Decriminalizing Drugs I-IV











Decriminalizing Drugs

A four part editorial from the Ottawa Citizen

The Ottawa Citizen, one of the largest circulation papers in Canada, and the
main newspaper in Canada’s capital, published a series of four editorials
(April 12-16, 1997) strongly criticizing the criminal prohibition of drugs.
The editorials call for alternative measures to deal with drugs in society.

Letters to the editor may be sent by e-mail to The Ottawa Citizen (the
e-mail address is:
[email protected]. Readers may instead fax their letters to
(613) 596-8458. In both cases, the
letter must include the full name of the writer, the writer’s address and a
phone number, to allow
verification of the letter.

The Ottawa Citizen also ran a fairly long piece on the decriminalization of
marijuana (High Time to Stop the War on Marijuana) by Alan Young, the lawyer who is defending Chris Clay.

DECRIMINALIZING DRUGS I
DECRIMINALIZING DRUGS II
DECRIMINALIZING DRUGS III
DECRIMINALIZING DRUGS IV


DECRIMINALIZING DRUGS I

Editorial, The Ottawa Citizen, Saturday, April 12, 1997

3 (1) Except as authorized by this Act or regulations, no person shall have alcohol in his possession. Alcohol Control Act, 1999

Possession of alcohol is not criminal under Canada s drug laws. Were any political party to suggest that alcohol be criminalized, the sound of laughter and ice rattling in scotch glasses would be heard from Lunenberg to Chilliwack.

The long, dry years of Prohibition, particularly in its ambitious American version, taught some very profound lessons about what happens when governments use criminal law to try to address the real harms done by a drug:

  • Prohibition had little or no effect on the consumption of alcohol. Elliot Ness may have inspired great television but neither he nor any number of his colleagues came close to finally corking the bottle in an era which is most famous for its jazz, gin joints, and speakeasies.

  • Prohibition put a lucrative trade entirely into the hands of organized criminals (and Canadian exporters). The crime spree spawned by alcohol’s criminal status contributed to an American homicide rate that rose throughout Prohibition, to a 1933 peak of 9.7 murders per 100,000 people, higher even than the murder rate in the 1980s. And all the while, the thugs got rich.

  • The impossibility of stemming the flow of booze led to ever more drastic policing, which undermined civil liberties. It has been estimated that upward of a thousand people were killed by American prohibition-enforcement agents. The first-ever laws making mere membership in a group illegal — a gross violation of the freedom of association — were American laws aimed at booze- running gangs.

  • Perhaps most insidiously, criminalization implied that free human beings were not capable of making their own decisions about what they should ingest into their own bodies. Prohibition was an awful precedent: Citizens were infants, government the scolding parent.

The hard experience garnered in several decades of fighting alcohol with the criminal law has taught that prohibition of alcohol is folly. In fact, this is now the conventional wisdom. As a result, there will be no Alcohol Control Act of 1999.

Our society has had equally hard experience with its legal prohibition of the other drugs on society s list of the forbidden. Yet there is a Narcotic Control Act that still criminalizes certain of these drugs, many of which are little different in their physiological effects than alcohol. For some reason, most Canadians, and almost every Canadian politician, refuse to see that every lesson learned about alcohol prohibition is also a lesson about drug prohibition.

The legal status of drugs has no substantial effect on drug consumption.

Marijuana was virtually unknown as a drug in Canada when it was banned in 1923. The first confirmed instance of its illicit use did not occur until 1931. Despite official vigilance, marijuana arrests in Canada remained extremely rare until the early 1960s, when changes in social values brought a massive increase in marijuana use — against which the criminal law had essentially no effect.

Experience with harder drugs similarly shows no correlation between criminal sanction and use. In 1906, cocaine was inexpensive, legal, and fashionable in the United States. By 1980, it was only fashionable. Yet the rate of consumption in 1980 was twice that in 1906. After Ronald and Nancy Reagan’s “War on Drugs” poured billions of dollars into armed interdiction and enforcement the wholesale price of cocaine dropped by 60 per cent.

