After the Drug Wars

Report of the LSE Expert Group on the Economics of Drug Policy After the Drug Wars Report of the LSE Expert Group on the Economics of Drug Policy, February 2016 Foreword

The post-‘war on drugs’ era has begun. Prohibitionist policies must now take a back seat to the new, comprehensive, people-centred set of universal goals and targets that we know as the Sustainable Development Goals (SDGs). Nation states and the global drug regulatory system must shift to principles of sustainable development that include: public health, harm reduction of consumption and supply, access to essential medicines, and scientific experimentation with strict legal regulation. To enable this transformation, nation states should drastically deprioritise the prohibitionist goals of the past. They must implement new comprehensive development policies dealing with the root causes of problems associated with illicit drugs. The ‘war on drugs’ caused the international community to prioritise prohibitionist policies over sustainable development at a terrible socioeconomic cost. As the United Nations Development Programme highlights in the discussion paper excerpted in this report, ‘evidence indicates that drug control policies often leave an indelible footprint on sustainable human development processes and outcomes… [and] have fuelled the marginalisation of people linked with illicit drug use or markets.’ This report recognises that key reforms within the global regulatory system will come from changes at the national and local levels. It highlights that the UN drug control treaties recommend an approach grounded in the ‘health and welfare’ of mankind. Further, it emphasises that human rights obligations have absolute supremacy over drug control goals and as such there is sufficient interpretive scope within the treaties to experiment with social scientific policies that can further global health and welfare. The world can shift away from counterproductive and ineffective drug policies. The UN General Assembly Special Session in 2016 is a key platform for driving debate. However, the ultimate impetus lies with countries to reform their policies based on evidence and local realities. This report provides a framework for achieving this shift.

Juan Manuel Santos, President of the Republic of Colombia Professor Daron Acemoğlu, Massachusetts Institute of Technology, 2005 John Bates Clark Medal Dr. Francoise Barre-Sinoussi, Pasteur Institute, 2008 Nobel Prize in Physiology or Medicine Professor Erik Berglöf, Director, LSE Institute of Global Affairs Professor Paul Collier, CBE, University of Oxford Professor Michael Cox, Director, LSE IDEAS Sir Thomas Hughes-Hallett, Founder, LSE Marshall Institute Professor Gareth Jones, Director, LSE Latin America Centre Professor Emeritus Margot Light, London School of Economics Professor Eric Maskin, Harvard University, 2007 Nobel Prize in Economics Professor Francisco Panizza, London School of Economics Professor Danny Quah, Director, LSE Southeast Asia Centre Professor Dani Rodrik, Harvard University, 2007 Albert O. Hirschman Prize Professor Thomas Schelling, University of Maryland, 2005 Nobel Prize in Economics Professor Vernon L. Smith, Chapman University, 2002 Nobel Prize in Economics Dr. Javier Solana, EU High Representative for Common Foreign and Security Policy (1999-2009) Professor Oliver Williamson, University of California Berkeley, 2009 Nobel Prize in Economics 4 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 5 LSE Expert Group on the Economics of Drug Policy*

