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IV. THE EVOLUTION OF LEGAL AND PUBLIC POLICY RESPONSES TO DRUG USE PDF Print E-mail
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Books - Drug Use and Human Rights:
Written by Norbert Gilmore   
Friday, 05 January 1996 00:00

IV. THE EVOLUTION OF LEGAL AND PUBLIC POLICY RESPONSES TO DRUG USE

Drug use is probably as old as mankind,95 but it was only in this century that international legal instruments were first used in an attempt to control drug use. Use of these legal instruments began with attempts to control the opium trade in Asia.96 This was followed by efforts aimed at controlling the international commerce of an ever-increasing number of drugs and was accompanied by the passage of laws in many countries providing for domestic control of drug use. Various countries enacted these laws in order to comply with international drug control treaties and conventions. However, these laws often reached beyond the control of drug production and trafficking and also addressed the possession of drugs without intent to sell them.97 To a large extent, the evolution of these legal and public policy responses to control drug usage has been shaped and influenced by society's perception of drug use. As Andrew Weil noted almost twenty-five years ago:

Until the models that produce the current laws, decisions, and actions about drugs change, nothing about drugs will change, hence the uselessness of pressing for legal reforms as a means of solving the drug problem. Counter productive laws against possession and sale of drugs are not causes of problems; they are symptoms of problems at the level of conceptions, of mental images, just as physical symptoms of illness are effects of mental states.98

A. The Impact of the Conceptualization of Drug Use on Its Control

The control of drug users and their access to drugs is intrinsic to the legal and public policy responses to drug usage. However, which users and which drugs are to be controlled, as well as which means are to be employed to accomplish this control, vary from jurisdiction to jurisdiction depending upon how drug usage has been perceived and conceptualized.99 Drug control models seldom recognize fully the differences in the actions, effects, and consequences of drug use or the purposes for which drugs are used. These models often emphasize some of these characteristics to the exclusion of others. As a result, coherent, comprehensive, and realistic legal and public policy responses aimed at controlling harmful drug use are thwarted.100 This result is largely reflected in the balance struck between competing interests in law and policy. Specifically, competing concerns include privacy versus the intrusive measures invoked to control drug use, respect for the autonomy of drug users versus the paternalistic efforts to control them or their drug use, and cooperative versus coercive measures to prevent or reduce drug use and its harms.10t

There are at least two groups of models that attempt to explain why people use drugs, each of which implies a need for government intervention to benefit both drug users and society in general. The characterization of drug use by each of these models is incomplete, but each model has influenced the generation and promotion of responses to control drug use in most industrialized countries, and their persistence.

The first group of models views drug usage as caused by a moral, personal, or biological inadequacy or defect of the drug user. The drug user is perceived as having a deficiency in his or her ''integrity''l02 and therefore is prone to use drugs or to use them persistently, and often in a harmful manner because of moral, personal, or biological inadequacy or deficiency. Implicit in each of the models within this group is the belief that the uncontrolled use of most drugs will be harmful either to the user him or herself or to others, including society and its institutions and values. Consequently, government intervention is considered to be necessary in order to prevent or reduce exposure to and use of drugs.103

The second group of models view drug usage as a control issue, whereby the control of drugs is a means to an end, namely the behavioral, political, or economic control of drug users and the communities from which they originate or to which they belong. This group involves a political process, giving power or other benefits to those who control the availability and accessibility of drugs. These models may involve control by one or more of the following: (1) by the medical profession, which can strengthen itself by "monopolizing" access to drugs and providing prevention, care, and treatment services for drug users; (2) by a government agency or institution, whose control of drugs can augment its social control over a population; and (3) by the state, which can generate revenue by controlling the cost of drugs through licensing, taxation, and other economic means.

1. Models Focused on the Drug User

a. Moral lnadequacy

Perhaps the most prominent model of drug use is that of moral inadequacy. Many people view drug usage as the result of personal weakness or moral failure because users cannot, or do not, refrain from using drugs—which are considered to be "evil," offensive, or objectionable on ideological or moral grounds. In this model, a drug-free life is considered virtuous. Drug use, by contrast, is considered an autonomous'04 action— a manifestation of self-indulgence and moral inadequacy at one extreme and criminal behavior at the other extreme.