Every year, enforcers seize about one-third of the cocaine produced worldwide. Yet the Rand Corporation estimates that cocaine supply in the U.S. continues to outpace demand by 60 to 100 tons. In 1992 and 1993, at the height of military interdiction efforts and with the U.S. government spending $12 billion a year fighting drugs, there was a cocaine glut on American streets.

Even where the law does drive up prices, it still seems to have little effect on consumption. In the decade following the 1982 launch of the war on drugs, marijuana prices in the United States shot up over 400 per cent. In 1982, the number of high school seniors who said it was “easy” or “very easy” to get marijuana was 88.5 per cent; in 1994, it was 85.5 per cent.

Since Bill Clinton took office in 1993, the number of Americans arrested for marijuana offences has increased by 43 per cent, and increasingly those arrested are subjected to such measures as life sentences for growing a single plant. But teenage use of marijuana has grown throughout the 1990s.

Legalization also seems to have little effect on drug use. Ten American states have legalized possession of small amounts of marijuana for personal use with no apparent increase in consumption resulting. Holland legalized marijuana de facto in 1976 and teenage marijuana use subsequently dropped by 40 per cent. The rate of teenage marijuana use in Holland and Spain, where cannabis is also de-criminalized, is only two-thirds that in Britain, which enforces its anti-marijuana laws strenuously.

Criminalization unnecessarily puts a lucrative trade in the hands of organized crime.

The drug profits of organized crime measure in the billions of dollars each year. (Between $5 and $11 billion is spent on illicit drugs each year in the United States alone.) The thugs, organized and otherwise, who struggle for shares of this wealth are responsible for what is wrongly called “drug crime.” The result: in the U.S. in 1993 alone, 1,280 murders stemmed exclusively from the drug trade. A 1988 study found that among murder cases in the 18 most populous counties in the U.S., circumstances involving the illegal drug trade, such as disputes over drugs, accounted for 18 per cent of all defendants and 16 per cent of all victims.

Though these sorts of statistics are normally used to support the criminalization of drugs, it is not the drugs that cause the crime, but their criminal status. One study of cocaine-related New York City homicides found that 87 per cent were related to territorial disputes, debt collection, or other business aspect; only 7.5 per cent were found to have been caused by the pharmacological effects of the drug itself. But the two types of drugs most likely to be associated with violent, aggressive behaviour — alcohol and secobarbital — are both currently legal.

No form of trade is the natural province of criminals: it only becomes their exclusive domain when the law makes that trade illegal. The end of American alcohol prohibition in 1933 was also, not co-incidentally, the end of most bootlegger violence. Al Capone and the mob were replaced by today s distillers and brewers, corporate citizens no more dangerous than McDonald’s or General Electric. The legalization of other drugs would take a multi-billion dollar trade out of the hands of criminals and quell the violence they cause.

Too often, our political culture equates legalizing drugs with being soft on criminals. But it is criminalization, not legalization, that guarantees wealth and power for gangs and pushers. We will argue Monday that it need not be this way.



DECRIMINALIZING DRUGS II

Editorial, TheOttawa Citizen, Monday, April 14, 1997

On Saturday we focussed on two practical arguments for decriminalizing drugs: First, a drugs legal status seems to have little or no effect on its consumption. Second, criminalization unnecessarily puts a lucrative trade in the hands of organized crime.

Decades of regulatory failure should have re-directed our minds toward a fundamental re-evaluation of how we deal with drugs. But they have not. Instead, the continuing failure of the “war on drugs” and of its attendant arsenal of regulations, powers, police, soldiers, and prisons has led to more regulations, powers, police, soldiers, and prisons.

