What does "legalising" a drug imply, asks FRED FASTIER, former professor of
pharmacology at the University of Otago. So long as it harms no-one else,
drug use should lie outside the domain of criminal law.

LEGAL PROHIBITION OF DRUG USE 'COSTLY, INEFFECTIVE'

MANY READERS of the Otago Daily Times would have been surprised, if not
shocked, by the views on drug policy quoted in a recent article by your
regular World View columnist, Gwynne Dyer.

Do they not express a defeatist attitude? Not in my opinion. The United
States of America and its allies eventually won the Cold War through
playing to their strength. They would have done so all the sooner had they
kept out of Vietnam and avoided a campaign which was, as Mountbatten and
other experts had predicted, of little strategic importance and almost
impossible to win.

Poor strategy also explains why the so-called "war against drugs" has been
going badly, except on the tobacco front. Legal prohibition of drug use
should be abandoned as an enormously costly, yet ineffective policy.

Contrary to a widespread impression, neither possession nor use of alcohol
was forbidden in the US during the so-called "prohibition era". The
Volstead Act of 1919 was concerned basically with the manufacture, sale and
transportation of alcoholic drinks. It was, at first, moderately
successful, in that there was a substantial decline in alcohol abuse.

However, the illicit supply of alcohol had become so large by 1933, when
the Volstead Act was repealed, that the benefits were eventually outweighed
by the costs, which included the loss of revenue from taxation of alcoholic
beverages.

Just as with alcohol, there are several policy options for dealing with
cannabis and other "scheduled" drugs. For instance, the government could
abrogate the laws against possession and use, but continue to punish
supply, except under specified conditions.

As its select committee on Drug Trafficking and Drug Abuse reported to the
Australian Senate back in 1971, the major purpose of legislation should be
to control the supply of drugs that can cause harm to people, rather than
to provide a penalty system for those who disobey the law by using drugs
illegally.

There is now considerable evidence to support the view that the best way to
restrain the use of a drug that can be obtained without great difficulty by
unlawful means, is to permit its legal supply under conditions which
heavily discourage its abuse.

Thus, one of the merits of treating heroin addicts with lawfully supplied
methadone is that it spares a community the spate of robberies which would
otherwise be carried out to pay for the exorbitant charges to drug traffickers.

I think it significant that when a nationwide referendum was held in
September 1997 to decide whether Switzerland should cease to distribute
heroin under government supervision, the "no" vote was 70.6%.

I do not question the importance of trying to restrict the availability of
substances that have a high potential for causing harm. This policy works
well for such hazardous substances as poisons and explosives.

However, it is more difficult to apply for minimising the harm caused by
drugs that are taken for non-medical reasons because the demand for them
counteracts attempts to limit their use. A strong demand for a banned
article can usually be met illegally.

Gangsters have battened on the huge profits that can be made out of drugs
to such an extent that the economic strength of their "evil empire" exceeds
that of all except the richest states.

Prohibition is a realistic option for dealing with a drug with a high
potential for harm only if the drug is difficult to prepare and too little
in demand to promote illegal supply. It is clearly unrealistic for dealing
with such drugs as cannabis. In that case, a better option is to try to
limit misuse through such measures as are now employed in the case of
tobacco and alcohol.

Despite the high cost of drugs supplied illicitly, persons who have become
dependent on them can usually obtain the money, if need be by robbery or
prostitution. For other users, however, the cost of the drug can be a major
deterrent.

Increasing the tax on a product decreases its use so long as the total cost
remains insufficient to prompt the purchase of illicit material of dubious
quality.

Present legislation dealing with the non-medical use of drugs lacks
consistency. Despite the fact that tobacco and alcohol cause far more harm
than all the "scheduled" drugs put together, we do not prohibit their use
because we have learnt from experience that this policy cannot be enforced.

So long as it harms no-one else, drug use should lie outside the domain of
criminal law. As stated in the Wolfenden Report on homosexuality and
prostitution in Britain, it is not "the function of the law to intervene in
the private lives of citizens . . . there must remain a realm of private
morality and immorality which is, in brief and crude terms, not the law's
business". The prime function of criminal law is to protect individuals
against harm caused by others.

As drug taking can cause harm to others, I have no objection to legal
sanctions against drug abuse - indeed, I consider that we are far too
tolerant in dealing with it. However, these sanctions should be directed
against misbehaviour arising out of drug abuse as distinct from the use of
individual drugs.

That principle is observed in the Transport Act 1962, which made it an
offence to drive, attempt to drive or be in charge of a motor vehicle while
under the influence of a drug to such an extent as to be incapable of
exerting proper control over the vehicle. The drug does not have to be one
that is listed in some schedule.

Diverting attention from individual drugs to misconduct arising out of drug
taking has become all the more important, now that numerous substances are
being taken for non-medical reasons, sometimes in combination. Thus, it is
anomalous, to say the least, that some persons who have been accused of
taking LSD have escaped punishment through providing evidence that the
severe intoxication that led to their arrest was caused by a non-scheduled
drug, datura.

The criminality of drug trafficking is indisputable, especially when it
involves minors. Nowadays, parents have grave cause to fear that their
children may be experimenting with drugs before they have much
understanding of the risks, such as the development of drug dependence.
This is an area where tough action is undoubtedly justifiable.

Unfortunately, devising effective legal sanctions is difficult. The "big
shots" minimise the risk of getting caught by using intermediaries. The
persons running the greatest risk are those who are at the base of the
supply pyramid and who are commonly desperate to pay for the drugs that
they themselves are using.

If drug use were no longer a criminal offence, then it would be much easier
to get the co-operation of drug takers in obtaining evidence against the
major villains.

Youngsters found experimenting with such a drug as heroin or LSD could not
have obtained it by lawful means. Supply must have involved such an act as
smuggling, unlawful manufacture or robbery. Were the police able to
concentrate their attention on such undoubted crimes, the war on drugs
would be more successful.

Dr Dyer considers that "actual legalisation of cannabis in Britain is
unlikely because the United States government strong-armed all its allies
into signing three international conventions in the 1970s and 1980s that
define cannabis as a dangerous drug. To break out of these treaties would
involve a larger effort than any government with many items on its agenda .
. . would be willing to undertake."

However, there is considerable doubt over some of the obligations imposed
by these conventions, which are concerned primarily with international
trafficking.

Kevin Dawkins' article in the August 1997 number of the New Zealand Law
Journal is one of several supporting the conclusion that signatory nations
are not compelled to make the possession and use of small amounts of
cannabis punishable offences.

If indeed a new convention is needed, the task of preparing a suitable one
will have been facilitated by the recent ejection of the US from
the International Narcotics Control Board, where its malign influence has
for too long been apparent.