Submission to the Australian Drug Strategy 2009

Submission to the Australian Drug Strategy 2009

By Rhys Jones

Introduction

The Australian Drug Strategy 2009 Consultation Paper states that the Australian Drug Strategy has three main pillars. These being supply reduction (through prohibition), demand reduction (through prohibition, education etc) and harm reduction (through education and rehabilitation). This being the case, the cornerstone of the Drug Strategy for all drugs other than tobacco and alcohol, is clearly prohibition. The consultation paper then goes on to make the claim that its core principles are based on research evidence. Given that the object of the Drug Strategy is to reduce the harms from drug use in Australia, it must then follow that prohibition is the most effective tool in achieving this aim.

I would contend that this is not the case, and that in fact, prohibition may be more harmful than the drug use it is designed to reduce. In addition I would contend that the research does not support the proposition that prohibition reduces drug use in the community.

If Australia does indeed pride itself on having an effective, research based approach to drug use and harms, then it needs to examine the effectiveness of this prohibition based approach, which seems to go relatively unquestioned. As such I will outline some of the harms associated with prohibition, and then briefly look at some of the evidence which suggests that prohibition is not the effective tool in reducing drug use that it is often assumed to be.

Problems with prohibition-based response

The harms of criminal sanctions

Whilst the punishments dished out for conviction of drug possession or even small scale supply are rarely harsh in Australia, the effect of the criminal record resulting from such a conviction can have a devastating impact on the person's life. One must declare their criminal record for almost any job they apply for and this is likely to be a serious impediment to a decent job. Many professional organisations will not admit people with drug convictions, and people may be prevented from travelling to certain countries. While 40% of Australians admit to use of an illicit drug, only a small portion are caught and convicted.[1] But for those that are, the consequences can be devastating.

Whilst Barack Obama and his predecessor George Bush both admit to recreational drug use, neither of them could have become the President of the USA if they had been caught. Likewise our recent leader of the opposition, Malcolm Turnbull, admits to use of cannabis as a university student. Whilst his drug use certainly didn't prevent him from leading a decent life and having an extraordinarily successful career, a drug conviction almost certainly would have done. Many prominent Australians have used illicit drugs at one time or another. How many other Australians have had their prospects of being productive or even extraordinary members of our society thwarted by a drug conviction?

This is far from a small problem. According to the Australian Crime Commission[2], there were 56,862 arrests for cannabis alone in Australia in 2006-07. Of these arrests 48,384 or 85% were for possession alone. This is an awful lot of Australians whose lives have potentially been damaged, not by the drug they consumed, but by way of a criminal record. Its all very well talking “tough on drugs”, but these policies and laws have a real effect on individuals, destroying careers and preventing people from achieving their potential in life.

We should be asking ourselves, what would cause us more concern? Finding out that our son or daughter had smoked cannabis, or that they had been arrested for possession of cannabis. In addition, the Household Survey points out that indigenous Australians are approximately twice as likely as other Australians to use illicit drugs. Therefore the consequences of criminal sanctions will fall disproportionately on them. Indigenous Australians are the most marginalised group in Australian society, being grossly overrepresented in the criminal justice system and having poorer outcomes as far as employment and education are concerned. Criminal sanctions for drug use only exacerbate the problems they are facing already.

Alienation of certain sectors of the population from the law, police, government and other authorities.

Surely in any society it is desirable that all decent people view the police as being on their side. Currently we have a situation where otherwise law abiding citizens, who happen to use drugs, view the police as the enemy. This is likely to result in them having less respect for the law and for law enforcement in general. This is not good for society.

It is very difficult for the user or seller of an illicit drug to see that what they are doing is wrong. Most people feel intuitively that in a free and democratic society that respects the rights of individuals, people should have the right to make their own decisions about what they ingest, and should not face criminal sanctions for ingesting something that is potentially harmful only to themselves. Likewise, the drug dealer is merely fulfilling the same role as the liquor merchant or tobacconist in society; supplying a potentially dangerous product that people want to buy. As much as they may be labelled “pushers” in the press, the reality is that drug users seek out drug dealers in order to purchase their drug of choice. Far from seeing themselves as harming the customer, the dealer is likely to perceive themselves as providing a valuable service to their clientele. Likewise, the user, far from seeing themselves as the victim of a drug dealer, see themselves merely as a customer, and the dealer as providing a valuable service.