Communities that employ the moral inadequacy model respond to drug usage in a variety of ways. Some communities have religious proscriptions against using certain drugs;l05 in others, drug users are viewed as the "weak willed;''106 and the societal values of other communities disallow drug use.

While the moral inadequacy model emphasizes the harms of drug use, it undervalues the benefits because the benefits do not outweigh the transgressions of the principles or values implicit in abstaining from using drugs.'08 The influence of this model on legal and public policy responses to drug use is reflected by criminal laws prohibiting drug use.l09 In addition, this conceptualization of drug use often extends to other behavior, including sexual activity.110

b. Personal Inadequacy

The personal inadequacy model conceptualizes drug use as an adaptive response'1' to an adverse environment. This model views drug use as a means to minimize or avoid the adversity (e.g, relieving pain or distress, providing an escape from or compensating for difficult or intolerable conditions of daily life) or substitute for rewarding situations which are inaccessible to the drug user.1l2

Drug users are perceived as being inadequate or self-indulgent, rather than that their inadequacy is a reflection of their low self-esteem or the inadequacies of society which leave them deprived, disadvantaged, inferior and unrewarded.1l3 In this model, the user is seen as inadequate, needing drugs to "cope" with adversity. This is not a model, but psychological assessment—one's inadequacy results in drug use. For the drug user, the use of drugs is a means to an end, a means of coping even if such behavior is ultimately harmful to the user.1l4

Two different approaches to drug control are implicit in this model. The first approach views drugs as dangerous or enslaving.115 The second approach views drugs as dangerous, but less so than the "enslaving" context in which they are used.

The first approach perceives drug use to be an unacceptable substitute for other ways of overcoming, accommodating, or compensating for adversity or inadequacy. Thus, because drug use is viewed as compounding the plight of drug users, controlling it is seen as necessary in order to prevent or reduce further risks and harms from using drugs. In this re spect, the model is similar to the moral inadequacy model, but without its moral connotation.

The second approach perceives the situations giving rise to drug use to be the problem which needs to be addressed. Consequently, controlling drug use necessitates preventing or reducing the adversity and inadequacy rooted in the use of drugs.

The influence of the personal inadequacy model is reflected in the use of criminal laws to prohibit drug use and possession, as well as in laws authorizing interventions to improve social situations (e.g., reducing inner-city poverty, crime, and violence; providing education about drug use through counseling; and, through the treatment and support of drug users).116 Experience with interventions to have bicyclists wear safety helmets suggests that both negative content (e.g, criminal) and positive content (e.g., educational) approaches are necessary to avoid or reduce harmful drug use. As the American Medical Association Council on Scientific Affairs has stated:

In Howard County, Maryland, the observed use of bicycle helmets by persons younger than 16 years increased from 4% to 47%, after a law was passed requiring bicyclists in that age category to use helmets when riding on county roads or paths and an educational program on bicycle safety was carried out. In two adjacent counties not having such a law but having similar safety education programs, increases of 11% and 15% occurred in children's reported helmet use ....

In Beachwood, Ohio, a community that mandated the use of helmets for bicycle riders younger than 16 years and provided a variety of educational programs and some publicity, the observed use of helmets among children was 85%. This result was much better than in three nearby communities that mandated helmet use but did not arrange educational or promotional programs; in these communities, 37%, 22% and 18% of children reported that they always wore helmets.ll7

c. Biological Inadequacy

The third model, biological inadequacy, views drug use to be (1) a response to either a deficiency or insufficiency in a drug receptor or drug analogue that occurs naturally in individuals or (2) an imbalance in, or disregulation of, neural pathways responsive to a drug.1l8 This condition can be inherited or acquired and can be induced or unmasked by the use of drugs. Currently, there is little conclusive evidence for a biological basis explaining the initiation of drug use, although research on a genetic basis for alcoholism shows promising but disputed results.119 On the other hand, antisocial personality disorder, considered an inheritable trait, has been frequently associated with drug usel20 even though a corresponding molecular abnormality that would link this disorder with drug use remains to be discovered.'21

