III. FEATURES OF CONTEMPORARY DRUG USE RELEVANT TO HUMAN RIGHTS
Many problems relating to drug use and to human rights in the context of drug use arise because of an incomplete or erroneous understanding of the actions, effects, and consequences of drugs and their benefits, risks, and harms. The following section examines four features of drug use which are pertinent to understanding the contemporary conceptualization of drug use: (1) pharmacology, (2) benefits and harms which can result from drug use, (3) economic impact of drug use, and (4) classification of drugs in law and policy
A. Pharmacological Characteristics of Drugs
Almost any drug introduced into the body has a capacity to alter mental function. Depending upon the drug involved, impairment of mental function is often dose- or time-dependent, but sometimes idiosyncratic. The effects of drug use vary according to the manner of introduction in the body, the quantity and the purity of the drugn and the frequency with which it is used. Some drugs (often referred to as psychoactive drugs) do this directly, whereas others act indirectly through metabolic or other secondary mechanisms.27 The psychoactive actions of drugs is the primary focus of this Article.
Among the direct actions of drugs are stimulation, sedation, hallucination, and alterations in perception or sensation. These actions, in turn, can produce effects such as pleasure, euphoria, disinhibition, relaxation, intoxication, enlightenment, and heightened or dulled sensation or per ception. In general, voluntary drug use is prompted by a desire to obtain these effects. In fact, most users perceive psychoactive effects as one of the important benefits of drug use.
From these effects, at least five purposes for using psychoactive drugs can be discerned: reward,28 relief, recreation,29 reinforcement, and replenishment or avoidance of withdrawal.30 These purposes are not exhaustive31 nor are they exclusive of each other. One or more of them may predominate at a particular time, thereby characterizing the use of a drug for an individual using it at that time. Implicit in each of these pur poses is a benefit (or a perceived benefit) for the user and possibly others. However, these benefits must be measured against the risks and harms caused by using the drug and the context in which it is used, including the particulars of the drug itself, the user, and the setting in which the drug is used.32
Both the effects of a drug and the purposes for which it is used may vary over time, whether or not the drug is used occasionally, persistently, or compulsively.33 For example:
Many people are able to use addictive drugs in moderation. There are coffee drinkers who take only a cup or two a day, occasional smokers who use only a few cigarettes a day, social drinkers who consume no more than a couple of drinks a day, and marijuana users who smoke a "joint" once in a while. Some people (at least for some period of time) can restrict their use of heroin to weekends, or of cocaine to an occasional party. Others, in contrast, are vulnerable to becoming compulsive heavy users, then stopping only with great difficulty, if at all, and relapsing readily. There is no sharp separation between so called social users and addicted users, but rather a continuum of increasing levels of use and increasing levels of risk.
The compulsive quality of drug addiction presents a special danger because for most drugs there is no way to predict who is at greatest risk. People who become addicted usually believe, at the outset, that they will be able to maintain control. After the compulsion takes control, addicts persist in using high doses, often by dangerous routes of administration.34
Drugs differ in their capacity to elicit physical and psychological dependence,35 but when dependence does occur, it is often characterized by two features: a determination to continue using the drug and distressing effects from not using it.36 In other words, dependent users will experience compulsion to continue to use their drugs, as well as craving for them when not using them or withdrawal when their use is suddenly discontinued.37 Some drugs are also capable of producing tolerance to them whereby users require increasing doses of these drugs over time in order to obtain the same effects.38 Dependence and tolerance have important economic implications because they can drive users into criminal activity in order to afford or acquire their drugs.
The biological risks and harms from using drugs are often misunderstood. Many people believe that compulsive drug use is an ever-present risk of using drugs, or even an inescapable consequence. The result is that many view drugs by themselves as the source of the risks and harms from drug use.39 In this situation, drugs are often perceived to be "en slaving,"40 and other factors such as the person using them and the setting in which they are used are downplayed to the point where the person becomes little more than a "victim" of the drug.4' Even with less extreme views of this risk, the result is often the same; namely, that preventing access to drugs is necessary, but whenever access is necessary, it has to be stringently controlled. Such views, however, do not appear to appreciate that most drug users can use drugs (perhaps, with the exception of tobacco) in a relatively harmless and non compulsive manner.42 This misperception of drug use and drug users has influenced the conceptualization of drug use as being exceedingly dangerous, harmful, and in need of being controlled. It has often led, if not driven, many people to stigmatize drug use and drug users, thereby contributing to the discrimination against drug users and the infringements of their human rights.
