How to Make a Case for Legal Regulation
At Drug Policy Australia, we recognise that Drug Prohibition has been an unmitigated catastrophe. Not only has it failed to control the trade and use of illicit drugs, but it also increases the harm to society by creating a range of unintended consequences that threaten the health and human rights of all members of society, especially the vulnerable.
Australia should be a global leader in evidence-based drug policies having adopted Harm Minimisation as the national strategy for issues related to alcohol and other drugs since 1985. The National Drug Strategy 2004 - 2009 priorities harm minimisation in dealing with the use of illicit drugs and the misuse of licit drugs.
The present course will not be quick or easy to correct; few people alive today have known anything other than punitive drug laws, and change of this magnitude can seem like a radical proposition. It is our job to show that the most dangerous choice of all is to ignore the suffering and injustice caused by our current failed policies.
It is essential to recognise that those who argue for prohibition are often motivated by the same ultimate objective that we oppose it. They are concerned for other people – particularly the young and vulnerable – and do not want them to suffer addiction, ill health or untimely death from drug use.
That common ground is our strength: by listening and responding patiently to the concerns of others, we can build an argument based on shared objectives and an open-minded look at the evidence, which will point to the urgent necessity of legal regulation.
What follows is a primer for issues and objections that are likely to be raised in discussion. We hope it will prove helpful in making your arguments for change.
In the drugs debate, there is often not enough clarity in the terms we use. In particular, there is widespread confusion over the difference between ‘legalisation’, ‘legal regulation’ and ‘decriminalisation’.
‘Legalisation’ refers to the process by which illegal drugs become legal, whereas ‘legal regulation’ is the end state in which the production, supply and use of a drug are no longer criminal, but instead regulated and controlled by the government like any other type of commerce.
‘Decriminalisation’ is a bit more ambiguous, since it refers only to personal possession and use, which can be challenging to define, and leaves significant grey areas where users continue to interact with an illegal supply chain. While this represents a step in the right direction, it is not an ultimate solution, since it does not provide legal clarity or protection from a dangerous, unregulated market.
Objections and Answers
What would legalisation (legal regulation) actually look like?
Discussing legalisation, you may hear something along these lines: “So they’ll be selling heroin in supermarkets, will they?”
Few would endorse this radical free-market view. We believe that currently illicit drugs should be governed in the same way as legal psychoactive substances, such as caffeine, alcohol and medicine. We already have a range of options, depending on the drug in question:
- Prescription – Substances considered particularly dangerous, such as heroin, could be prescribed to users registered as dependent by a qualified and licenced healthcare professional, and consumed in a supervised setting.
- Pharmacy – Licenced professionals could provide a point of sale for drugs such as MDMA and amphetamines, providing rationed quantities to those who wish to use them. There might be additional restrictions in place, such as a licence requirement for the consumer.
- Licenced Sales – Lower-risk drugs could be sold at outlets that obtain a licence under strict conditions, possibly including age restrictions, health and safety advice, and a ban on all advertising and promotions.
- Licenced Premises – In much the way that alcohol – or, in some countries, Cannabis – is often provided, licenced premises could provide a substance for on-site consumption, subject to strict laws and regulation such as age checks and responsibility for customer behaviour.
These examples implicitly point to the dangers of the illicit drug market, which, due to its illegality, operates without oversight and regulation, under conditions that encourage the worst possible behaviour.
Again, the goal of our efforts is to show that the continuation of our current policies is the radical, dangerous choice.
- Current models of legal regulation of drugs in Switzerland, Canada, USA do not mean easy access to all drugs. They are, in fact, distributed within heavily regulated markets. Legalisation of drugs would not mean universal access to all drugs. The current system of prohibition allows easy access to all drugs through unprotected and unregulated markets.
- Legal regulation would subject the drug trade to strict controls and oversight, which our current system fails to provide.
- Legal regulation would allow governments to make decisions about how, and to whom, drugs should be sold. These decisions currently rest in the hands of criminals.
- At the moment the only control is seizure and arrest, which encourages risk-taking and undesirable behaviour.
- Sales to minors would be restricted under a system of legal regulation. Criminals are unlikely to ask for ID since they already operate outside the law.