Professor Danny Quah is Professor of Historical Memory, Dr Michael Shiner is Assistant Olga Rychkova is a Program Officer of Economics and International the National Union School and the Director of the Mannheim centre for for the International Harm Reduction Development, and Director of the Ombudsman´s Office. He has also criminology at the London School Development Program, focusing Saw Swee Hock Southeast Asia worked as a political adviser in the of Economics, and is a member of on access to health and to justice Centre within the Institute of Global Bogota Council and Congress. StopWatch, which works to ensure for women marginalised for their Affairs at LSE. He had previously fair and accountable stop and search. drug use. Prior to joining the Open Dr Vanda Felbab-Brown is a Senior served as LSE’s Head of Department Prior to this he worked at the Public Society Foundations in June, 2009, Fellow with the Center for 21st for Economics (2006 – 2009) and Policy Research Unit, Goldsmiths Rychkova worked at Mainline, a Century Security and Intelligence Council Member on Malaysia’s College and the Policy Studies harm reduction advocacy group in in the Foreign Policy program at National Economic Advisory Council Institute. His work has included Amsterdam that works to protect the Brookings Institution. She is an (2009 – 2011). He is Tan Chin Tuan analyses conducted on behalf of the health and rights of people who expert on international and internal Visiting Professor at the National Independent Committee of Inquiry use drugs, and promote better public conflicts and non-traditional security University of Singapore, and lectures into the Misuse of Drugs Act. health policies for marginalised threats, including insurgency, regularly at Peking University. people. organized crime, urban violence, and Bryce Pardo is an Analyst at BOTEC. Dr. John Collins is Executive Director illicit economies. His international work experience Javier Sagredo is Regional of the IDPP at LSE IDEAS. His research and knowledge gives him unique Democratic Governance and Dr Beau Kilmer is a Senior Policy focuses on the history and political insight into transnational drug Citizen Security Advisor at the Researcher at the RAND Corporation, economy of international drug trafficking, international drug UNDP. Before working for UNDP, he where he codirects the RAND Drug control. He is coordinating a British control, and comparative drug laws. was Senior Advisor, Section Chief Policy Research Center. He is also Council funded project on ‘Illicit Drug He served five years as an official and Coordinator of projects in the a professor at the Pardee RAND Production and the Search for Peace at the Inter-American Drug Abuse OAS in areas like social inclusion, Graduate School. His research lies at in Colombia.’ Control Commission (CICAD) within institutional development and public the intersection of public health and the Organization of American policy on drugs in Latin America and Tenu Avafia is a Policy Adviser on public safety, with a special emphasis States (OAS). During this time he the Caribbean. law, human rights and treatment on substance use, illicit markets, contributed to and edited the OAS access issues in the HIV, Health and crime, and public policy. Rebecca Schleifer is a globally Report on the Drug Problem in the Development Group in the United respected advocate, researcher and Dr David Mansfield is an Americas (2013). Nations Development Programme’s scholar working in the field of health independent consultant widely (UNDP) Bureau for Development Dr Catalina Pérez Correa González and human rights. Her expertise regarded as the pre-eminent expert Policy. His responsibilities include is Professor and Researcher in encompasses human rights aspects on rural livelihoods and opium overseeing the implementation Legal Studies Division at CIDE of drug control policies, disability, poppy cultivation in Afghanistan. of the Global Commission on HIV (Mexico). She studied at the Stanford and HIV and AIDS, with particular David has advised a range of and the Law Report. He also leads a University School of Law in California. attention to girls and women, sex bilateral, multilateral and non- UNDP programme to increase the She was a Researcher at the Institute workers, gay, lesbian, bisexual and government organisations, including access and delivery of new health of Legal Research of UNAM, a transgender men and women, the UK Government, the EC, the technologies for neglected tropical Professor at the Faculty of Law of the people who use drugs, and other World Bank, GTZ, as well as various diseases in low and middle UNAM, and visiting Researcher at marginalised high risk groups. NGOs on both policy and operational income countries. Georgetown University. Her research issues with regard to illicit drugs. Dr Francisco E. Thoumi is a member interests include law enforcement in Professor Jonathan Caulkins is of the International Narcotics Dr Kasia Malinowska-Sempruch Mexico, the operation of the criminal the H. Guyford Stever Professor Control Board (INCB). He is a is the Director of the Open Society justice system, and drug policy in of Operations Research and senior member of the Colombian Global Drug Policy Program. A Latin America. Public Policy at Heinz College, Academy of Economic Sciences major contributor to the debate Carnegie Mellon University. His Professor Harold Pollack is and Corresponding member of the about the interplay of drug use research focuses on modelling the Helen Ross Professor at The Royal Academy of Moral and Political and HIV, Malinowska-Sempruch the effectiveness of interventions University of Chicago. He has Sciences (Spain). He has been a previously headed the Open Society related to drugs, crime, violence, published widely at the interface Professor at the University of Texas, International Harm Reduction delinquency, and prevention. between poverty policy and public Rosario University (Bogotá) and Development Program, introducing health. His recent research concerns California State University, Chico, and Dr Joanne Csete is Adjunct and significantly scaling up access to HIV and hepatitis prevention efforts worked for 15 years in the research Associate Professor at Columbia needle exchange and substitution for injection drug users, drug abuse departments of the World Bank University Mailman School of Public treatment across Eastern Europe and and dependence among welfare and the Interamerican Development Health. Previously she was an Central Asia. recipients and pregnant women, Bank. Associate Professor of Public Health Professor Mark Shaw is the Director infant mortality prevention, and at Columbia University; the Founding Dr Rodrigo Uprimny Yepes is a of the Centre of Criminology in the child health. Director of the HIV and Human Founder and Director of Dejusticia Faculty of Law, University of Cape Rights Program at Human Rights Professor Peter Reuter is a Professor (Colombia), member of CEDD, and Town (UCT). He also holds the Watch; Executive Director of the in the School of Public Policy and the Professor of Constitutional Law, South African National Research Canadian HIV/AIDS Legal Network; Department of Criminology at the Human Rights and Theory of the Foundation (NRF) Chair in Security and a senior technical advisor University of Maryland. He founded State at the Universidad Nacional and Justice. Appointed to the Centre at UNICEF. and directed RAND’s Drug Policy (Bogota). He is the author of in September 2014, He aims to Research Center from 1989-1993. numerous articles on human rights, Sergio Chaparro Hernández is a strengthen and improve research He also served as the founding constitutional law, tensions between researcher at Dejusticia, a Colombian and innovation in the field of security President of the International law and economics, drug trafficking human rights organisation and and justice in South Africa, to build Society for the Study of Drug Policy and the court system. think/do tank based in Bogota. An capacities required for research (ISSDP). Among his six books is (with Economist, philosopher and Master that will enhance explanatory and Robert MacCoun) Drug War Heresies: in Law at the Universidad Nacional normative understanding of African Learning from other Vices, Times de Colombia, he has worked as security and justice. and Places. a professor of labor economics,