B. Analysis of the Benefits and Harms from Drug Use
Drug use can result in both benefits and harms for the person using a particular drug, as well as for others, including the drug user's community and society in general. Determination of the benefits and harms of drug use for a particular individual is case-specific.43 The characteristics of the drug itself, the person using it, and the setting or context in which it is used must be considered.44 Nonetheless, generalizations can be made, but must be formulated and used with great caution. This caveat is illustrated on the one hand by a hospitalized person in severe postoperative pain who is being treated by self-administered injections of morphine, and on the other hand, by a group of youths in a shooting gallery who are injecting themselves with heroin and sharing the same uncleaned needle and syringe. Between these extremes, for example, are people who have shared marijuana cigarettes, become inebriated from drinking alcohol, inhaled glue or solvent fumes, or stood outside a public building during a snow storm in order to smoke their cigarettes. These examples point out the bewildering complexity of drug use and the daunting challenge to devise a coherent classification of these drugs that includes their actions, effects, and consequences.
Analyzing the benefits and harms from drug use can be a powerful tool to guide legal and public policy responses aimed at controlling drug use, but this is not without risks. First, inaccurate or incomplete information can bias this analysis. All too often, the benefits from drug use are disregarded or undervalued and the risks and harms from drug use are overvalued.45 When this occurs, intrusive, coercive, and rights-infringing legislation and policies aimed at controlling drug use can be mistakenly promoted or reinforced. Second, erroneous conclusions can result when the analysis is based only upon quantifiable benefits and harms, particularly economic ones. In this situation, cultural or other social values may be overlooked or excluded from analysis, thereby biasing the conclusions. Third, the analysis can restrict wider input into the process of formulating legal and policy responses to drug use, such as excluding consideration of human rights principles and norms.
1. Benefits from Drug Use
a. Benefits for Drug Users
The potential benefits of drug use can include reward, relief, recreation, reinforcement, and replenishment. These benefits are not absolute, but are relative to the risks and harms which drug use can produce. This, in turn, depends upon a triad of factors': the drug involved, the person using it, and the situation in which it is used. Despite the popularity of drug use, its benefits are Often undervalued and may even be condemned by society. In this situation, the use of drugs that some may consider to be useful or beneficial, may be seen as risky or harmful by others. To a great extent, this reflects an incomplete understanding of the benefits, risks, and harms of using drugs. For example, thrill-seeking drug use or experimentation with drugs may be seen to be a youthful rite of initiation, which others may view as dangerous, irresponsible, or a gateway to more harmful drug use. Pain relief may be viewed as not worth the risk of possible dependence on opiates.46 Drug use may be viewed as a source of substantial revenues by governments which can be derived from licensing, taxing, and selling drugs such as tobacco and alcohol.47 When examined in greater detail, however, drug use by most youth is a passing fad, and few patients go on to compulsive drug use from opiate analgesia.48
b. Benefits for Others, Including Society
Drug use can also benefit people who do not use drugs, including some of society's cultural and religious institutions.49 For example, the creativity of many artists appears to have been enhanced by their drug use.5" In some countries, work productivity may be improved by the use of such drugs as the coca-leaf,51 khat,52 and cannabis.53 There are also religious benefits from using drugs such as the use of altar wine and peyote.54 In addition, there are benefits from the medical use of drugs, including restoring people to economic and social productivity, research investment, and the marketing of pharmaceuticals.55 The beverage and entertainment industry also benefits by its production and sale of alcohol and tobacco. Governments can benefit from the substantial revenue generated by the licit use of drugs. Nonetheless, all of these benefits must be balanced against the risks and harms from drug use. Some of these benefits, particularly those relating to tobacco and alcohol use, may be outweighed by the harms from their persistent use.56
2. Risks and Harms from Drug Use
a. Harms to Drug Users
The risks and harms from drug use can be direct or indirect, either caused by or merely associated with drug use. Such distinctions are not always appreciated, emphasizing the complexity and diversity of these consequences. Examples of risks and harms caused directly by drug use include unwanted hallucinations, distortions of mental function, and illness or death from drug toxicity and overdosage. Indirect harms caused by drug use include withdrawal, psychosis, depression, and hallucinogen "flashbacks."57 Harms can also be associated with, as opposed to being caused by, drug use. These harms may be direct, such as disease due to drug impurities including pulmonary disease and lung cancer from tobacco smoking,58 infection due to the hepatitis or human immunodeficiency viruses ("HIV"), and injuries or accidents when drug users are impaired or intoxicated by their drug use. The indirect harms associated with drug use include exposure to or engagement in criminal activity or violence59 in order to acquire drugs.