When the drug user or dealer sees themselves singled out for criminal sanctions from amongst the innumerable other Australians who sell potentially harmful goods and services, (publicans, tobacconists, motorcycle dealers, boat builders, fast food vendors, horse riding academies etc.), they feel that the law is simply wrong. When people lose their faith in the law being right, they lose their faith in those who are enforcing the law, and in authority in general.

Benefits to organised crime

When law abiding citizens are prevented from selling something that there is a demand for, then criminal organisations will step in to fill the void. Just as the unintended consequences of alcohol prohibition in the USA in the 1920's was the rise of mobsters such as Al Capone and the Mafia, so is the case with drug prohibition in Australia. As long as there is demand for drugs and prohibition is in force, there will be a lucrative niche for organised crime to thrive in Australia.

The market for cannabis in Australia is estimated to be larger than our legal wine market. This is an awful lot of money lining the pockets of criminals. This money will also be used to line the pockets of corrupt police and politicians so as the criminals may continue to operate with relative impunity. The group most likely to suffer from an end to prohibition is organised crime.

Violence associated with the black market

In any black market, people are not able to enforce their contracts through the courts. This leads them to the alternative of enforcing them through violence. This is not a result of drugs per se. The alcohol and tobacco industry do not enforce their contracts violently, as they have access to the courts. In the absence of prohibition, the violence associated with illegal drug dealing would disappear.

Harms associated with a lack of regulation.

We know that people continue to use drugs whether they are illegal or not. However, in a legal market, it is possible to enforce certain safety and health standards in the manufacturing process. This is impossible in a black market. Growers of marijuana are able to spray their crops with all manner of toxic chemicals to deal with pest and fungal infestations. Manufacturers of ecstasy and other pills will make these with whatever substances they have at hand, and no-one is checking to see whether these are safe or not. Injectable and snortable drugs are “cut” with all manner of substances to increase the profit to the dealer, and these substances can be far more detrimental to the user than the drug they actually wish to purchase.

No other sector of society is put at such risk by a lack of quality control. Generally we expect the government to monitor and ensure that goods for sale in Australia are of a decent quality, even where where those goods (such as high speed motorcycles, tobacco or alcohol) are inherently dangerous. Prohibition makes this impossible.

In the case of heroin, most overdose deaths are due to the unpredictable potency of the drug. Prohibition makes drug use far more dangerous to the user than it would otherwise be. In a regulated market, these problems could be easily addressed. If we really are interested in harm reduction, then addressing the harms associated with poor quality goods would be a great place to start.

It is also impossible for the government to monitor who is purchasing these drugs. If we want to keep drugs out of the hands of children, then the best way to achieve this is through regulation. Sellers of alcohol and tobacco will generally avoid selling their product to under-age children. This is due to the hefty fines and likely loss of their licence to sell their product. The same cannot be said for dealers of illicit drugs, who already acting beyond the law, have little incentive to ask their customers for identification.

A terrible tragedy occurred in Western Australia in January 2009 when a young woman, Gemma Toms attended the Big Day Out concert. [3]. She was in possession of three ecstasy tablets. When she arrived at the concert she discovered that police were searching the people attending with sniffer dogs. She panicked and consumed all three tablets at once. This led to her death later in the day.

Clearly the police actions in this case did not reduce the harm suffered by Gemma Toms. It seems highly unlikely that Gemma Toms would have made such a reckless decision that day in the absence of a prohibition policy.

It seems highly likely that young people attending concerts where they know there will be sniffer dogs will be likely to consume their drugs prior to attending. They may well do so at dangerous levels as they know they will not have the opportunity of “topping up” later in the day.

Crime associated with addiction

The price of drugs is artificially inflated due to prohibition. Restrictions on supply when associated with static demand create ever increasing prices. Whereas in a free market, a heroin addict may be able to afford to service their addiction for a few dollars a day, in the black market they may require hundreds of dollars a day to service it.

Whilst the vast majority of drug users do not have a problem with addiction, those that do, particularly opiate users, often find themselves caught up in a life of crime in order to meet the financial needs of their addiction. This crime can be in the form of muggings, burglaries, and other stealing. These sorts of crimes have an enormously detrimental effect on the victims, making them afraid for their personal safety and property. In addition there is the monetary cost of this type of crime, in losses to individuals and insurance companies. The cost of investigating, prosecuting and then punishing these crimes also fall to the taxpayer.