The biological inadequacy model implicitly views drug use to be a disease or medical problem122 requiring medical intervention.123 "This theoretical approach has treatment implications; for example, it supports two divergent approaches tD dealing with substance abuse: (1) the use of methadone detoxification and maintenance, and (2) the Alcoholics Anonymous (AA) chemical-free approach that stresses a need for total abstinence.''124 The influence of the biological inadequacy model is reflected in laws that subject drug users to medical treatment or provide for such treatment.l25 Its influence is likely to increase as studies continue to provide a clearer understanding of the molecular bases for drug use,126 as research leads to interventions which can thwart some of the undesirable consequences of drug use,127 and because of a growing prevalence and concern about fetal drug exposure,l28 particularly the concern over so called "crack" babies.129

2. Models Focused on the Control of Drugs

In contrast to models that view drug use as a problem originating in the drug user, there are models that view drug use as a social problem where the control of drugs is a means of controlling people. This model is based upon the premise that controlling drugs can be a source of power or political influence. An often cited example of such control is that of physicians controlling access to drugs.

In addition, the control of drugs can be a means of controlling drug users and their communities. This control may involve direct control over drug users, those suspected of using drugs, and the communities to which they belong via criminal justice measures or control of the marketing and licensing of drugs.

a. Clinical Control

The use of drugs has both medical utility and health consequences. Although at times risky, the medical use of drugs is universally viewed as beneficial,130 and the medical profession is recognized as authoritative in their use. In addition, the medical profession deals with many of the harmful health consequences of drug use. Thus, the control of drugs in this model is perceived to be more effectively dealt with by the medical profession. The profession is reinforced by controlling drugs, particularly when drug control avoids or reduces the risks and harms from drug use.'31 Thus, controlling the access to drugs can be beneficial for the medical profession, relative to control by other groups or organizations. This is illustrated by differences between the U.K. and North American responses to drug control.

In Britain, the disease concept of drug use was firmly entrenched by 1910. The reason for its success in that country can be found in the changing role and status of the medical profession in Victorian society, at a time when doctors were beginning to accumulate some of the functions of the clergy.

Physicians, the new guardians of morality, simply substituted new names for ancient evils: madness became mental illness; drunkenness became alcoholism; and the sin of Onan became masturbation. The old sins to be confronted and overcome were, by the late nineteenth century, diseases to be cured. At the same time, physicians were tightening up their ranks and establishing themselves as a remarkably prestigious and influential profession.

In North America, however, similar professional solidarity was to come somewhat later. By the time the Canadian Medical Association ("CMA") had become a viable organization, in the late 1920s, a law-enforcement response to drug control was firmly entrenched. In the absence of advocates for the disease model, the moral failure model held sway.

Across the Atlantic, British doctors were playing an important role in the formulation of drug policy. They thus retained the right to prescribe regular doses of heroin or other opiates to their dependent patients, even when there was no physical illness to justify the prescription. Unhindered by influences external to their profession, they jealously guarded their freedom to determine therapy in individual cases.

Meanwhile, North American law enforcement authorities held a trump card: they could define the boundaries of legitimate medical practice by arresting those doctors they deemed to have exceeded them. The onus was on the physician to prove that the therapy was justified.132

The clinical control model perceives drug use to be both beneficial and harmful. However, the benefits can be realized and the harms prevented or reduced more effectively when the medical profession controls access to these drugs.'33 This model is inherently paternalistic and emphasizes the regulation of drugs through prescription access. Users are controlled by controlling access to drugs.134 The increasing prominence of harm reductionl35 reinforces a medical control approach to drug use. Among the harm-reducing interventions are promotion of the use of methadone,l36 encouraging medical treatment of drug use,137 and free distribution of clean injection equipment.138 This approach is not without its critics, in particular, when harm reduction and public health interventions become instruments, allies, or agents of state intervention used to control drug use and drug users.139 The influence of this model is seen in drug laws dealing with prescription drugs140 and the medical treatment of drug dependency.l4l

b. Social Control

Drug use is an activity that is undertaken by individuals. In the aggregate, however, drug users represent populations with identifiable characteristics, such as cannabis-intoxicated students quietly watching music videos, rowdy athletes celebrating a victory with beer or champagne, elderly people chronically using codeine to relieve their arthritic pains, and party-goers high on XTC. Drug users also belong to communities or populations. The characteristics of drug users may be generalized to the entire population to which they belong, thereby labeling the population with the characteristics of the minority who use or abuse drugs.l42 This is likely when a population is already stigmatized, considered offensive, or strongly disapproved of by society as a whole.143 Efforts to control the characteristic behavior of the minority may lead to controlling the entire population involved, especially when such control would be beneficial for the controllers.l44