- As shown in the introductory summary, there are several ways to provide drugs, subject to strict oversight and regulation appropriate to their type. Few would argue that heroin should be sold in supermarkets.
- Drugs are already widely available and used in Australia. The 2016 National Drug Strategy Household Survey found that almost 1-in-10 respondents reported having used cocaine at least once in their lifetime. More than a third have used Cannabis. They do so by interacting with a manufacture and supply chain that is illegal and unregulated from start to finish, placing themselves at great additional risk.
- Prohibition was a leap into the unknown. It has failed on its own terms and caused a litany of dangers we now know all too well.
- We already regulate many risky activities and substances. For medical purposes, we produce and provide many otherwise restricted drugs (opiates as morphine, amphetamine as Adderall and Cannabis as CBD oil, etc.), without the violence and corruption that characterise the illegal trade.
- Many countries have undertaken successful reforms: such as the legalisation or decriminalisation of Cannabis in Uruguay; Canada and many US states; the decriminalisation of all drugs in Portugal; and the legalisation of heroin in Switzerland.
- We can also apply what we have learned from the regulation of other risky but legal activities and substances, of which there are many.
- Policy changes will be carefully weighed and debated, before incremental introduction and on-going monitoring, subject to revision. We are arguing for an approach that is responsive to evidence.
- No one is claiming that. We are aiming for a reduction in the range and severity of the problems caused by drug use, and an end to the harm done by prohibition itself.
- Bringing the drug trade under government regulation and oversight will allow us to address the harms that drug use can cause. But perfection in human behaviour is not likely or to be desired – inflexible and unrealistic ambitions lead to disastrous policy outcomes, as our present situation proves.
- Addiction and substance misuse are both cause and symptom of many other personal and social problems. Legal regulation will eliminate the downward spiral of criminalisation, make intervention and prevention more effective, and mitigate many of the severe health risks of drug use. Self-destructive behaviour will always persist, which is not a justification to continue with our current failed policies.
Despite more than half a century of prohibition, with more than a trillion dollars spent, illicit drug use across the world has not been brought under control.
Since its inception in 2016, Australia’s National Wastewater Drug Monitoring Program has found a year-on-year increase in consumption of methylamphetamine, cocaine and fentanyl, with a relatively small downward trend in heroin and MDMA use. Globally, the UN reports that the number of drug users has increased from 208 million in 2006, to 255 million in 2015.
These are damning statistics, particularly when weighed against the economic and human costs of prohibition.
- Figures such as those quoted above suggest that the current system of prohibition has failed to reduce drug use.
- Comparative studies of different countries show no link between strict enforcement and levels of use.
- Cannabis sale and use are functionally legal in the Netherlands, yet rates of use are comparable to the European average.
- Portugal decriminalised all drug use over20 years ago but has not seen a dramatic rise in drugs use. Deaths from drug use have reduced significantly, and levels of consumption remain below the European average.
- Looking at overall drug use is not the best way to approach this argument – except that it discredits the prohibition argument that criminalisation reduces total drug use. Harmful use should be the critical consideration, rather than the many instances of drug use that are non-problematic. Legal regulation produces better results in identifying and addressing problematic use, not to mention removing the compounding effect of criminalisation.
- The private sector will not automatically take over the drug trade. It will depend on how the government regulates the market. State-run institutions or non-profit organisations will have a role to play, either in the outright provision or regulatory oversight.
- We can learn from mistakes and improvements made in the management of alcohol and tobacco markets. Despite their manifest harms, these drugs were for some time aggressively marketed, leading to an increase in use. Tobacco regulation has since been tightened on many fronts, leading to a massive reduction in daily smokers, in Australia and abroad.
- While big business and private companies have many faults, they do not compare to organised crime syndicates. They can be held to account by governments stockholders, consumers and unions, pay taxes and generally operate without violence.
- While the comparison between organised crime and big business or government bodies may seem flippant, we know from experience that the drug market will not disappear. These are our choices.
Protecting youth is one of the most widespread and emotive objections to drug law reform, yet it is a fabricated argument.