The impossibility of eradicating drug use has also led to ever more drastic measures that corrode civil liberties. In Canada, the failure of drug enforcement has regularly spawned police measures and powers that simply would not be tolerated in other areas of the criminal law. One of the earliest abuses was the “writ of assistance”, introduced in 1929. These writs were issued to particular law enforcement officers who would then have carte blanche to conduct searches of any property or person, at any time, without a warrant. By 1977 over 240 writs were still in existence. In 1985, the Supreme Court of Canada finally struck them down as a violation of the Charter of Rights and Freedoms.

Three years later, however, Parliament passed a law that made it illegal to advocate or even make favourable comments about drug use. In 1994, this shameful law, which had no parallel in the Western world, was struck down by the courts as a gross violation of free expression.

In other areas, Canadian courts have permitted the war on drugs to serve as a justification for the country s police forces to assume extraordinary and unconscionable powers. The common law requires that police officers, when enforcing a search warrant, first knock and announce their presence before entering — a minor limitation that takes just a few seconds. The Ontario Court of Appeal ruled, however, that when searching for narcotics, the police could ignore this requirement and simply smash in the door, since the “knock and announce” delay might allow suspects to destroy any drugs they might possess. Thought the time between knocking and apprehension is often quite short, one of the most ancient principles of the common law was nevertheless diminished in order to prosecute the possible perpetrators of what is, after all, a non-violent crime.

When drugs are involved Canadian courts also often abandon their customary and commendable caution in accepting anonymous tips as the basis for search warrants. Courts have even authorized the officers who conduct drug searches to choke suspects trying to swallow tiny amounts of drugs.

In the United States, which otherwise protects civil liberties zealously, the continuing failure of the war on drugs has led many American jurisdictions to truly draconian enforcement measures. Congress created a system of fines of up to $10,000 that can be imposed administratively when prosecutors feel they cannot get enough evidence for a criminal conviction.

Property can be seized without the owner even being charged with a crime so long as evidence of drug use is found on the property. To have the property returned, the owner must incur the cost and hardship of court proceedings and in effect prove his innocence. Police departments, who sometimes have the value of seized assets added directly to their budgets, have been accused of targeting property for seizure with little concern for actual proof of drug use.

Even when drug use is proved, the property seized is often out of all proportion to the alleged crimes. For instance, a Vermont man was given a suspended sentence by the state court for growing six marijuana plants but, under U.S. federal law, his family lost their 49-acre farm. At least he can be grateful he was charged in Vermont: Fifteen states have life sentences for many non-violent marijuana crimes. And if the amount of marijuana he had grown were larger, federal law would have allowed the death penalty, even for a first offence.

As we argued on Saturday, even extreme measures such as these have failed to halt or even substantially slow the flow of drugs. But they certainly have succeeded in diverting police resources away from the attack on violent crime.

Canadian taxpayers spent an estimated $400 million on drug enforcement in 1992 alone. Even if just half that were spent on police, at an average salary of $52,000 per year, 3,846 additional peace officers could have been hired.

As is their wont, the Americans have gone much farther than we have. The annual combined federal and state budget for drug interdiction and enforcement in the United States is about $30 billion. An estimated 400,000 police officers are involved in drug enforcement, with 18,000 devoted exclusively to anti-drug units. Over-crowded American prisons have even, on occasion, given early release to murderers and rapists in order to make room for newly-convicted pot smokers subject to mandatory minimum sentences.

The recent history of drug enforcement, both in Canada and the United States, is largely a record of failure. Tax dollars are lavished on enforcement. Police powers are expanded at the expense of civil liberties. Criminal gangs grow richer. And drug use goes on regardless.

But the failure is even deeper. Tomorrow we examine how the criminalization of drugs offends the very premise that underlies liberal democracy.



DECRIMINALIZING DRUGS III


Editorial, The Ottawa Citizen, Tuesday, April 15, 1997

In our Saturday and Monday editorials we made three main arguments in favour of drug decriminalization: that the legal status of drugs has little apparent effect on drug consumption; that criminalization unnecessarily puts a lucrative trade in the hands of organized crime; and that the impossibility of stopping drug use leads to ever more drastic measures that corrode civil liberties.

