Making the case for regulated drug markets

Today the blog returns to the serialisation of Transform's Autumn 2007 publication 'After the War on Drugs, Tools for the Debate'.

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Chapter 4: Making the case for regulated markets

Although it is important to expose the shortcomings of current drug policy, no amount of devastating critique of prohibition will achieve very much unless a convincing case for an alternative policy is made. The big problem with the so-called ‘legalisation lobby’ in the past is that brilliant critique has tended to be followed with a one word solution – ‘legalisation’. Chapter 4 considers how to advocate clearly what the replacement for prohibition will look like, and the principles by which such policy alternatives will be developed and implemented. Chapter 5 chapter considers a number of the most common concerns raised about a post-prohibition world, and how these concerns can be addressed.

From 'legalisation' to 'regulation'

The alternative to the current system of drug prohibition needs to be clearly and confidently specified. Just saying ‘legalisation’ is inadequate - and indeed problematic, as the term comes with a lot of baggage. For many people it is associated with either ‘hippies and pot-heads’, specific political ideologies (usually libertarianism or liberalism) that condone the use of drugs, or suggests a surrender’ in the drug war that would leave us with some sort of un-policed ‘free for all’.

Using the term in isolation creates a vacuum that will be filled by such misconceptions (which are regularly promoted by prohibition’s advocates and political beneficiaries)– frequently of the 'heroin would be available in sweet shops’ variety.

In actuality the term ‘legalisation’ describes a process (rather like ‘abolition’)- in this case the process of something currently illegal being made legal – rather than an end point or goal in itself. It gives no indication what the policy replacing prohibition would look like. For this reason it is very important that the term is clarified as soon and often as possible.

Explain what you mean by ‘legalisation’ at the earliest opportunity and try to talk about ‘regulation and control’ as often as possible. There is no harm in repeating the phrase – in fact we would encourage it. Avoiding the term ‘legalisation’ altogether is no bad thing, but if it is unavoidable, either use it in the phrase ‘legalisation and regulation’ or make it clear it is a process not an end point: ‘legalisation is necessary to move from prohibition to legally regulated markets’. A useful alternative is to talk about ‘moves towards legal regulation and control’, or ‘legally regulated drug markets’ .

Be clear about what regulated markets are, and what they are not

Once you have clarified that your understanding of ‘legalisation’ is very specifically ‘regulation and control’, whenever possible it is worth going further to explain in very clear terms more precisely what you are proposing and the principles on which future policy developments would be based.

Some activities and products would remain prohibited as part of the regulatory framework.

This is hugely important point to make as it reinforces the idea of control, and moves perceptions away from the misconceptions of ‘legalisation’ and libertarian free markets. Activities that would remain prohibited would include, for example, underage sales, consumption in public, unlicensed sales, advertising and so on. Similarly, supply of certain particularly potent or high risk preparations of some drugs would also remain prohibited. All psychoactive drugs are potentially dangerous substances that should be subject to tight legal and social regulations. We should learn the lessons from tobacco and alcohol (see– ‘talking about… alcohol and tobacco’ on p.37). The level of enforcement, and associated penalties for activities that remain prohibited, would be determined by legislation, police force or local licensing body as appropriate.

Discussing the role of ‘prohibitions’ post legalisation may be a bit confusing; to avoid this, talk about replacing ‘absolute prohibition’ or ‘the war on drugs’ with ‘a system of strict legal regulation and control in which some activities remain prohibited’.

Make it clear you are not talking about a free market...

.. that would give carte blanche to multinationals and pharmaceutical companies to market or promote recreational drugs (see ‘concerns about legalisation/regulation’ on p.46). Producers would be strictly regulated, particularly with regard to advertising, marketing, health warnings and packaging.

Different regulatory regimes would be put in place for different drugs in different locations.

The strictness of regulation for different drugs (or different preparations of a given drug) would be determined by the comparative risks associated with their production, supply and use.

Regulatory regimes would be based on existing models

This is a point that allows people some real world perspective on what is being proposed. Models include;

• Medical prescription (possibly involving supervised use) for the most risky drugs (e.g. injectable heroin – the legal framework for which already exists in practice)
  
  
• Over the counter pharmacy sales – from qualified pharmacists (possibly with additional training for vending non-medical drugs)

• Licensed sales (as with off licenses or tobacconists) with various available tiers of licensing conditions that could be applied as appropriate

• Licensed premises (pubs or Dutch style coffee-shops) again, with variable licensing conditions.

• Unlicensed sales for low risk drugs – like coffee

(for more discussion of regulatory models see the Transform, KCBA and HOBC reports detailed in Chapter 6, p.59).