It is our current drug laws that place young and vulnerable people at the most risk. We are seeking to establish a market with strict regulation on sales to minors, coupled with a redirection of funds from policing to mitigation through education rehabilitation services.
- Young people currently have access to drugs in an unregulated environment. The 2016 National Drug Strategy Household Survey of Australia found that 17% of respondents aged 14-19 had recently used illicit drugs.
- The drugs that young people currently use are not subject to any reliable controls. A 2018 study found that heroin seized in the state of Victoria had a purity that ranged between 3.6% and 80.9%, creating a massive risk of overdose.
- The drugs supplied by the black market are often contaminated and of unknown strength. For example, MDMA, a popular drug among young users, has been found in some instances to contain chemicals far more dangerous than intended.
- To obtain drugs, children engage with a criminal subculture, where they may be vulnerable to other forms of risk, or encouraged to escalate their drug use.
- Criminalisation at an early age can have a profound effect on a young person’s life, affecting self-esteem and future opportunities.
- We would all prefer to see young people avoid drugs altogether, but the reality right now is that if they do choose to experiment, they do so in the riskiest possible circumstances.
- The proper task of the criminal justice system is not to send messages, and it tends to be unsuccessful when it does. Adolescents are prone to reject adult advice when delivered in an authoritarian and punitive fashion.
- There are many activities that we consider to be immoral or undesirable that are not punishable by law. We have other ways of discouraging this behaviour, often more effective than, and not at all helped by, the interference of the criminal justice system.
- The decline in rates of smoking, including among young people, shows the great success that regulation and public health promotion can have, without the threat of criminalisation.
- The measures applied in the example of smoking, such as control of packaging and shop displays, are not available to us except under a legal, regulatory framework.
- The current punitive system alienates users, preventing them from seeking help or advice, and sowing mistrust in authority. That is the unintended message we are sending to young people.
- Marginalised people are already using illicit drugs at high rates, and less able to access help as a result. Almost one in ten clients of specialist homelessness services in Australia reported problematic drug use, which in turn hurt their likelihood of securing housing.
- Criminalisation further marginalises vulnerable people whose drug use is often exacerbated by their marginal status. The results is a cycle of despair and drug use, that further marginalisation them from society and support services.
- Marginalised and vulnerable people are often poorly equipped to handle the criminal justice system, compounding their disadvantage.
- Ethnic minorities are often arrested and imprisoned for drug offences at disproportionate rates to their drug use. Indigenous people in Australia are more likely than the non-Indigenous population to be detained for a similar crime. The reasons for this are complex, but clearly, Indigenous people are at more risk from the intervention of the criminal justice system in what should be a public health matter.
Humans have been taking drugs for thousands of years, but only in the last century has this behaviour been penalised, persecuted and prosecuted. The era of prohibition has criminalised hundreds of millions of people, with devastating consequences to them, their families and society at large.
While harmful psychoactive substances such as tobacco and alcohol are normalised and widely available, other plants and chemicals are deemed illicit and therefore supplied by a vast criminal network. The criminalisation of drug use adds human suffering to the intrinsic harms of drug use, as competing criminal interests fight among themselves and against law enforcement for control of a staggeringly lucrative market.
- There simply is not another criminal enterprise offering comparable revenue to the illicit drug trade. The current estimate of Australia’s illegal drug market ranges from between $7 and $17 billion per year.
- Unparalleled riches from the illicit drug trade have undermined rule-of-law in less stable countries, creating a haven for all forms of criminal enterprise. Though it will not change overnight, there is no better way to challenge the power of organised crime than the legal regulation of drugs.
- Many other criminal enterprises are funded by the illicit drug trade, or operate through the same networks. They will become much harder to maintain.
- Under legal regulation, enforcement efforts can be channelled toward other forms of crime, further hastening the overall decline.
- It does not follow that when the illicit drug trade ends, there will be an alternative revenue stream that covers the loss to organised crime and continues to power the same level of violence and corruption.
- It is not sound policymaking that there is no point eliminating one type of suffering because another will take its place. The prohibition of drugs is fuelling criminality and massive suffering and therefore, it must end.
- For the reasons outlined above, legal regulation would inflict the worst possible damage to organised crime.