Distinguishing between these types of harms is important because legal or public policy responses to control direct harms can exacerbate indirect ones. The social construction of drug use can create risks and harms for drug users which are not intrinsic to drug use. For instance, governments have decided that the "production, manufacture, export, import, distribution of, trade in, use and possession" of a variety of drugs is illegal unless their use is permitted as an exception to this prohibition.60 The illegality of drug use makes it inescapably harmful, regardless of whether or not any other harms ensue from the use of drugs. The harms which can result from the control of drug use include: the stigmatization of and discrimination against drug users; eliciting shame and guilt in drug users; fostering a black market in drugs; making "pure" or "clean" drugs inaccessible; increasing the price of drugs and their scarcity, thereby promoting crime and violence; forcing users to associate with a population trafficking in drugs that is prone to violence and crime; and driving drug users underground out of fear of being discovered, prosecuted, and branded as criminals.61
b. Harms to Society
People other than drug users can also be harmed by drug use. They can be harmed directly when they are exposed to trauma, crime, or violence associated with drug use.62 They can also be harmed indirectly when they must support the health care, social services, and welfare of drug users, by paying higher taxes and insurance premiums and attempting to control the supply and demand for drugs.63 The magnitude of this problem can be appreciated by reports indicating that in 1985 eighteen percent of health care costs in the United States were attributed to tobacco use.64 These harms also include drug-related absenteeism and lost productivity in the workplace.65 In addition, society may be harmed when a substantial segment of the public uses drugs, thereby disregarding or disrespecting laws controlling drug use, and when a government unjustifiably infringes upon human rights in order to control drug use.66
C. Economic Implications of Drug Use
Drug use is subject to the economic forces of supply and demand.67 At least three economic factors can influence the prevalence and incidence of drug use—the availability,68 popular demand or "fashion,"69 and price of drugs.
Drug use varies with the availability of drugs, and availability, in turn, depends upon the efficiency and success of government interdiction.71 For example, the prevalence of amphetamine use in Japan and Sweden was dramatically reduced when these governments suppressed its availability.72 In the United States, alcohol was prohibited for more than a decade with a corresponding decrease in its use.73 During the Vietnam War, the accessibility of heroin combined with the stress of combat, resulted in widespread use by many American troops. However, far fewer troops used the drug when they returned to the United States, away from the stress of battle and where heroin was less accessible.74 Further, a study of Spanish injection drug users concluded that:
The assumption that drugs have an attraction in themselves, that their mere introduction may cause an "epidemic" is a comfortable oversimplification. Availability is a necessary condition for widespread consumption but not a sufficient one .... The massive expansion in the use of a previously rare drug requires not only its introduction in sufficient quantities, but also a transformation in the meanings, values, and attitudes associated with its consumption, at least among certain groups. This seemingly self-evident fact may be disguised by the popular metaphor that sees drugs as "enemies" and agents capable of "infecting" people's lives.75
Drugs come into and out of fashion. In North America, noncompulsive use of cannabis and cocaine by students has dropped during the past decade whereas alcohol use has remained stable.76 In contrast, the use of XTC has increased explosively. In part, this has come about because the availability of XTC could not be easily suppressed until it was classified as a legally prohibited drug.77 More importantly, its widespread use came about because XTC was perceived to be a relatively "harmless" drug and fashionable to use at dance parties (or "raves").78
The use of drugs will fluctuate depending upon their price.79 While prohibiting the commerce of a drug restricts its supply and accessibility, prohibition also increases its price because the drug becomes an underground commodity.80 Tobacco consumption increased in Quebec after cigarette taxes were slashed in order to reduce black market profits from the smuggling and illegal sale of untaxed cigarettes.81 Alcohol consumption has been inversely related to its cost.82 In the United States, increased cocaine use has been associated with the availability of lower priced, volatile "crack" cocaine.83 The interdiction of marijuana in Australia decreased its availability and increased its price, resulting in a shift of drug use from smoking marijuana to injecting less costly amphetamines.84