The type of regulation for each drug would be based on evidence of what works.

Unlike the inflexible straitjacket of prohibition, a regulatory regime could develop a range of responses to the risks that different drugs present. Different models would be piloted and tested, with policy development and implementation based on evidence of effectiveness. Regulatory frameworks could be changed and updated in response to changing circumstances.

Implementation would be phased and based on the precautionary principle.

Regulated models would not be rolled out for all drugs overnight. It is likely that certain drugs would be legalised and regulated first (probably cannabis) and other drugs phased in over a number of years. Initially the default position would be to err on the side of stricter regulation, which could then be relaxed only if evidence suggested that would be more effective.

Internationally, this is about returning democratic freedoms to sovereign states.

Under this new system no country is going to be bullied into legalising and regulating any drug (in contrast to the bullying to maintain prohibition that many experience now). The changes we are seeking at the international level would change the UN legal system to allow the freedom of individual states to democratically decide on any move towards regulated drug markets if they determined that was the best way forward for them. It would merely put regulatory policy options back in the frame. If certain nation states (those, perhaps, where alcohol is still prohibited) wished to maintain absolute prohibition, that decision would remain their sovereign right.

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Print copies are also available, please contact Transform

Finding common ground: the principles of drug policy

Extract 6 from Transform's upcoming publication: After the war on Drugs, Tools for the Debate...

The first step towards establishing useful common ground is to point out that there are aims of drug policy and principles under which it should operate, that everyone in this debate can agree on. The principles and aims listed below will not meet with substantial disagreement (with some specific exceptions – see notes) and as such can successfully provide the starting point for more constructive debate between the advocates of alternative policy positions.

Establishing agreement on these fundamentals will allow you to maintain some control over the debate, defuse the anticipated tensions, appeal to the shared concerns of all participants, and create some breathing room in which a meaningful discussion can take place. From this point the debate can develop in a more constructive and rational way towards asking which policy alternatives are likely to bring about these policy aims we all seek.

(A table appended at the end of the guide uses these common ground principles and aims as the basis for a more detailed point by point critique of prohibition, and case for reform)

• All drugs are potentially dangerous, and all drug use is intrinsically risky
  

Making this point clear early on immediately establishes distance between you and any preconceptions about the law reform position being ‘pro-drug’ (a meaningless term anyway) or somehow ‘defending’ drugs or suggesting they are safe or cool. It also takes the sting out of many anti-regulation/legalisation arguments that revolve around shock/horror facts and anecdotes about how dangerous drug use is. As we will see later, the fact that drugs are potentially dangerous is at the core of the argument for their effective regulation.

• Drug policy should be based on evidence of effectiveness

This is the standard pragmatist’s argument, usefully engaging with the policy maker’s language and concern with ‘what works?’. It is a key point to emphasise, firstly because no-one can seriously make a rational argument against it (that we either shouldn't’t consider the evidence or that policy should be based on evidence of ineffectiveness), and secondly because it draws the debate away from the ideological fault lines, and towards the reality of prohibition’s failure. Emphasising evidence of effectiveness is a key part of re-conceptualising the debate as a rational/scientific one rather than a moral/ideological one.

• Drug policy should offer good value for money

This is essentially the same as the above principle that drug policy should be based on evidence of effectiveness, but has a more direct appeal to people’s pockets: both policy makers who have to decide how to allocate limited budgets, and the wider public who, as tax payers, are the ones funding drug prohibition in the first instance.

Emphasising this principle is another useful way of focusing debate on policy outcomes (rather than processes) and evidence of effectiveness. Because enforcement-led policy offers stunningly poor value for money – it is hugely expensive and creates further costs to society – economics is very fertile territory for arguing the reform position.

• Policy should be based on reality and adapt to changing circumstances

This principle also follows from broader pragmatic argument, but is worth spelling out. What seems obvious for all policy - that it should be based on reality - is less clear for the prohibitionist paradigm, the goals of which remain intimately entwined with a mission to promote abstinence and regulate pleasure.

Given society’s deep rooted dependencies on alcohol, tobacco and prescription drugs (not to mention numerous other ‘vices’ and ‘sinful’ pleasures) the idea that we can become free of precisely those drugs whose effects are pleasurable becomes an absurdity. But prohibition and its legal structures remain rooted in these puritanical principles, despite the fact that the social landscape has changed beyond recognition in the 50 years or so since the UN drug conventions were drafted. Furthermore, these conventions were drafted, largely at the behest of the US, to deal with a marginal drug problem largely confined to ethnic minorities and career criminals, not the huge swathes of the population who use illicit drugs today.