- Although it is a problematic relationship to measure, studies suggest that a significant amount of acquisitive and violent crime is attributable to drug addiction. For example, the Drug Use Monitoring program in Australia found that 25% of recent offenders who reported recently using illicit drugs had committed their offence specifically to fund their habit.
- After Switzerland began prescribing medical heroin to registered dependent users, burglary rates astonishingly fell by half. Legal regulation can reduce crime across the board.
- Some former law enforcement officials have argued that tougher policing, in fact, leads to an escalation of violence, as drug gangs react and adapt to increasing pressure.
- By legalising drugs, we can damage criminal networks, reduce acquisitive and violent crime, and redirect enforcement spending to more useful and practical ends.
- Ultimately, we need sensible policies that reduce the harms done to society – not meaningless posturing and self-defeating moral panic.
The prohibition of drugs is a disaster for public health. It places drug consumers at the mercy of an illegal market whose illegality ensures irresponsible behaviour.
Drugs are provided without even the most basic information and quality assurance, producing additional and increased risks. In the event of adverse health outcomes, users are discouraged from seeking help due to social stigma and the threat of arrest.
- Drugs are dangerous, but our current approach maximises their risk. We need control and oversight to protect users and minimise the harm done to society in general.
- Legal regulation will ensure that users receive the safest possible product, with professional advice and information to guide their behaviour. They will be more aware, not less, of the dangers posed by their choice to take drugs.
- ‘The Iron Law of Prohibition’ dictates that a substance will tend to increase in potency when outlawed, as criminals attempt to evade law enforcement and get the best possible return for their efforts. Examples include alcohol prohibition in the US, which saw whisky and moonshine supersede beer; or the emergence of crack-cocaine in the 1980s; and now the increasing prevalence of fentanyl as an alternative or additive to heroin. This trend is a significant cause of death by overdose and other adverse health outcomes.
- Prohibition encourages drug consumption in unsafe environments and by dangerous means. A good example is intravenous drug use, whose grave risks necessitate sterile equipment and, preferably, medical supervision.
- Taking drugs without knowing their exact contents is highly dangerous, but commonplace in the current environment. As a consequence, when a user does become unwell, medical professionals often have great difficulty treating them because they have no idea what they ingested.
- Further to placing the drug trade outside regulatory oversight, criminalisation creates a pressure-cooker atmosphere that attracts the most unsuitable actors and encourages their worst possible instincts. Users are at the whim and mercy of an erratic, unscrupulous and often violent criminal culture.
- Enforcement budgets drastically reduce the money available for public health spending. In 2016, the Australian government spent $1.1 billion on enforcement, more than double the entire budget for harm reduction, prevention and treatment.
- Users often avoid seeking medical help or advice because of the negative stigma surrounding drugs, not to mention their legitimate fear of arrest.
- There is no evidence for this claim. Laws against driving under the influence of drugs would remain in place and rightly so. The same applies to workplaces.
- Driving under the influence of alcohol is against the law, and public awareness campaigns have drastically reduced this in recent years, without the need for the prohibition of the substance itself.
- It is criminalisation itself that creates the threat, by placing such a lucrative market outside government control and empowering organised crime. More impoverished regions trade many other valuable commodities with nothing approaching this level of dysfunction.
- Enforcement in the face of such robust demand is ineffective and often detrimental, wasting resources and causing further danger to the public.
- Criminal involvement further marginalises populations in urgent need of outside help. Developing economies are trapped between law enforcement and organised crime; their own efforts to develop are liable to be undermined by the widespread violence and dysfunction.
- The longer these trends continue, the harder it will be to reconstruct these regions once the drug war ends.
- We currently have no regulation – any efforts would be a step in the right direction.
- In a post-drug-war world, there will be more scope for international cooperation and oversight, as well as opportunities for countries to manage their own production.
In Australia alone, we spend more than $1 billion per year on drug law enforcement.
Worldwide the figure comes to more than US$100 billion.
The secondary effects of the drug war are difficult to quantify in financial terms, but clearly, the staggering waste of human potential adds an even more significant burden. In purely economic terms, freeing up these resources would allow a greater focus on areas such as education and healthcare, which have proven benefits in mitigating the harms of drug use.