This model emphasizes the control of behavior associated with drug use; the means of controlling this behavior is by controlling the access to drugs. This can be accomplished through a variety of legal measures, including law enforcement. Under this model, people are often subjected to authoritarian controls, sometimes called "law and order" approaches. These controls may include prohibition of stringent restrictions on the use of drugs and severe and disproportionate penalties for using drugs, such as subjecting people to surveillance and searches.l45 The influence of this model is reflected in prohibitionist policies and criminal laws.l46

Some have openly criticized the use of criminal law to control drug use. One commentator concluded that:

Gambling, prostitution, drug use, sexual behavior between consenting adults—the entire range of "victimless crimes"—had been mistakenly subject to the criminal law, with terrible consequences for the courts, the prisons, police departments, and the very status of the law. "The criminal law is an inefficient instrument for imposing the good life on others.''l47

A recent Canadian newspaper editorial remarked about responses to control cocaine use:

If cocaine isn't inherently dangerous, if it isn't a threat to law and order, why make it a criminal offence? At best we compound a problem; at worse, we actually create one. First, we make criminals of those who have committed a victimless offence. Second, we instruct police to find and arrest offenders. Third, we ask the courts to try them and the prisons to incarcerate them. At every stage, there is a cost to society. We stigmatize people, divert resources from other law-enforcement needs [and] clog the justice system.l48

c. Economic Control

Drugs are a commodity whose value varies in relation to their scarcity and the demand for them. This is clearly seen in the revenue generated by the marketing of tobacco and alcohol.149 As commodities, they also can have impact on foreign trade and policy.l50 At a structural level, resources are allocated to control drugs, thereby providing jobs and status to those who control drugs and their use.l5l The consequences of drug use also have an economic impact on health care, social and welfare systems,l52 and workplace productivity.l53 The economic consequences of drug control primarily involve governments that are benefited and harmed by controlling drugs. For example, governments can benefit from controlling drugs through taxation, yet be harmed by the costs needed to control drugs.l54 Consequently, there is an incentive to control drug use that benefits the government. The economic model reflects these perceived benefits and harms and views drug control as an interest of the state. The influence of the economic model of drug control is reflected in licensing, taxation, and asset confiscation laws.155

3. An Emerging Paradigm: Drug Use as a Public Health Problem

Drug use is often referred to as a serious public health problem.l56 Serious national problems can be addressed from several perspectives that reflect both the ways these troubles are understood and described, as well as, the ways they are confronted. In regard to the drug problems now faced in the U.S., at least two distinct and fundamentally opposed approaches can be taken. The present and past policies of the U.S. toward drug abuse have been to regard it as a moralistic issue (couched in terms of health and social consequences), that requires a punitive response .... This approach has largely failed. An alternate policy is to approach drug abuse (of all types) as a complex public health problem. From a public health perspective, drug use must be understood as caused by multiple factors of the person, as well as, social, economic, and political conditions. Such an approach requires more than a "quick fix" and superficial intervention to the very complex and deep-rooted problems of drug abuse, that are likely to be the obvious symptoms of greater social malaise, hardship and inequity.l57

This conceptualization of drug use reflects a growing awareness that (1) many of the harms from drug use are health problems;l58 (2) drug use may be a public health crisis as shown by the spread of HIV infection through the sharing of injection equipment; (3) drug use can be responsive to public health prevention strategies;l59 (4) harm reduction and public health approaches are complementary and, at times, indistinguishable;160 and (5) promoting and protecting human rights is an essential component of the efforts to respond to public health problems, even though the promotion and protection of public health is one of the interests that may justify the restriction of human rights.l61

The public health model views drug usage as a function of preventing or reducing drug use, its risks, and harms.162 This model sees drug use as being "embedded" in society.'63 From a public health perspective, reducing the demand for drugs necessitates addressing the social context in which people live and use drugs. In other words, the reduction in drug use involves reducing poverty, ignorance, illiteracy, disempowerment, and other conditions that can deprive people of realistic opportunities to not use drugs, or at least to use them safely. This model applies to the use of all drugs, regardless of their legal status. More importantly, this model is compatible and supportive of the promotion and protection of human rights.164

Public health and harm reduction approaches to drug use often appear indistinguishable. Both recognize that using drugs in a harmless manner is necessary whenever drug use occurs. Each places great emphasis on preventing and reducing the harmful consequences of drug use. Among the means to accomplish this are education, counseling, support, treatment (including methadone maintenance), persuading drug users to switch from injecting drugs to inhaling or ingesting them, and the provision of clean injection equipment.