• Drug policy is primarily a public health issue

This is a more contentious point to make and is developed later in the guide. However, if you do succeed in moving the debate towards your position that drugs are primarily a public health issue, the prohibitionists are obliged to argue why it shouldn't’t be – or, more specifically, why certain drugs should be dealt with as a public health issue (e.g. Alcohol) and others primarily as criminal activity(see ‘the fault lines within existing policy’).

• Policy should seek to reduce drug related harm

Again this may prove more contentious. Transform maintain that the overarching aim of drug policy should be to minimise harm and maximise well being. Within this overarching objective we can identify a number of specific aims to reduce harms related to drug production, supply and use, with success measured against relevant indicators (including reduction in demand/use).

Prohibitionists traditionally maintain that the aim of policy is to reduce the use of drugs and ultimately to achieve a drug free society. This aim sometimes has the feel of religious dogma – a commandment to which all policy aims must remain loyal, if the promised land of the drug free world is to be attained. It is important to point out that some ‘drug related harms’ are associated with drug use and misuse itself, while others are specifically created or exacerbated by the enforcement of prohibitionist policy and law (e.g. reusing dirty needles, crime to support an illegal drug habit). Consequently, reducing specific prohibition-related harms feature within the aims of drug policy reform, but become a thing of the past under a legally regulated regime. As an analogy, reducing car exhaust emissions would no longer be an aim of transport policy if everyone was driving solar powered electric cars.

As you engage in the debate try to keep this distinction in mind, making it clear that there is a difference between the aims of drug policy reform, (essentially to remove the harms created by prohibition), and the aims of drug policy itself (to maximise well-being and minimise health and social harms related to drug use and misuse). This also helps to highlight how, when prohibition is replaced, we will be in a far better position to address the underlying social ills that fuel most problematic drug use.

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online July 2007...

Finding common ground in the drugs debate

Extract 5 from Transform's upcoming publication: After the War on Drugs - Tools for the Debate...

Finding Common Ground - bringing the two sides in the drugs debate together

The fault lines in the drug debate (outlined here and here) have, in Transform’s experience, held back the drug policy debate for many years. Too often, particularly in the media, complex issues are reduced to a knockabout between the hard-line prohibitionist ‘drug warriors’ on one side and the ‘liberal’ reformers or ‘legalisers’ on the other.

Participants on both sides of the fault line have often been guilty of misunderstanding and misrepresenting each others’ positions, rarely showing any willingness to listen or give ground. The result is a repetitive debate that invariably creates more heat than light and never progresses beyond conflict or stalemate. This polarization (often driven by the media’s desire to present a clash between strongly contrasting views) is a barrier to reform, and must be overcome before real change can take place. Progress requires the two apparently irreconcilable sides of this debate to find some common ground and adopt a new language that will enable meaningful dialogue. This chapter aims to show how to find common ground in the debate about the aims and principles of an effective drugs policy (coming to the blog later this week...).

In reality the policy debate is nowhere near as black and white as the media debate portrays it to be. It is not a battle between ‘pro’ and ‘anti’ drug campaigners, left and right, liberals and conservatives, or any other stark binary choice. It needs to become a rational, intelligent and sophisticated debate over the range of policy alternatives for addressing the issues of drugs in society.

It is important, therefore, should you be engaging in this debate in the media or any public forum, not to let yourself be pushed in the direction of a polarised emotive debate merely for sake of audience entertainment. Whilst there does exist a broad spectrum of views (from extreme authoritarian prohibition to extreme freemarket legalisation) almost everybody, including Transform, lies somewhere between the two, usually nearer the middle - and each other – than at either extreme.

Transform advocates the regulated central point on this graphic model – on the basis that this is the one that causes the least harm. This guide is about making the case for that position It is important to note that the different sides of this debate do not equate easily to broader political or ideological fault lines. The status quo / reform fault line is not simply the authoritarian / libertarian divide, nor the right-wing / left-wing divide, nor the socially conservative / socially liberal divide. This is a simplistic analysis, shaped largely by the media’s need for dialectical drama. Drug policy reform is supported by prominent thinkers and intellectuals from across the political spectrum, from Noam Chomsky to Milton Friedman, from members of all major parties in the UK and in the US, and from countries with a wide range of social, economic, political and cultural landscapes (again, see the Transform archive of supporters of reform). Some advocates of reform envisage replacing prohibition with a libertarian regime, others with draconian forms of social control. The reform argument itself is non partisan – it is simply a pragmatic position led by evidence of effectiveness and public health / harm reduction principles. Calling for legally regulated drug markets is actually the rational and moderate position between the ideological poles of absolute prohibition and free market libertarianism.