- In other countries where drug use is decriminalised or legalised, drug use has not risen. The cost of the policy is zero as there are immediate savings from a reduction in policing, judiciary hearings, and incarceration of people from drug-related crimes. There will also be an increase in revenue from legalisation, which can be used for improving access to public health programs, addiction services, and education.
- Legalisation would not necessarily increase overall use. The example of Portugal’s decriminalisation in suggests there would be a small increase in some categories and a decrease in others. Problematic use and adverse health outcomes, which cause the most significant financial impact, have decreased considerably since 2001. Likewise, since Switzerland began its heroin-assisted treatment program in the mid-90s, heroin use – as well as heroin-related deaths, crime and social problems – has fallen substantially.
- In addition to savings from discontinued law enforcement, legal regulation would create additional tax revenues likely to dwarf the cost of regulation. For example, following Colorado’s legalisation of Cannabis in 2014, the single county of Pueblo – which has a population of roughly 160,000 – experienced a net revenue increase in 2016 alone of US$35.6 million, projected to rise to more than US$200 million by 2021.
- The revenue generated by legal regulation could be directed toward education, prevention and treatment, further reducing the financial and human cost of drugs to society.
In 2018 a United Nations report finally affirmed support for drug decriminalisation and recommended that drug policy should focus on human rights as the foremost concern. For too long, we have tolerated widespread abuses by law enforcement, owing to policies supposedly designed to protect us.
- There is no conflict between the rights of drug users and other citizens – the choice to take drugs is personal, and need not affect or concern anyone else.
- Human rights are universal; whether or not one is a drug user, abuse of authority harms us all. When governments utilise moral panic and fear about drugs to ride roughshod over rule-of-law and due process, the damage spreads beyond drug users. It emboldens authorities to disregard the rule of law often for their own ends.
- The illicit drug trade has created entire regions effectively governed by organised crime, whose culture of coercion and violence make human rights a distant and unrealistic concern.
- Professor David Nutt, former head of an advisory board to the UK government, memorably wrote that “there is not much difference between horse-riding and ecstasy” in terms of danger. As consenting adults, we retain the right to engage in all sorts of harmful and risky activity without government intrusion – why should drug use be any different? As a society, we can disapprove and discourage without recourse to law.
- The right to take drugs is not explicitly protected but falls under other broadly accepted human rights, such as to privacy, health and freedom of choice and belief.
In Australia, 43% of people report having taken an illicit drug in their lifetime, including many prominent and respected figures. Yet we still allow the ruination of an unlucky few caught by law enforcement.
Even if drug-taking is immoral, does it really need to be considered a crime? There are many activities that some people consider risky, unethical or undesirable, which are not illegal, such as gambling and adultery. While we may disapprove of them, we do not spend billions every year to criminalise them. Additionally, in a pluralistic society, there is no agreement on what constitutes immoral behaviour which is why law enforcement is ineffective in enforcing arbitrary moral dictates.
- Supporting legal regulation has nothing to do with endorsing or encouraging drug use.
- The correct response to drug use is to enact a fair and humane policy that protects the rights and health of all citizens – prohibition has been a total failure in this regard.
- In a liberal, tolerant society, we do not use laws to forbid every immoral activity. Drug-taking is an individual choice that need not interfere with others. The second-order consequences that do affect society as a whole are the result of prohibition itself.
- Prohibition causes many of the injustices and inequities of the drug trade. For example, Tasmania’s poppy farmers currently supply around half of the world’s legal narcotics, without any of the problems associated with the illicit trade. Similar farming and production could provide stable and ethical supply chains to replace the current criminal market.
- Legal, regulated markets can provide transparency and consumer choice to answer ethical concerns about supply chains. Many consumers would prefer an ethical product, but currently, there is no way to receive it.
The main concern of politicians should be to ensure the wellbeing and security of citizens, yet, in supporting prohibition, most have become entrenched in a position that delivers the opposite result. Powerful vested interests in law enforcement, corrections, big parma and business that benefit from the status quo are among the causes of government intransigence. Also, the concentration of media ownership in Australia sensationalises and corrupts the national debate.