In addition to property crime, many addicts are forced to prostitute themselves, as this is one of the few ways they can earn enough money without stealing, to feed their addiction. It is detrimental enough to the individual to suffer from addiction problems, without the added degradation and risk of prostituting oneself.

Whilst there are many alcoholics in Australia, they do not find themselves in the position of having to steal or engage in prostitution to service their addiction. While their addiction remains highly detrimental to their own health, it does not have nearly the same detrimental effect on the rest of society that addiction to an illicit drug can have. This is purely the result of prohibition. In the absence of prohibition, acquisitive crime would likely be much reduced, and the need for the addict to prostitute themselves would all but disappear. The saving to the community in the reduction in insurance and law enforcement costs could be much better used to improve the lives of ordinary Australians.

Prohibition makes no sense in the wider context of society's attitude to risk taking behaviour

People can climb mountains, drive racing cars, ride motorcycles and go rock fishing, all of which carry a significant risk of death or serious injury. While some activities are regulated to reduce the risk, none of them are illegal. While some of these risky activities could be argued to have an overall beneficial effect on society, many do not. The benefit is purely in the pleasure derived from the activity by the participant. There is no real benefit to society in allowing its members to ride horses (an activity that carries with it very high risks of serious injury or even death), but the thought that such an activity could be banned with participants eligible for serious criminal sanctions, would be abhorrent to most Australians who value the freedom to make their own choices when it comes to accepting or avoiding risk.

When a young person sees a man driving a high powered motorcycle around a track at tremendous speed, risking his very life in doing so and being held up as a role model, he could be excused for thinking that society has something against young people, when he faces arrest for taking the very minor risk of smoking a joint.

We see the freedom to make our own choices in matters which affect only ourselves, as a good in itself. As a society we hope that our citizens will make good choices. However, we also accept that to have genuine freedom, a person also needs to have the right to make a bad choice as well. To be otherwise would mean we have no freedom.

In Australia we have an absolute right to determine what health care we will submit to, even if our choice means certain death. It is even legal for a person to intentionally kill themselves. We hope that people don't kill themselves, but we would not make them a criminal for attempting to do so. In this wider context of personal autonomy, prohibition makes no sense what-so-ever and is an absolute anomaly in our society. When viewed in the context of our societies wider attitude to risk and personal responsibility, it is little wonder that prohibition has been an ineffective tool in decreasing drug use and harm in Australia.

Financial Costs of Prohibition

The financial costs of prohibition include the costs of policing, the judicial system and the imprisonment of offenders. It also includes the extra costs associated with health care for those who are damaged due to poor quality product.

Given that the vast majority of law enforcement costs are due to the enforcement of drug laws or due to acquisitive crime, we could assume that these costs would all but disappear in the absence of prohibition.

Other costs that must be considered are the costs to the family when a member of the family is imprisoned for a drug offence, or simply unable to gain employment due to a drug related criminal record. These place a further burden on society of looking after those who otherwise would be perfectly capable of looking after themselves.

Another financial cost is in terms of lost potential tax revenue. Although both alcohol and tobacco cost the taxpayer significant amounts of money, the sale of these goods generate sizeable tax income through excise. If currently illegal drugs were regulated and taxed in the same manner, this money could be used to offset some of the harms caused by use of these drugs.

Benefits of prohibition

Given these numerous and serious consequences of prohibition, and their tendency to undermine the stated policy of “harm minimisation”. There must be a powerful beneficial effect from prohibition if it is to be justified.

Fortunately, there are some jurisdictions in the world that have considerably eased, or even decriminalised possession of some or all illicit drugs. We are now able to look at the effect of this process of prohibition and determine whether it has had a detrimental effect on the populations of those countries.

In order to justify its detrimental effects, prohibition must have a powerful effect in reducing overall drug use.

Does Prohibition Reduce the Use of Drugs?

The proponents of prohibition frequently make the claim that prohibition reduces the demand and supply of drugs. Unfortunately there is little evidence to support this assertion. When the demand for a product remains constant and supply is reduced (through interdiction), the laws of economics demand that the price rises. This in turn increases the motivation of people to supply the product.