An essential feature of this model is its involvement with human rights issues. First, public health goals and interventions can be a basis for justifying an infringement of the righ4; of drug users.l65 One such example would be the prohibition of tobacco smoking in shops, offices, and restaurants to prevent secondhand smoke inhalation. Another example is the use of breathalyser testing, to prevent trauma from motor vehicle accidents.

Second, as the HIV pandemic demonstrates, public health efforts are limited when human rights are not respected and they are made effective or more effective when they are respected.166 Further, efforts to promote and protect human rights and health are not only complementary, but also interdependent and mutually reinforcing. What is done to promote and protect human rights will also help to promote and protect health, and vice versa.'67

B. International and National Legal and Public Policy Responses to Control Drug Use

International and domestic legal and policy responses to drug use have evolved in response to a variety of influences. Among them is the influence of how drug use is perceived and conceptualized. This includes the influence of models of drug use to affect the persistence of legal and policy responses to drug use and its adaptation to changes in drug use. The second influence is international legal instruments relating to drug use. The third influence is that of the U.S. government and its drug control policies. Finally, the fourth influence is the growing dissatisfaction with these other influences, which has led to increased appreciation for new or revised approaches to drug control.

This new-found appreciation has, in turn, led to a growing divergence between international and domestic responses to drug use. On one side, increasing emphasis is being placed on efforts to reduce both the supply of drugs and access to them; on the other side, increasing emphasis is being placed on efforts to reduce the demand for drugs, with a corresponding emphasis on harm reduction and public health approaches and a deemphasis on criminal justice approaches to control drug use and its harms.

1. Influence of Models of Drug Use on the Legal and Policy Responses to Drug Use

How drug use has been perceived and conceptualized has strongly affected the formation of international and domestic legal and public policy responses to drug use. For example, viewing drug use and drug users as immoral has strongly influenced the evolution of prohibitionary approaches to drug use, particularly in the United States. This trend is reflected in the "zero tolerance" approach to drug use, emphasis on abstinence, resistance to methadone maintenance, and legal requirements for mandatory education and treatment of drug users.168

The personal inadequacy of drug users—in particular the inequalities and deficiencies in their personal, social, and economic environments—is increasingly being seen as a serious threat to controlling drug use and its harms. This has led to efforts to improve the desperate, devastating, and often destitute and violent inner-cities where many drug users live. Responding to these problems involves the implementation of social programs such as family, educational, vocational, and employment assistance, as well as the provision of treatment and rehabilitation as alternatives to imprisonment.l69 This approach deemphasizes moral inadequacy views of drug use.l70 Among the interventions which flow from this understanding of drug use are improved access to education, counselling, and treatment programs. Among these are programs in prison,l7' outreach needle-syringe distribution programs that also offer counseling and drug treatment referral services,172 and programs that facilitate networking among drug users and the development of their communities. 173

The biological inadequacy model shifts the emphasis from viewing drug use as a purely social issue to viewing drug use as a complex health problem. As a result, there is growing acceptance of the use of medical interventions aimed at reducing harmful drug use, such as methadone maintenance. 174

The influence of the clinical control model can be seen through the approach to drug control taken by several countries. In some countries, such as the United Kingdom, opiates have been regulated by prescription access and there is strong emphasis on the clinical treatment of drug use.l75 In Italy, a recant national referendum has made it possible for physicians to treat drug users.l76

The social control model has been, and continues to be, important in the formulation and support of regulatory control of drinking and smoking. This model has also contributed to the U.S. "War on Drugs," which is reinforced by the public frustration over the growing crime and violence associated with drug use, the economic impact of drug use, and the profound disadvantage of some populations where drug use is prevalent. Under this model, drug use is sometimes misperceived as "causing" or aggravating these problems, rather than resulting from them. Thus, controlling drug use is seen as necessary, which consequently requires controlling people rather than controlling the settings which underlie drug use.l77

Growing awareness of the crime and violence associated with drug use in many countries has reinforced the influence of an economic model of drug control. This control is increasingly seen as a powerful tool to control drug use and trafficking and criminal activities associated with them. Especially appealing to governments are increased powers to confiscate assets associated with drug trafficking. One consequence of laws formulated in response to this model is that it extends to governments further power to intrude into the lives of its citizens in order to control drug use. .