Of course, there are good-faith reasons for supporting prohibition, but the mounting evidence increasingly shows politicians out-of-step with reality and public opinion. Notable former law enforcement officials, including former AFP commissioner Mick Palmer, have expressed support for liberal drug law reform. The Australian public now mostly favours decriminalisation of some drugs, which is also the position of the United Nations. Legal regulation is a further step along the way that may seem unlikely at this point, but we believe that it will become the logical end goal of reform.
- Support for the legal regulation of drugs is snowballing in Australia and around the world. This is particularly true for Cannabis: in the US, support for legalisation increased from 24% to 66% between 1988 and 2018.
- Consequently, individual US states and multiple other countries are moving to legalise Cannabis. Their example will demonstrate the policy’s effectiveness and potential for application to other psychoactive substances.
- Sometimes politicians can lead the debate. In Uruguay, President Jose Mujica moved ahead of public opinion to legalise Cannabis. He specifically decried the way that state actors tend to develop a self-interest in continuing even failed policies: "The state has a number of pathologies, and one of them is that whoever is performing a task starts thinking that that task is the centre of the world. Everyone wants to think that their job is socially essential".
- There is a growing wave of former government and law enforcement figures publicly advocating for legalisation. They are not being censured or vilified in the same way they would have only a few years previous. The former Premier of NSW and Foreign Minister the Hon Bob Carr and many former politicians now fully support reform.
- The US has historically been the main force behind the global war on drugs, supporting aggressive enforcement and blocking drug law reforms at the UN. However, due to many US states legalising Cannabis and pursuing a harm reduction strategy in response to the opioid crisis, the US is losing authority and interest. But totalitarian regimes like China and Russia are becoming more active at the UN in blocking reforms. New Zealand who are having a referendum on legalising Cannabis in September 2020 and other countries are showing the world that the prohibition can be challenged by democratic means.
- The United Nations Chief Executive Board recently settled on supporting decriminalisation, suggesting that its international treaties are no longer reflective of any meaningful consensus.
- In any case, many member states have already moved forward with liberal reforms that defy these treaties. Governments bear foremost responsibility to their own citizens, and they will need to respond to the harm caused by prohibition, regardless of the global policy environment.
A persistent argument against ending the war on drugs is that we simply need to fight ‘harder’ or ‘smarter’ to win. Yet the evidence from more than half a century of enforcement shows there is no way to overcome the force of nature that is global demand for drugs.
We continue to invest billions in enforcement efforts that simply exchange one criminal for another, often worsening the harm done to society in the process.
Legal regulation is urgently needed to end this destructive cycle.
- Australian prison populations have been increasing for some time, mainly due to convictions for drug offences. The weight of illegal drug seizures has more than doubled over the last decade. Yet rates of illicit drug consumption and related harms have generally trended upward. At what point do we abandon this faith-based approach to policymaking?
- In the US, we have seen aggressive enforcement and sentencing for nonviolent drug offences contribute significantly to mass incarceration – particularly of African-American males – with no clear evidence of a reduction in drug use or related harms. The US is not an example of a successful war on drugs for Australia to follow.
- Destroying crime syndicates and trade routes increases the price of drugs while failing to address the demand, which simply creates a profit motive for more criminal activity.
- The economics of the war on drugs means it can never be won because the more you succeed in disrupting supply, scarcity results in higher prices, which means bigger profit.
- Arrests and seizures give the impression that something is being done to protect us, yet the harm resulting from drug use continues unabated. We must hold lawmakers to account by ceasing to allow tough posturing and extravagant waste to stand in for rational, humane drug policies.
- While this may be true in many countries, including Australia, enforcement should not be a part of the strategy at all: it is ineffectual. It undermines other measures by wasting precious resources and creating obstacles to people seeking help and information.
- Others are not so fortunate: particularly in poorer countries, enforcement of prohibition is the entire strategy, creating armed conflict and corruption that stands in the way of any meaningful progress.
- This approach tackles only a small part of the problems caused by drugs, leaving in place a global criminal network that causes untold corruption and violence.
- There still would not be any regulatory oversight of the production and supply of illicit drugs, which would continue to threaten public health and security.
- The only guaranteed way to damage suppliers is to destroy their market.
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