consultant at the Colombian Center * LSE IDEAS is responsible for the overall conclusions of this report. Each Contributor is responsible solely for the views expressed in his or her contribution. 4 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 5 LSE Expert Group on the Economics of Drug Policy* Contents

Executive Summary 6

Development First: Multilateralism in the Post-'War on Drugs' Era 9 John Collins

Re-examining the ‘Medical and Scientific’ Basis for Interpreting 19 the Drug Treaties: Does The ‘Regime’ Have Any Clothes? Francisco E. Thoumi

Regulation of Possession and the Criminalisation of 30 Drug Users in Latin America Catalina Pérez Correa, Rodrigo Uprimny and Sergio Chaparro

Legalising Drugs Prudently: 40 The Importance of Incentives and Values Jonathan P. Caulkins

If Tougher Enforcement Cannot Reliably Raise Drug Prices, 51 What are Appropriate Goals and Metrics? Peter Reuter, Harold A. Pollack and Bryce Pardo

Drug Policing: What is it Good For? 59 Michael Shiner

Uncle Sam’s Cocaine Nosedive: 67 A Brief Exploration of a Dozen Hypotheses Beau Kilmer

Cuidado: The Inescapable Necessity of 79 Better Law Enforcement in Mexico Vanda Felbab-Brown

UNGASS 2016: The Focus on ‘Harm Reduction’ is 89 Making Us Blind to Reducing the Broader Harms of Organised Crime Mark Shaw

Addressing the Development Dimensions of Drug Policy 97 Javier Sagredo, Rebecca Schleifer and Tenu Avafia

Measuring the Impacts of Repressive Drug Policies on Women 109 Kasia Malinowska-Sempruch and Olga Rychkova

Public Health Research in a Time of Changing Drug Policy: 119 Possibilities for recovery? Joanne Csete

(Mis)understanding the Intersection Between Development Policies 127 and Data Collection: Case Study, Afghanistan David Mansfield 6 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 7

Executive Summary

John Collins

he ‘war on drugs’ has been largely discredited on the international stage. Former and sitting presidents, Nobel Prize winners, heads of UN agencies and other world leaders have all in some way rubbished the idea of the international Tcommunity waging war against already marginalised groups of people as a way to prevent substance use or misuse. It is for this reason that the UN General Assembly Special Session (UNGASS) in April 2016, whatever the explicit consensus outcomes, represents the global end point in a failed and counterproductive strategy. The question now is what comes after the drug wars.