2. International Legal and Policy Responses

International drug control laws and policy arose out of a desire by a small number of governments to control opiate commerce at the beginning of the twentieth century.l78 This response is characterized by control over an increasing number and broader categories of drugs and their precursors, a shift from the regulation of legal commerce in opiates and cocaine to the control of illicit cultivation, production and distribution of drugs, and a shift from governance by government delegates to intergovernmental agencies. This evolution is reflected in the chronology of the major treaties addressing the international control of drug use.'79

Surprisingly, international human rights standards and international legal and policy responses to drug use have evolved side-by-side within the United Nations family. These legal and policy responses, however, do not appear to have been subjected to scrutiny for their compliance with human rights standards. For example:

It is clear from even a cursory review that human rights issues have little or low priority at the international level in this particular context; and it is noteworthy that there appears to be no formal submission from the United Nations International Drug Control Programme ("UNDCP") to the World Conference on Human Rights, held in Vienna on 14-25 June 1993 .... Nor are there any specific references to the particular problems associated with alcohol and drug dependence in the Vienna Declaration and Programme for Action, adopted at the conclusion of the Vienna Conference....

There is no explicit reference to the categories of persons with which we are concerned [drug users] in the 1988 United Nations publication, United Nations Action in the Field of Human Rights.l80

In most industrialized countries, the legal control of drug use extends to the "production, manufacture, export, import, distribution of, trade in, use and possession''18l of the drugs involved. Efforts to control the supply of drugs include broad police powers to discover and interdict the illicit production, distribution, sale and possession of prohibited drugs, the power to seize assets relating to these illicit activities, the power to prosecute and punish offenders, and the power to require drug users to undergo medical treatment. Other powers include the regulation of prescription drugs and the marketing and taxation of restricted drugs, such as tobacco and alcohol. Governments also try to reduce the demand for drugs through education and provisions in health care, such as detoxification and access to methadone treatment programs and services (e.g., rehabilitation and reintegration into society to help users to recover from their drug use).l82 Countries differ in their balance between supply re duction and demand reduction to control drug use. In the United States, for example, 1991 federal allocations for supply and demand reduction were seventy-one percent and twenty-nine percent,'83 respectively, with similar allocations in 1995.]84 By contrast, allocation for supply and demand reduction in Canada from 1987 to 1992 were thirty percent and seventy percent, respectively.l85

3. National Legal and Policy Responses

a. United States of America

The origins of U.S. drug control legislation and policy are rooted in the late nineteenth century, with its racial control policies, economic concerns over the international marketing of opiates and cocaine, domestic control of drug marketing, and the rise of the Temperance and the Anti-Saloon movements (which viewed alcohol as a destructive influence in a progressive American society).186 The laws and interventions of the U.S. federal government shifted from consumer protection (involving the safety or quality of products and control of marketing by means of licensing, taxation, and restriction of access by prescription) to the prohibition of the production, distribution, and possession of an increasing number of drugs.l87 Among the consequences of these responses has been that:

[T]he American tradition of conceptualizing drug users as criminals has led to an approach to demand reduction which is enforcement oriented. This is particularly evident in the concept of "user accountability", which seeks to hold individual users accountable for the fact that their own drug use is part of the cause of a problem which eventually results in the death of some users, in addiction for others and in a host of drug-related problems such as crime and corruption. This is linked to another concept called "zero tolerance", which attempts to make no distinction in terms of culpability between use or possession of very small amounts of illicit drugs and use or possession of large amounts. The effort to force users to cease drug use is backed up not only by the criminal law, but by an increasing array of administrative penalties (such as denial of government housing, suspension of pensions, cancellation of licenses) for any involvement in the drug scene, no matter how insignificant.l88

Some of these responses have been relaxed, including the repeal of the prohibition of alcohol in 1933, permitting methadone maintenance, and reducing the penalties related to the possession of cannabis in some states.l89

