Nowadays there is willingness for mainstream media to engage the debate about what should be done with international drug policy. Even the BBC is keen to present a balanced debate, inviting reformed celebrity drug ‘addicts’, self-confessed ‘medical’ users of cannabis and self-professed experts to discuss how prohibition created a paradox of consequences of harms across the globe. From Glasgow estate junkies using heroin contaminated with anthrax, to the killing fields of Mexico’s turf wars over the cocaine trade, it’s now acceptable to argue to de-criminalise, regulate or legalise so-called illicit drugs. I say ‘so-called’ because all these expressions such as ‘War on Drugs’, ‘illegal drugs’ and de-criminalising/regulating drugs are examples of transferred epithets obviously applying to the trade and possession of drugs, that is human action, not drug action. I will say more later on why the de-personalising language of this discourse is problematic; it is significant to point out that the law controls persons with respect to drugs, not drugs with respect to persons. When we think of a war on people, it seems unconscionable to talk about winning it, its unjust and unconscionable; the various punitive policies are arbitrary.
Reform of the war on supposedly illegal objects has become a mantra for many of the great and the good; former UN leaders, former presidents, former ministers and former police officers (it’s nearly always former when it comes to people representing authority speaking out), as well as pop stars, a certain well known industrialist and recognisably sensible people are all prepared to put their names to the latest online petitions and scribe even more grandiose Charters. But this discussion focuses on how to best avoid the negative consequences of prohibition, but is it the way forward? And even when certain drug use is clearly relatively safer than drinking or other leisure activities, with drugs someone will always find some study and say that its worth banning a whole range of substances, this because of the risk that even one young person will otherwise come to grief.
Obviously this principle isn’t being applied to anyone other than drug users, or rather some drug users. Nobody is trying to stop drinking, and nobody suggests we should stop adventure sports, horse riding or even a diet of Big Macs and Coke. It is assumed the drug misuse law in the UK is a health measures Act, yet it is more of a public order Act concerned with social harms. The debate about harms and benefits must be made within the context of what the law actually mandates, we should not be concerned with absolute safety anyway, what we must aspire to is equality of treatment with other drug users – if the government can advise us how much alcohol we should drink, then there is no logical reason for not advising truthfully on cannabis or other drugs.
Yet any social networking media will have scores of drug users and sympathisers reporting desperate stories of woe and mistreatment. In reality the ending of the stigmatization of some drug users, even ‘mere’ cannabis users, seems as far away as ever. There is an omnipresent hostile press linking cannabis use to some terrible outcome, making adverse connections with criminality, irresponsibility and danger. Every month young people are sent to the gallows in Malaysia for a pound of herbal cannabis, many more barbarically flayed with a rotan for personal drug use or minor social supply. Prosecutors and judges all go for broke against the hapless person in the dock as if they are playing some kind of sick sport. In the UK, every day police break into the private homes of peaceful cannabis growers and turn their lives upside down, often then reporting the person to their employer, local councils and housing associations, bringing chaos to previously quiet and stable family lives. And still every very day the courts affirm this, imposing dehumanising punishments, enforcing heavy fines and costs and further demonising folk who just want to relax with their self-medication practices in peace, free from stigmatisation and suspicion.
We might expect lawyers to be concerned about alleged civil liberties violations and disproportionate punishments affecting their clients, but now you will never find one who will fight it on a point of general principle, if they did, they would be mocked even by their peers. If the facts are made out then inevitably the defence counsel’s advice is to plead guilty. Maybe they will tell the court that the defendant is sorry, in pain, naive, but they won’t say something is wrong, and yet it is wrong, patently wrong. Despite the fact that there has been no analysis of numerous complaints about the way the Misuse of Drugs Act is being administered, and no examination of a multitude of human rights concerns by any court, I was personally told by senior judges that if I ever argue for recognition of the human rights of drug using defendants, or complain of misadministration by the government again, that I will be held personally responsible for all the court and prosecution costs. Not even dedicated organisations such as Liberty and Release offer any hope of challenging any of this.
Seemingly the notion of the separation of powers between government and the courts, and the aspiration for evolving recognition of difference and human rights has evaporated. Anyone who has seen a judge in action in a drugs case will tell you, as a user of some drugs you have no rights, no claim to autonomy over your own body, no right to medical use, no claim at all for fairness or equal treatment with even the worst of alcohol abusers, and no parity with tobacco smokers – you are going to be processed, treated like an errant child, criminalised and patronised, so much for the lawyers.
I am concerned that rather than anything about to get better, it is about to get much worse, soon there will be drug testing everywhere. Companies are getting ready to coin in on cheap testing for drugs as done in police stations and prisons, at the roadside, and perhaps in schools, workplaces, hospitals, benefit agencies etc. It’s the secret weapon, not to back down but to step up the anti considerably. Not everyone will be prosecuted, that would be too expensive, but they will be dealt with by other behaviour modifying interventions, information will be passed between busybody judgmental agencies, there will be no privacy over personal body chemistry, the dystopian world of body surveillance is coming, it may be punishment light, but its insidious tentacles will reach much further.