This report suggests a new set of guiding policy principles for both the national and international levels. First, replace prohibitionist drug policy goals with the Sustainable Development Goals (SDGs). Second, drastically expand public health approaches, including harm reduction services. Third, apply the principles of harm reduction to supply-side policies and management of illicit markets. Fourth, utilise inherent flexibilities within the conventions to engage in rigorously monitored social scientific policy experimentation, conforming to strict public health and human rights principles.

The Role for Multilateralism Regulating Drug Consumption and Supply

In the first two chapters John Collins and Francisco Thoumi discuss There is a clear policy consensus in favour of decriminalising the UN drug conventions and the role of multilateralism after the drug consumption to reduce the harms of drug prohibition and drug wars. Both argue for a more nuanced implementation of the support public health. Catalina Pérez Correa, Rodrigo Uprimny international drug control treaties with much closer regard to local and Sergio Chaparro highlight that, despite the overt reformist development, welfare, public health and human rights. They also discourse, ‘Latin American governments maintain a predominantly highlight innate flexibilities within the treaties. punitive and repressive approach to illegal drugs and their use.’ Their paper seeks to explain why, and analyses some of the John Collins demonstrates that a ‘development first’ approach to moral and theoretical problems implied by criminalisation. They drug policy reigned prior to the declaration of the ‘war on drugs’ in argue that ‘with little in its defence, regulation of possession must be the 1970s, and he calls for a return to this principle. He highlights that revised’ in order ‘to protect users from the application of unjust and the UN drug conventions were not written as a ‘prohibition regime,’ disproportionate laws and practices.’ and instead their core ‘intent’ and ‘purpose’ was ‘an international trade regulatory framework’ with broad national scope for interpretation Jonathan Caulkins examines the legalisation of cannabis and, and implementation. Collins highlights that extreme prioritisations potentially, other currently illicit substances. Leaving aside the of prohibitionist policies produced the modern ‘war on drugs,’ but question of whether legalisation is a good idea, he focuses on this can be rolled back through prioritising development and welfare principles for how best to implement it. He highlights that, policies, outlined in the SDGs. (1) Heavy users are prone to abuse dependence-inducing intoxicants; (2) Industry prioritises profit over protecting customers, recognising

that most sales and profits flow from the minority of heavy Francisco Thoumi explores the logical consistency of the consumers; (3) Regulatory bodies are prone to industry capture. conventions. He highlights that, despite limiting drug uses to ‘medical As such, the regulatory architecture should be stacked in favor of and scientific purposes,’ these key terms are not defined in the protecting public health, most notably the welfare of the heavy users conventions and current interpretations exclude any contribution of who lose control over their consumption. the social sciences. Consequently, because these ‘key determinants of the allowed drug uses are not defined, it is logically impossible to know if any specific policy complies with the conventions, and it is not possible to rule out any policy as ‘unscientific’,’ including those based on ‘social scientific’ experimentation. 6 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 7