But practical concerns alone cannot settle an issue as complex as drug use. It also involves important philosophical considerations. Criminalizing drugs may or may not “work,” but is it morally justified?

In his 1859 work On Liberty, John Stuart Mill made the classic statement of the liberal outlook on such matters: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

Modern democratic states, including Canada, are largely constructed on Mill’s conceptual foundation. The liberal state was the first to recognize that its citizens are not children who need governors to pull their hands away from hot stoves. The material and spiritual benefits of that realization are legion.

Of course, legal systems are not philosophical treatises and the liberal axiom is often violated by Canadian law, usually in small, thoughtless ways. But the influence of Mill’s principle can still be seen clearly, if mainly implicitly, in our criminal code. Suicide is not illegal. Nor is body- piercing, nor gluttony, nor sloth, nor a thousand other activities that harm only the person who indulges in them.

But the consumption of many drugs, even by adults, is illegal. As a result, although the criminal law permits Canadians to close the garage door and fill their lungs with carbon monoxide for the purpose of inducing death, they may not fill those very same lungs with marijuana smoke for the purpose of inducing pleasure. Dickens Mr. Bumble was wrong: The law generally is not “a ass”. But the logic of this contradiction in Canadian law escapes us: you may do ultimate harm to yourself, but not the minor harm (if minor harm there is) in smoking marijuana. By contrast, the logic of the liberal principle is inescapable — drugs should be legalized.

Many who accept the wisdom of Mill’s principle nevertheless are uncomfortable with its logical implications. In spite of what their reason tells them, they want to keep drugs illegal. Or they desperately want to censor pornography. Or imprison homosexuals. Or ban home schooling. And so they twist the notion of “harm.”

Mill and the great liberal thinkers who shaped modern society understood harm in narrow, commonsensical terms: Jones bops Smith on the nose, or sets fire to his barn. If the definition of harm is expanded beyond this, however, then drug users, pornographers, homosexuals or others who reside on someone or other s list of undesirables could be hit with violations of the criminal law without such persecution seeming to be in any way illiberal.

In fact, in a growing number of universities, law faculties, courts, and ministries, the liberal principle is being turned entirely on its head simply by redefining “harm.” Feelings of humiliation or the creation of a “hostile environment” are deemed to be harms on a moral par with physical force. With such a broad definition of harm, all that is needed to justify bans or proscriptions on various kinds of behaviour is a finely honed sense of grievance and a sophisticated vocabulary.

Similarly, it is often argued that whether to use drugs should not be an individual s choice alone because it may do harm to others. There is no doubt that harm the drug user does to himself may cause distress and anguish among family members. He may become addicted and social bonds may be strained as he degenerates. And so, this thought has it, society is justified in banning drugs to prevent this “harm to others.”

But people constantly engage in any number of activities that, like drug use, physically endanger only themselves but risk inflicting emotional trauma on others should something go wrong: scuba diving, skiing, driving Highway 401. Others may be traumatized when sons marry outside the family religion, daughters form sexual relationships with other women, or parents divorce. With harm stretched beyond its original, liberal meaning, almost any activity that attracted a vociferous lobby group and applause-seeking politicians could be outlawed. If we are to have a free society in any meaningful sense, J.S. Mill’s great liberal maxim must be re-invigorated, but with the original, narrow definition of harm intact. And Canada, secure in the knowledge of what is right in a free society, should allow its citizens to make their own decisions about whether or not to use drugs.



DECRIMINALIZING DRUGS IV


Editorial, The Ottawa Citizen, Wednesday, April 16, 1997

In the first three editorials of this series, we argued that:

  • The legal status of drugs has no substantial effect on drug consumption.

  • Criminalization unnecessarily puts a lucrative trade in the hands of organized crime.

  • The impossibility of stopping drug use leads to drastic measures that corrode civil liberties.

  • The essence of freedom is the right to choose what to do with one s body, including choosing to ingest drugs.