But why is there only the focus on the dour issue of harm prevention? If you go through the hundreds of submissions to the Home Affairs Committee drug inquiry you will read hundreds of copycat submissions about the paradox of consequences of prohibition, but the key point is missing, always missing. The key point with the intimate relationship with drugs is the human being, it is as important as defining what it means to be human today. What right do you have to access the mind states drugs enable? What choice do you have over your own body chemistry and your own consciousness? Nobody is asking because these issues are not seen in terms of liberty in the slightest. Via objectification, the whole human rights discourse and libertarian considerations are obscured. Many consider that this is a war upon our possibilities to benefit from open objective research into remarkable molecules. Civilisation mandates that we have inalienable rights as human beings, rights to know what is. We think, we are conscious, we are chemical – controlling body chemistry is something that should be done with anxious concern for the limitations we impose on the experience of being. Why is personal chemistry any business of the state whilst persons experiment peacefully and do not endanger others?
Every debate is about some people begging for their physical need for a drug, or how it will do more harm than good by trying to stop them. Some people are now presented as more worthy than others, liberty is off the table; mercy for victims is the currency of negotiation. We must be aware of creating new divisions where we need a broad base of support and recognition of freedoms. Cognitive liberty unites, it is a true right, entitlements for the needy are divisive, of course people should have access if they need it, but liberty is not a finite resource, we do not need to overly ration, it except with reference to actual harms caused by the irresponsible misuse of some drugs.
Whenever we make the case for special cases we necessarily create new lines in the sand, new rules that we actually don’t need or want. What needs to be identified is the essential quality of liberty that applies to all, it is a demand for a right for privacy or non-intervention until for whatever reason, we would sensibly agree that intervention by police, or by doctors, social workers or whoever is justified. When would it be justified? When the people concerned are causing real harms through their drug use, not harms caused by policy (e.g. being involved with a criminal enterprise) as those follow as a paradox of consequences of poor regulation (or lack of it). It’s better to think of the law as a tool that is properly construed to regulate people with respect to drugs, not something that regulates drugs at all. We can address the problem people driving whilst impaired whilst respecting people’s rights to use drugs just as we do with alcohol for example. It should depend on outcomes and rationally assessed risks; not blanket rules based upon the myth that a substance is lawful or unlawful. The result is that concurrent over and under regulation of drug users thwarts the proper application of the law.
If the law was administered rationally and according to purpose there would be a rush to address the deluge of health and social harms caused through alcohol / tobacco misuse. Surely it is the skewed market that encourages misuse of what are the only lawfully available drugs in town. Yet we all know that for some dubious reason the persons concerned with dealing some dangerous drugs have been given a privileged drug dealing status, it’s not written in the law, it’s just a very curious, unequal and harmful policy governments adopt.
The problem stems from this contemporary illusion that drugs are legal or illegal, it’s not actually right, it’s the person who acts unlawfully by being in possession, or cultivating or supplying the so-called ‘controlled drug’ for example. Anti-social activities associated with so-called legal drugs are not supposed to exempt from the drug misuse law, the law is meant to be outcome-based and neutral. All these activities with all drugs can be regulated to address antisocial forms of conduct, but as soon as we imagine that the drug is illegal in and of itself, then that becomes impossible, as it is, supposedly, indivisibly illegal no matter what. This is one of the things that went wrong with drug policy, it works in an on/off fashion – no in betweens, no differentiation between peaceful use and misuse, this because we let the government get away with the absurdity that cannabis or indeed any drug is or ever could be illegal. It is not, it cannot be, it is we who are acting illegally with it. There is a difference, this criminalisation of all activities with some drugs is a policy choice, a bizarre policy that makes us unlawful no matter what outcome there is; and this is inconsistent with the purpose of the law – it is the fiction that leads to the dismissal of all human rights claims. We have no human rights because we imagine that the subject of regulation is an object, when in fact, it is us.
We must start from the premise that as adults we should enjoy some basic peaceful rights. What we must rescue is the notion of a sensible level of autonomy for persons acting peacefully until a threshold is crossed justifying intervention. This is never specific to an object or specific drug. It is not ‘it’ that is capable of being legalized or de-criminalised, it is us. We want to be freed with respect to it, not it with respect to us.
Let’s be clear there is no war on drugs, no illicit drugs and no illegal drugs either! Desist from using these terms because they are fictions created by the prohibitionist paradigm as forms of deception about the true nature of control. We might contemplate a ‘war’ targeting the worst outcomes of drug misuse, and develop best policies concerning harm reduction and prevention. Yet we ended up in this mess by failing to differentiate between good, acceptable and bad outcomes for some drug users. In the resultant artificial divide between persons using different drugs we have created a prohibitionist mandate that completely fails to control any form of drug misuse.
Darryl Bickler is a co-founder of the Drug Equality Alliance and a solicitor formerly practicing in criminal law and human rights.