Vanda Felbab-Brown examines the security operate in isolation or at cross-purposes. Toward ‘Harm Reduction’ situation in Mexico. She highlights that They argue that to succeed in meeting the for the Supply-Side major human rights violations and drug SDGs and drug control goals, UN entities and violence persist. Security policy remains Member States must commit to a sustainable focused on the military and Federal Police, development approach to drugs. Given the continued existence of an with a lack of planning and operational Kasia Malinowska-Sempruch and Olga enormous illicit drugs market, whatever design. Criminalisation has fuelled low-level Rychkova examine the impact of repressive the outcome of small scale regulatory incarceration. Meanwhile, the Supreme Court drug policies on women and ‘the children experimentation, the following five papers is moving towards marijuana legalisation. for whom women are often the principal examine the role of supply-side policies She highlights that decriminalisation and caregivers.’ They highlight that incarceration within the SDGs. Three focus explicitly on legalisation will need to be coupled with of women for drug offences is increasing applying the concept of ‘harm reduction’ comprehensive law enforcement (beyond rapidly in many parts of the world, including to supply-side policies, while two examine high-value targeting), extending state Latin America, with broader societal impacts. case studies. presence, developing socioeconomic Further, punitive drug laws result in children anti-crime efforts and strengthening citizen- Peter Reuter, Harold Pollack and Bryce being taken from mothers, reduce access to state bonds. Pardo examine the ‘classic and critical essential health and treatment services and assumption of the ‘war on drugs’,’ namely ‘that Mark Shaw warns the emerging public stigmatise vulnerable populations placing more stringent enforcement would raise health consensus towards consumption them at much higher risk of HIV, HCV and price.’ They highlight that ‘there is minimal comes at a risk if it allows a return to other health-related issues. They highlight evidence’ in favour of that assumption, established law enforcement practices that less punitive laws for minor and non- although warning that the research base further down the supply chain. He reiterates violent drug infractions are the best single is so weak as to make a firmer statement that the harms from criminal networks are means of reducing incarceration of women ‘unwarranted.’ They suggest explanations for frequently only exacerbated by hard-line and thus incarceration-related abuse. They why enforcement fails at the margins to raise criminal justice and militarised approaches. suggest new policies, targets, metrics and prices. Further, they elaborate a set of metrics He examines ‘widening the scope of the indicators to reverse or at least mitigate for policing as well as concluding that ‘harm harm reduction concept to the drugs supply these impacts. reduction’ ‘is most helpful in identifying a set chain in its entirety, and to organised crime Joanne Csete examines a sustainable and of guiding questions which ought to inform itself.’ Shaw highlights that UNGASS and effective public health approach to drugs. drug policy and drug law enforcement.’ the SDGs can help make a linkage between She highlights that aggressive policing and security and development issues and thereby Michael Shiner points to ‘a central paradox incarceration results in higher HIV, hepatitis help protect development interventions of drug policing - what is politically C and tuberculosis risks. She then looks from criminal exploitation – and to deliver acceptable cannot be achieved, but what is ‘beyond the impact of drug policy on the services where they are needed most. That, achievable is not politically acceptable.’ He health of the individual,’ to examine the he points out, is the route to undercutting highlights that prevalence of drug use varies ways a focus on repressive drug policies criminalised violence. sharply between countries, but is not causally has distorted and limited public health related to the severity of the local drug science, research and practice as tools to policy regime. He warns that inappropriate address drug problems. Further, she shows policing increases market violence, health the need for greater scepticism about the harms and damages police legitimacy. He supposed effectiveness of drug courts and suggests harm reduction policing can tackle Towards Sustainable Drug Policies & the SDGs highlights that UN agencies and treaty underlying problems rather than simply bodies, ‘which should promote evidence- responding to specific incidents. based best practices in research and Even in the case of specific market shifts, The final four chapters examine how key programmes, have too often been silent the causes are unclear and rarely causally development issues intersect with drugs, or complicit with questionable research attributable to supply interventions. peace and security policies. (and programme) directions.’ Beau Kilmer examines the US cocaine market, Drawing on the UNDP discussion paper David Mansfield examines rural which appeared to shrink by roughly 50% from on the development dimensions of drug development and drug control. He 2006 to 2010. He explores twelve hypotheses policy, Javier Segredo, Rebecca Schleifer highlights that illicit crop production often for the market reduction and concludes that it and Tenu Avafia highlight that repressive represents ‘a dual edged sword,’ generating is too early to determine the cause. However, if and prohibitionist drug policies have both benefits and costs for producer further research points to supply-side polices, frequently been implemented irrespective countries, while ‘Alternative Development’ ‘this does not mean that supply reduction is of development goals. Further, these achieves very limited results and fails on pro- the optimal approach for reducing problem policies have had little effect in eradicating poor development outcomes. As a result, consumption; much depends on the particular production or problematic drug use, while development organisations are often ill at drug, stage of the epidemic, characteristics exacerbating poverty, impeding sustainable ease when engaging with the challenges of of the country and the perspective of the development and threatening the health illicit drug production in the global south and decision maker. It would, however, challenge and human rights of the most marginalised tend to ignore the illicit economy altogether. the conventional wisdom that supply-side people. Further drug control agencies and He subsequently highlights that many drug interventions can do little to influence mature development institutions have tended to control statistics are methodologically weak consumption markets.’ and ignore the wider socioeconomic, political 8 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 9

and environmental context. This reinforces the tendency towards simplistic models of rural development where development assistance is a means to leverage reductions in drug crop cultivation from rural elites and power brokers while development outcomes go largely unnoticed.