For all these reasons, we support the decriminalization of drugs.

Taken to its limit, our way of thinking would remove virtually all constraints on adults ability to ingest what they will. Adult should be emphasized, of course. None of the concerns that lead us to support legalization need permit minors to use drugs. In a free society, paternalism for adults is offensive and unnecessary but paternalism for children is perfectly appropriate.

In contemporary Canadian society, however, the extreme libertarian position, whatever its merits in logic, is simply not on in the near future. (Though we have been thinking about drugs we have not actually been smoking them.) We therefore propose an incremental approach to decriminalization.

The first step would be the legalization of marijuana. For over a century, one commission after another has found that marijuana is no more harmful than alcohol or tobacco and may be much less so, given that marijuana-induced death is virtually non-existent, whereas in 1992 alcohol was at least implicated in 6,701 deaths and tobacco in another 33,498 deaths. Many such commissions have taken the next logical step of recommending legalization, most notably the 1972 LeDain Commission. In fact, in the 1977 throne speech Pierre Trudeau s government promised to legalize possession. Recently several senators braved the tough on crime mood to publicly support legalization. It is important to realize that marijuana would not be the first drug to undergo legalization. Alcohol has that distinction, and the framework that governs that drug’s legal existence could provide a model for marijuana regulation.

Though we favour less government control of the alcohol trade, to allay public concerns about a future marijuana trade, producers could be licensed and taxed and sales permitted only through licensed establishments and government control boards — though if things went well, we would then begin militating for the privatization of both alcohol and marijuana sales.

As already noted, those under 18 years of age would not be permitted to buy marijuana. Products would be labelled so consumers would know precisely what they were buying. And government inspectors would test to ensure the consumer was not receiving contaminated goods. Canadians would have an orderly marijuana sales and regulatory system mirroring that for alcohol. It would be safe, efficient, free of criminal violence — and eventually, we hope, subject to privatization.

Would legalization cause a sudden jump in consumption, particularly by minors? Would the use of harder drugs increase? Would crime inspired by the marijuana trade swell? Almost a century’s experience with drug regulation in jurisdictions around the world suggests these indicators would either be unaffected or dramatically improve, but if this were not the case we would have ample opportunity to decide whether any changes in consumption should override personal freedom.

A next obvious step, five or 10 years down the road, would be the legalized possession of other currently illicit drugs. Again, we expect this would not lead to a great rise in consumption. And it would provide an appropriate background for helping those truly hurt by drug abuse: addicts.

There is no doubt that the use of many drugs — legal and illegal alike — can escalate into full addiction and the suffering that entails. A society that legalizes drugs will escape the many miseries that criminalization imposes, but it must find effective ways to deal with the damage drugs can do.

In fact, the number of people who use illicit drugs and slide into the abyss of destructive addiction is a small fraction of those who have used illicit drugs at one time or another. A typical study of cocaine use in Ontario, for example, found that 95 per cent of users used it less than once a month. The best way to fight addiction is not by prohibition but by helping those relatively few individuals who suffer destructive addiction.

This is the principle of harm reduction, the philosophy which guides most work in the field of illicit drug addiction. Harm reduction programs treat addicts not as criminals, but as dignified, if troubled, individuals. These programs have successfully brought addicts into treatment while reducing the peripheral social effects associated with addiction. Legalization of drug possession, although not a prerequisite for harm reduction programs, would greatly help this work by removing the threat of criminal sanction that currently hangs over addicts.

The history of drug use confirms that we will never live in a drug-free society: Too many people inevitably just say yes. But we can have a society in which the worst effects of drug addiction are minimized, and those who are addicted are helped. We can have a society where mafia and biker gangs are not made rich and powerful by the ban on drugs.

Most importantly, we can have a society where the criminal law reflects not expediency and prejudice but principle. We can work toward a society clearly and consistently founded on the great liberal maxim of John Stuart Mill, that: “The individual is not accountable to society for his actions, insofar as these concern the interests of no person but himself.”

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