Legal responses to control 3rug use in other industrialized countries have evolved to comply with international legal instruments. These responses vary from jurisdiction to jurisdiction, but, in general, they reflect the influence of the U.S. "War on Drugs" approach to drug control.l90 For instance, Canadian legal responses to control drug use are similar to those of the United States, perhaps due to Canada's proximity to the United States.l9l Interestingly, two attempts by the Canadian Parliament to revise its drug control laws have, so far, been unsuccessful. The proposed revisions were drafted so as to comply with federal human rights standards and the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.l92 Support for a "War on Drugs" approach has faltered in some countries, particularly because of a growing concern that this approach is less effective and more harmful than alternative approaches. The result is that some of these countries are moving away from the strong prohibition stance of the United States. l 93

b. Other Countries

Since 1976, the Netherlands has experimented with the liberalization of its polices relating to the use of so-called "soft" drugs, such as cannabis. This "normalization" policy permits cannabis to be marketed under strictly regulated conditions.194 This approach has been opposed by neighboring countries.l95

The United Kingdom has steadily favored a regulatory approach to control drug use. This approach came into favor because of the prominence of the British medical profession at the beginning of this century.l96 It has resulted in the medical availability of heroin and methadone, an emphasis on medical definitions of harmful use rather than criminal justice ones, and the implementation of innovative harm reduction approaches.

This is not to say that Britain had no penal provisions in its early legislation. The first Dangerous Drugs Act (UK), passed in 1920, did contain them and the Dangerous Drugs Amendment Act of 1932 advanced Britain further along the penal policy track, with increased powers of search and longer sentences. In fact, the British legislation was not dissimilar in tone or intention to the American Harrison Narcotic Act of 1914, but in the United States the addict was criminalised, while in Britain the medical profession maintained considerable autonomy over dealing with addicts.l97

Since 1967, there has been a shift towards more stringent control, more restrictive prescription access to drugs, and greater emphasis on criminal justice involvement iri drug coritrol.l98 These changes led to passage of The Misuse of Drugs Act in 1971l99 and The Drug Trafficking Act in 1986.200

The changes which have taken place in the 1980s with respect to British drug policy have their roots in a number of developments, including changing concepts of drug abuse and its treatment, the declining influence of the medical profession in drug policy making, the "internationalization" of the drug problem and the attendant pressures (particularly from the United States) for a consistent international approach, and the role of the media as a creator and amplifier of drug images.201

In Italy, disillusionment with the prohibition/criminal justice approach to drug control led to a recent national referendum that successfully overturned parts of Italy's drug control legislation and policy. As a result, police are now discouraged from perceiving drug users as criminals (with the exception of those involved in drug trafficking). Possession of drugs for personal consumption has been decriminalized, and physicians are now permitted to treat drug users and prescribe them methadone according to their individual needs.202

Early responses to drug use in Australia appear to have been racially motivated, reflecting a social control model directed at Chinese immigrant laborers. The Australian response also reflected increased professionalism and power of physicians and pharmacists, as well as public and political indifference to drug use.203 In 1985, the Commonwealth government announced a national strategy against drug use which emphasized a comprehensive approach, demand and supply reduction, as well as strengthening existing institutional and community structures.204

South Australia and the Australian Capital Territory, however, have joined Italy and the Netherlands in reducing control over the personal possession of cannabis.205 For example:

Section 31 of the Controlled Substances Act [1984 of the State of South Australia] creates offences relating to possession of a drug of dependence or a prohibited substance, the consumption or self-administration of a drug of dependence or prohibited substance, and the possession of 6'any piece of equipment for use in connection with the smoking, consumption or administration of such a drug or substance" (see section 31(a), (b) and (c)) ....

All three offences, however, come within the definition of a "simple possession offence" which under section 35 of the Act, must be referred to a drug assessment and aid panel. Each such assessment and aid panel consists of one legal practitioner and two people with expertise in drug misuse problems or the treatment of drug problems. Unless the accused person prefers to have the matter dealt with by a court, wishes to deny the alleged offence, or for some other reason does not wish the panel to handle the case, the panel will normally proceed to deal with the matter by way of assessment and undertakings relating to treatment and rehabilitation. The alleged offence may not then be prosecuted without the authorization of the assessment panel.206 In addition, the Australian Capital Territory is pursuing intervention research that would make heroin and methadone more readily available to users of these drugs.207

 

Our valuable member Norbert Gilmore has been with us since Sunday, 19 December 2010.

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