On Metrics and Indicators

Each chapter includes a discussion on metrics and indicators. John Collins writes that to ‘walk into a discussion on the direction of drug policy in any meeting is to walk in on a discussion of the need for new metrics, indicators, or in some circles, for new data. The assertion is rarely followed by any tangible elaboration of actual metrics and indicators.’ In this report most authors offer a critique, furtherance of or greater level of specificity to the metrics debate in a purposely informal and discursive manner.

Conclusion

The international community’s great mistake over the past few decades has been to treat drugs as a singular issue, independent of broader socioeconomic determinants. The result has been policies fixating on greater repression on the demand or supply side as a means to eradicate the problem, with occasional funding for ineffectual ‘alternative development’ programmes as a ‘softer’ approach. UNGASS is an opportunity to correct this strategic imbalance. It is an opportunity to move beyond short- termist approaches that target symptoms rather than causes. Going forward, drug policy should not be seen as a supply reduction, demand reduction or alternative development issue. It is, first and foremost, a sustainable development issue. . 8 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 9

Development First: Multilateralism in the Post-'War on Drugs' Era

John Collins1

he failures of the ‘war on drugs’ have been well documented elsewhere.2 Former SUMMARY and sitting presidents throughout Latin America to the sitting President of the TUnited States, his former Attorney General, and now the Prime Minister of Canada ■■ UNGASS 2016 will mark the beginning all openly reject the ‘war on drugs’ in favour of new approaches grounded in public health of the post-war on drugs era. and policy alternatives including legal regulation of cannabis. The Director of the US ■■ The international system has moved Office of National Drug Control Policy (ONDCP), Michael Botticelli, recently described the toward a new cooperative structure war on drugs as ‘all wrong.’3 based on the tenets of ‘policy pluralism,’ which is the most fortuitous Regardless of the official outcomes of the purposefully undefined criteria for ‘medical route toward developing the social UNGASS 2016, it represents the end point and scientific’ use7 all represent ingrained scientific base. of the global ‘war on drugs’ era.4 The key interpretive room within the conventions, ■■ The rigidity and obligations of the questions remain; how to reform national reinforced with an absence of any tangible drug treaties are often drastically and international approaches to drugs, treaty enforcement mechanisms. overstated, and the obligation to where to direct scarce resources, how to pursue policies which we equate with This chapter highlights that the treaties translate evidence into policy, and what the ‘war on drugs’ are virtually themselves do not constitute a ‘prohibition policies to replace the ‘war on drugs’ strategy non-existent. regime’ mandating a ‘war on drugs.’ It shows with. While a wholesale change in national ■■ From the very beginning, the UN that the treaties represent a relatively loose regulatory structures, let alone international drug conventions were read in international trade regulatory framework. ones, seems far off, incremental shifts have terms of local socioeconomic and Like all regulatory frameworks they suggest political realities. begun and look likely to pick up steam. In permitted and non-permitted (or prohibited) this new era, the post-‘war on drugs’ era, as ■■ A ‘development first’ approach had practices. An extreme focus on tackling this paper argues, national and local spheres frequently been the case before the certain types of prohibited behaviours from declaration of the ‘war on drugs’ in increasingly hold greater relevance than the 1970s onwards produced the modern the 1970s. international ones in determining policy ‘war on drugs’ – but it is far from a direct by- choices and outcomes. ■■ ‘Medical and scientific’ use was a product of the UN drug conventions.8 constantly shifting parameter based At the international level this is reflected on reigning cultural norms. The UN Moreover, the chapter demonstrates in greater reliance on treaty ‘flexibilities’ to was generally a reflection of this, not that throughout the twentieth century, a determinant. sustain international cooperation, even if drug control imperatives were repeatedly that cooperation occurs on an entirely new ■■ Portrayals of the UN drug conventions subsumed to security, development, political implementation framework.5 Some reject as ‘prohibitionist’ are historically stability and population welfare imperatives inaccurate, and the treaties’ flexibilities as a ‘cop out’ to avoid rewriting the or what we might now refer to under the ‘intent’ and ‘purpose’ was for a treaties or claim flexibilities on drug treaties umbrella of ‘development issues.’ It was relatively loose international trade represent a threat to international law.6 regulatory framework. only during the ‘war on drugs’ era, 1971- This paper rejects both of these arguments, 2016, that drug policies became increasingly ■■ An extreme focus on specific highlighting that the history of UN drug prohibitionist policies produced the untethered from other policy realities. By control is poorly understood, the domestic modern ‘war on drugs.’ However, this highlighting that drug policies can once obligations of the treaties overstated, and can be rolled back through local and again be subsumed to development policies, the obligation to pursue policies which national policy choices. i.e. the current Sustainable Development we equate with the ‘war on drugs’ largely ■■ Multilateral reforms, although Goals (SDGs) framework, it suggests a return non-existent. This chapter argues that occurring, will inevitably lag behind to a ‘development first’ approach to drugs local and national reforms. selective enforcement, policy prioritisation, and drug policy. wide national regulatory variations, and 10 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 11

