugs].” In a statement that comes close to conceding defeat, this report says that banning the new drugs is possible, but a “very challenging undertaking” due to “the sheer rapidity of emerging NPS.” In Canada alone, fifty-nine NPS were created over the first two quarters of 2012. Users were also experimenting with salvia, jimson weed, datura, and ketamine.

Whereas the U.N. report insists that public health is “pivotal to [the United Nations’] overall strategy,” in fact, the United Nations is and has always been mainly preoccupied with how to control the new trade in designer drugs by law enforcement. One observer, noting the new attitude to legalizing marijuana in Latin American countries, says, “The distinct sounds of circling wagons characterized the rhetoric at the launch of the 2013 World Drug Report.”[23] And at the same time that NPS are proliferating, the United Nations reports that cocaine use decreased by 40 percent in the United States between 2006 and 2011, while heroin use was stable or falling around the world.

Most of the new designer drugs are stand-ins for MDMA (ecstasy), marijuana, LSD, and magic mushrooms.[24] Ecstasy is the only one of these drugs that is known to cause overdoses in users, and this only happens if the drug is not taken properly. All of them, though, are illegal. NPS, on the other hand (which are emerging at the rate of one per week) are created in labs and are legal until banned.[25] There is no way for a user to know how dangerous they are. There are seven hundred websites in the European Union alone that are selling them. “Moves to ban new drugs simply inspire chemical innovation that sidesteps the law,” so this is yet another way that the law enforcement model is failing to prevail.

A final recent area of concern is the abuse of prescription drugs. A new report from the Canadian Council on Substance Abuse (CCSA) describes the problem, which is generally agreed to be serious.[26] Double-doctoring and the diversion of pharmaceuticals are practices that feed addictions to painkillers and other drugs. The rash of deaths attributed to abuse of oxycodone, for example, is well documented. No mention is made by the CCSA of the fact that drug companies aggressively market their drugs, or that they sometimes fail to reveal side effects identified in clinical trials. The report does not talk about possible treatment options for those already addicted.[27] Much, though, is made of the need for more resources for law enforcement.

A prime example of prescription drug abuse is illustrated by the recent removal of oxycodone from pharmacy shelves in the United States. Twenty years ago, this drug was marketed by its manufacturer, Purdue Pharma, as the new miracle painkiller.[28] By 2012, the addiction numbers were so high that the company replaced the drug with an equivalent formulation that was harder for people to abuse (because it could not be dissolved and injected). In 2007, Purdue and three of its top executives pleaded guilty to misleading doctors, regulators, and patients about the risk of addiction, and paid millions of dollars in fines. In the meantime, though, many addicts had turned to heroin as a cheaper alternative. They also turned to alternatives such as morphine and codeine. These alternatives have the same or a higher risk of overdose. They also present a scenario where needle-sharing is likely, leading to the spread of disease. Meanwhile, the withdrawal of the original formula for oxycodone led to an increase in street prices for it, resulting in increased market volatility and related crime. The fact that Canada still permits oxycodone to be prescribed in its original form is causing friction with the United States, since users are smuggling the Canadian product — known as hillbilly heroin — across the border.[29]

Withdrawal from oxycodone is excruciating and long-lasting. Once it was banned in its injectable form, addicts turned to alternatives. One of those was fentanyl, a synthetic opioid. Fentanyl is legal and prescribed as a patch so that the active ingredient can be released gradually. Addicts learned that they could scrape the substance off a patch and smoke it to obtain relief.[30] Or they could ingest the whole patch, or cut it up and apply it to their gums. Fentanyl is one hundred times stronger than morphine, and is normally used for palliative care or for cancer-induced pain. Fentanyl can kill.

Not incidentally, a recent study published in The Lancet said that more than half of the deaths caused by illegal drug use (in a global survey for 2010) were caused by prescription drug abuse.[31] The worst death rates were found in countries with harsh anti-drug regimes.

Intended Consequences

The official, prohibitionist approach to plant-based illegal drugs (marijuana, cocaine, and heroin) has become basic to the world’s approach to all illegal drugs. These three are significantly representative of the public’s serious concerns as to the choices people make about their preferred high, or about their preferred medicine.