The economic impact of drug use reaches both drug users and nonusers and depends upon the triad of the drug, the user, and the situation in which the drug is used. For drug users, this impact includes the costs of acquiring drugs and the consequences of using them. Increasing drug use, especially compulsive use, can exceed the personal resources of users, leading to criminal activity to support the drug use. Costs results from impaired health due to drug use itself or as a consequence of using drugs, such as accidents and violence; loss of employment, schooling, or other opportunities for income or benefit; forfeiture of assets; and punishment for using drugs illegally (e.g., imprisonment). The burdens attributable to drug use for nonusers can include the costs resulting from crime, violence, and accidents such as those caused by persons driving under the influence of drugs.85 There are also the burdens of absenteeism, lost productivity, and workplace injuries,86 increased insurance premiums, and costs involved in trying to control drug supply and demand.87
In the United States, the economic impact of illegal drug use, as distinguished from that attributable to tobacco and alcohol use, has been estimated in the tens of billions of dollars.88 Some of this economic harm is avoidable. On the one hand, the economic harm is a function of the scope and efficacy of efforts aimed at reducing the demand for drugs and their resulting harms. On the other hand, it reflects the impact of efforts aimed at reducing the supply of drugs,89 as well as the impact of these efforts on crime, violence, underground marketing, and the criminal justice system and its prison and treatment programs.90 There is a need for analysis of the economic impact of legal and public policy responses to drug use, including the benefits and burdens attributable to both present and alternative approaches to control drug use. Such an analysis, however, would be incomplete without the consideration of the impact of these responses on the human rights of drug users and nonusers. It is likely that, given the scarcity of information concerning many of these benefits and burdens, modeling approaches would be required for such an analysis.91
D. The Classification of Drugs
Drugs can be classified on the basis of (1) their pharmacological modes of action; (2) their effects on mental function; (3) their consequences; (4) the purposes for which they are used; and (S) the means of controlling legal access to them. In general, there are three classes of domestic control of drugs, defined by the manner in which the availability and access to a drug is controlled. Access to a drug may be "unrestricted," "restricted," or "prohibited." Unrestricted access means that the drug is freely available except for restrictions relating to consumer protection or product quality considerations, e.g., food additives, cosmetics, and over the-counter medications. Restricted access means that the drug is available only through an authorized prescription, e.g., morphine and codeine, or when a drug is supplied in compliance with licensing and marketing controls, such as tobacco and alcohol. With prohibited access, the use of a drug is banned except in circumstances, such as for research or closely controlled therapeutic purposes, as may occur with methadone and heroin. 4
The legal and public policy classification of drugs, both internationally and domestically, is incoherent and shows little, if any, fidelity to other classifications of drugs.92 To a great extent, this incoherence reflects the historical development of drug control laws and policies that are the products of varied national interests and influences,93 misconceptions about the risks and harms of many drugs, an undervaluation of the potential benefits, disregard or failure to appreciate the roots of harmful drug use (particularly the adverse social conditions facing many potential drug users). the impact of stereotyping, and the stigmatization of drug users 94
This leads to the question of what can be done to make the classification of drugs on the basis of legal and public policy responses to drug use more coherent and consistent with the classification of drugs based upon the pharmacological modes of action, physiological effects, purposes for using drugs, and the consequences of using drugs. In order to answer this question, an important distinction can be made between responses to the use of drugs by individuals (i.e., responses aimed at controlling the demand for drugs) and responses to the availability of drugs (i.e., responses aimed at controlling the supply of drugs). Responses to the former situation are primarily concerned with preventing risks, reducing harms, and maximizing the benefits of drug use. Responses to the latter situation are concerned with controlling the manufacture, production, processing, distribution, and sale of drugs. Controlling the supply of drugs is less dependent upon the consequences of drug use (which may nevertheless motivate responses to control the supply of drugs) and more dependent upon the modes of action, effects, and purposes of drug use, including the purity and marketing of drugs. In contrast, demand reducing responses are less concerned with the class of a drug than the extent to which its use is risky, harmful, or beneficial. In other words, impaired driving is much the same whether one is under the influence of alcohol, morphine, anxiolytics, or phsycedilics. Similarly, intoxication due to peyote, LSD, or PCP is less relevant than the risks, harms, and benefits that result from their use.