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Matters of Substance

Where do we go from here? A constitution for drug control

Wednesday, May 13, 2009

Drug control in the form of prohibition – or the ‘War on Drugs’ – has been a spectacular failure, argues American Professor of Law Scott Burris. However, he says the alternative is not to abandon drug regulation altogether, but to figure out a better way.

In this article he sets out the principles of a new constitution of drug policy that may help proponents find unity and serve as a bridge to a new system, across which we can move in a rational and effective manner.


Engaging with the conundrum of drug policy is a humbling experience. Even as a law professor – a professional supposed to know everything about everything – I feel embarrassed to offer advice. But my being conservative and humble will not do any good, so for the next 1,200 words or so I am going to prescribe. I won’t claim to be right, but I hope I will be wrong in stimulating ways.

Where do we go from here? That prohibition has failed is an evident and increasingly urgent fact. We see the failure in communities decimated by incarceration yet still vulnerable to terrible levels of drug-related harm. We see it in the booming drug business hardly constrained by all our suppression efforts. We see it in the dramatic destabilising role of drugs in nations like Mexico. We see its geopolitical force in the role of opium in the war in Afghanistan.

Prohibition has failed, yet one may reasonably tremble at the prospect of abandoning it. After all, what alternatives do we have? Decriminalising marijuana? Prescription heroin? Some vague notion of an end to prohibition with a nod towards 1930s America? Each is either too unspecific or far too narrow to reassure.

We should reject magical thinking about drugs. We should accept the evident truth that virtually all drugs can be used with benefit, if only pleasure, and that they can cause harm.

We can recognise that some drugs are more individually harmful than others, but that even small harms multiplied by widespread use can have enormous social consequences. We can recognise that the effects of drug use, negative and positive, are a function not just of a drug, but also of a genome, a psychology and an environment. We may therefore speak urgently of an end to prohibition, but we cannot speak seriously of an end to drug control. We’re already investing enormous resources in regulating currently legal drugs, and if we make more drugs legal, we will require even more control.

There are compelling reasons to regulate drugs of all kinds and substantial technical and political challenges in designing and implementing those regulations. A post-prohibition drug control policy will be a policy of taxes, licences, quality standards, sale and access limitations, medical supervision, effective enforcement, demand reduction interventions, supply control, workplace policies, drug treatment systems and – if we’re truly honest – comprehensive efforts to address the environmental and psychosocial drivers of high levels of pathological drug use.

We will be trying to use these tools in tricky ways to push consumptiontowards lower intensity, less harmful drugs; to reduce harms caused by control without unleashing the harms of greater accessibility. There’s quite a job of regulatory development to be done, but the straightjacket of dichotomous ideological argument has limited progress in taking on these tasks.

So where do we go from here?

We could focus on the international drug conventions and the agencies and assemblies in Vienna, and demand change. But until we get a better blueprint, until we have experience and tested models, the demand for change remains unconvincing.

There is only one course along which new drug policies can emerge and that is through national experimentation and its horizontal diffusion from country to country. For this experimentation, no change in the international conventions
is really needed. There is room within them for New Zealand and countries like it to pursue innovative modes of control without significant hindrance from Vienna. Someday, the conventions will need to be amended, but that will be a fruit of successful change, not its first cause.

So where do we go from here to begin this process of change?

We need ways of thinking about drug control that can guide us through a period of social learning, politics, reform and evaluation. For some, the guiding idea is a fuzzy image of a new, post-prohibitionist regulatory scheme, but I am dubious that anyone really has a clear idea of what that system would look like. This makes it difficult to convince anyone outside the choir that there is a viable alternative to prohibition.

The ideas we need could, I suggest, take the form of guiding principles, a sort of constitution of drug policy to help us move from one regime to another – a broad template for a radical change in direction, but also the bridge that connects the old system with a new one and across which we can move towards change in a deliberate and rational fashion.

Here are some articles that could underline such a constitution:

1. The object of drug control is public health:

  • the minimisation of harm caused by pathological drug use

  • the optimisation of the benefits of therapeutic drug use

  • drug use that does not cause harm is of no consequence

  • abstinence is an instrument but not a goal of drug control policy.

2. The harms caused by drug controlregulation must be considered in assessing the harm caused by drugs:

  • drug control policies can and do cause significant harm

  • it is the net harm – drug harm + regulatory harm – that measures the efficacy of a drug control strategy.

3. Regulation of illicit use must be balanced with access to beneficial drugs:

  • a basic goal of control should be to assure safe access

  • a system that controls drug availability but affords insufficient access is failing.

Drug control policy must learn from the evidence.

Drug control has only a limited capacity to address problems of which drug use is merely a symptom

  • the greater the prevalence of pathological drug use in a population, the greater the likelihood that drug use is itself a symptom of deeper social deficits

  • drug control regulation must be integrated into comprehensive responses to social determinants of mental and physical illness.

Where do we go from here?

The Mäori elder who welcomed us had it right: reconciliation is a good start.

We need to reconcile everyone who is concerned about drugs and their effects, regardless of their current prescription for change. Conflict about means should not prevent people from working with each other towards the same ends.

Once we are speaking constructively, we need to reconcile our policies with reality, and by that I mean with the evidence. We need to reconcile those whose drug use harms themselves and others with the better angels of their natures. The stigma and demonisation – and the hypocrisy they reflect – must end.

Where are we going?

Well, let’s hope we can go forward, instead of going in the same old circles.

  • Professor Scott Burris is Director of the Public Health Law Research programme, a newly established $US19 million research programme exploring legal and regulatory solutions to pressing health challenges.