Any discussion of legalization or decriminalization of illegal drugs usually devolves into a discussion of marijuana, which is among the least harmful of all banned drugs.[32] The more difficult question, though, is what to do about those drugs that are regarded to be more harmful to individuals who use or abuse them (heroin, for example). On this question, the experts are divided. Some say that the least harmful model includes the outright legalization, control, and regulation of all illegal drugs, adjusting the details to recognize and deal with the differences among drugs. Others who might allow for some relaxation of the laws around marijuana are dead against the idea of similar treatment for heroin and cocaine, referring to the harms these can cause to individuals and families.

There are, however, well-documented consequences arising, not from the use of the drugs themselves, but from the fact that they are prohibited. An examination of these so-called “unintended” consequences of prohibition is important when it comes to deciding whether to continue the status quo of prohibition or adopt a new approach. It has to be said, though, that we are well past the point where we can call such consequences “unintended.” They include the well-known damage caused by prison sentences and criminal records, the destruction to families and communities whose members are in prison, the health consequences of allowing crime bosses to distribute uncontrolled and unsafe products, the violence and corruption associated with organized crime, and the health consequences of spreading HIV, Hepatitis C, and other diseases to users and to the community. These are serious and devastating harms. They are easily anticipated and can be alleviated by policy changes that recognize the damage done by prohibition.

In addition to these, there are harms caused to offenders who are saddled with criminal records. In the United States, a felony conviction can result in the loss of the right to vote, to obtain public housing, federal education assistance, welfare benefits, food stamps, and other services.[33] In Canada, the ability to obtain employment and to travel freely is permanently impaired by a criminal record. In all cases, the shame and stigma of a record is very damaging. These consequences have been clearly recognized for years. Proponents of prohibition can therefore be said to both understand and “intend” the serious and debilitating consequences of the criminalization of drugs.

As one small example, I was once approached by a middle-aged woman — I’ll call her Jane — to defend her on a simple possession charge. She had been arrested for possession of a small amount of marijuana, and intended to plead guilty and pay the fine. She also worked at a retail outlet downtown, and was most concerned about losing her job.

Jane told me that the night before she was arrested, she had been partying with a group of people, all smoking marijuana, and the group included members of the local RCMP. These turned out to be the same people who arrested her the very next day. She was, of course, at a loss as to why they would arrest her for smoking marijuana when they themselves had been partaking.

Despite our best efforts, Jane’s employer soon learned of the conviction. Jane was laid off immediately. I expect she has not worked at a decent job since, much like thousands of others across the country, because her criminal record will be held against her. She will certainly have no faith in the justice system or the police who are bound to uphold it.

Another example of “unintended” consequences has to do with the effect of a criminal record upon travel opportunities. Recently, a resident of Victoria, B.C., won a contest to go to the Super Bowl in the United States.[34] When he arrived at Pearson International Airport in Toronto, he was turned back by U.S. Customs because he had been convicted of marijuana possession in 1981 — thirty-two years earlier. Myles Wilkinson said he was nineteen years old at the time of his conviction. He was caught with two grams of marijuana, for which he paid a fifty-dollar fine. He never did get to the Super Bowl.

Crossing the border into the United States gets more perilous by the day if you make any mention of illegal drugs. It is the federal government that controls the border in the United States, so any disclosure a traveller might make about previous drug use or intentions can bar him from entry.[35] If you tell the border agent you are travelling to Washington State to take advantage of the new legal marijuana laws, you can be turned back. If you admit to having used drugs in the past, you can be turned back. You can also be banned permanently from entry. In order to cross the border in such circumstances, you will be required to apply for an expensive, renewable travel waiver. Such travel restrictions impair an individual’s ability to seek employment, maintain contact with family and friends, conduct business, and live an ordinary life.

In order to start the process of reaching rational conclusions about illegal drug policy, it is important to consider the various risks, harms, and benefits provided by the main three plant-based drugs. The next chapter looks into the known characteristics of marijuana, cocaine, and heroin, both positive and negative. It also draws a very important distinction between public health harms caused by the use of the drugs and harms caused by the fact that they are illegal. The tension between these two should help determine our public policy approach to drugs.