The suggestion that the drug law reform movement intends to ‘liberalise’ or ‘relax’ the drug laws is a common misconception that must be challenged. Advocates of law reform want more control and regulation of drug markets, not less. We are specifically calling for more and better regulation, and are specifically critical of the deregulation and lack of control that prohibition creates.

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online July 2007...

Different audiences in the drugs debate

The third extract from Transform's upcoming publication : After the War on Drugs, Tools for the Debate:

Different audiences in the debate

These starkly opposed assumptions (see: the fault lines in the debate between prohibitionist and reform positions) mean that the drugs debate is often conducted between groups of people who see the issues around drugs and their control very differently. You will encounter a range of different audiences in the political, media, NGO or public arenas, who have a range of different views on drug policy and policy reform. It is important to adapt your approach accordingly. The positions that you will find yourself arguing against can be roughly categorised as follows:

Evangelical prohibitionists

These tend to be people directly involved in drug enforcement; those who have a strong faith position (where drug use often equates to ‘sin’); or, occasionally, those who have had bad personal experiences with illegal drugs. (Note: none of these backgrounds preclude supporting reform – see: Transform’s archive of high profile supporters of reform). Always remember and respect the fact that these views are usually sincere and well-intentioned - they may have witnessed real drug related harm, are fearful it will get worse and passionately want to prevent it. To them drugs are a Pandora ’s Box, and prohibition – the law - is keeping the lid on it. They genuinely believe that ‘legalisation’ (as they perceive it) would pry open the box, cost lives and make the world a worse place. As such, they see themselves as prohibition’s principled guardians and advocates of law reform as their natural enemies.

Such views may be so deeply entrenched that there is little point trying to turn them round - it can be like arguing Darwinism with committed creationists. Sometimes the best you can achieve with such individuals or audiences is to use any public forum as an opportunity to put your views across, contrasting your rational reform position with the ideological prohibitionist one – and let the audience make their own minds up. That said, in Transform’s experience many of the least likely people, including some of our seemingly most implacable opponents, have in time been won over. Never give up hope, but be ready to cut your losses.

Knee-jerk prohibitionists

‘Knee-jerk’ isn’t meant here in any rude way, maybe ‘prohibitionists by default’ would be a good alternative term. These are people, probably constituting the bulk of your audience, who default to supporting some or most of the prohibitionist positions outlined above on the basis of exposure to one sided discourse and debate over a number of years. It is important to remember that, superficially at least, drug war rhetoric is very appealing, especially when unchallenged in mainstream debate by any coherent alternative. This audience’s position is based on ignorance of the reform analysis, rather than entrenched ideology, and is fertile ground for informing and changing perceptions. The shifting public opinion on cannabis reform (15% supporting decriminalisation/legalisation in the mid 80s, to over 50% today) provides strong evidence of how exposure to informed debate on this issue invariably pushes people in the direction of supporting reform. This is why you need to be getting involved in the debate.

Unconvinced reformers

This audience is your most receptive target. These are people who understand the failings of the current system and instinctively know that ‘something needs to be done’, but they are unclear what that might be. In the absence of a clear argument being made for moves towards legal regulation they will generally not feel inclined to challenge reforms being put forward by government, such as increased coerced treatment or harsh criminal justice crackdowns and ‘get tough’ initiatives. Their views on legal regulation may be clouded by misunderstandings about ‘legalisation’, put forward by cannabis evangelists or extreme libertarians. When they are presented with a coherent set of policy alternatives this group will usually be happy to support them.

Prohibitionist politicians

There is a fourth audience – the prohibitionist politicians, potentially the most important audience of all but often the most unequivocal and effective opponents of reform. The drug policy debate operates at an entirely different level to the rational / scientific one. It is important to bear in mind that many politicians hold a hard-line prohibitionist position for self-interested and career reasons – they are self-appointed ‘drug warriors’. Usually they are senior parliamentarians (ministers and their shadows), their spokespeople and the civil servants who back them up. They will trot out a ‘tough on drugs’ party line and back it up with a well-practiced repertoire of moral outrage or evasion, regardless of their personal views. They are the nearest thing you will encounter to a mortal enemy in this debate: they know their case is indefensible but argue it anyway. They are treating an important debate with disdain and in doing so are perpetuating a system they know to be harmful. No amount of brilliant argument will sway them because they are not interested in genuine intellectual debate or new ideas. If you have thoughts on how to influence this group please get in touch with us.

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online July 2007...