Finally, this paper highlights new interpretive UNDERSTANDING THE ‘PURPOSE’ The treaties frameworks for the post-war on drugs era that build on convention ‘flexibilities’ to enable a new round AND IMPLEMENTATION OF represent a relatively 14 ‘ of social scientific policy experimentation. It argues THE CONVENTIONS loose international trade regulatory that the forthcoming role for multilateralism is to framework. Like provide a functional cooperative framework to all regulatory help member states (the executors of the treaties) The conventions are frequently described in frameworks they to manage this issue, mitigate cross-border spill- terms of mandates toward prohibition. It is, as is suggest permitted overs, forward evidence-based drug policies, often repeated, a ‘prohibition regime’ advocating 15 and non-permitted and openly challenge practices unjustified by a clear set of prohibitionist principles. The (or prohibited) evidence and banned by human rights law. treaties are, as some have put it: ‘fundamentally 16 practices. An about prohibition.’ These principles, it is inferred, extreme focus on mandate unconstrained and symmetrical tackling certain enforcement around preventing the non-medical 17 types of prohibited EXPLAINING THE END OF THE and non-scientific use of certain substances. behaviours from ‘WAR ON DRUGS’ ERA This interpretation usually begins with the current the 1970s onwards policy framework as the logical outcome of the produced the treaties and thereby reads the history backwards from the current approach. The treaties preceded modern ‘war on The changed international paradigm has been the war on drugs and therefore must have drugs’ – but it is far precipitated by four main factors: from a direct by- mandated it. Further, in the absence of textual product of the UN 1. Recognition of broad failures of supply clarity within the documents their ‘prohibitionist’ drug conventions. reduction policies;9 intent is often used to infer an obligation to repressive policies in legal analyses.18 2. A massive normative shift away from repressive demand reduction policies toward Those which deviate from this ‘prohibitionist’ ’ public health oriented policies based on approach, the Swiss, the Dutch, Uruguay, the US, voluntary treatment provision and harm Bolivia (and others which avoid the flashlight 19 reduction;10 of international attention ) are regarded as aberrations or ‘defections’ from the clear intent of 3. Interpretive widening around UN drug the conventions.20 This establishes a dichotomy control treaties, and a recognition that between strict treaty adherents and those these treaties sit within a wider plethora of defecting from or ‘breaching’ the treaties. This development and human rights needs and dichotomy is then used to argue for the necessity obligations (see below); of treaty rewriting. 4. A small number of ground-breaking shifts The following examples, far from exhaustive, intend in national regulatory regimes, particularly to highlight that instead of a clear dichotomy cannabis legalisation. between adherence and ‘breach,’ implementation Many international forums, once bastions of the has always ranged on a broad spectrum. This prohibitionist mentality of market eradication and implementation was determined by resource zero tolerance to drug use, now openly discuss constraints, local economic development, security compassion and public health approaches. The policy, political stability and geopolitics. As one interventions (if not the language) of ‘harm UK diplomatic brief in 1951 highlighted, parts of reduction’ are increasingly recognised for their the drug conventions had frequently ‘been more efficacy. The clear failures of ‘demand reduction’ honoured in the breach than in the observance.’21 and ‘supply reduction’ policies militate against Nevertheless, the conventions have traditionally cheerleading for a continuation of a police-led and been viewed as a useful coalescing mechanism for 11 militarised strategy. Few still seriously speak of a international cooperation and therefore deserving ‘drug free world.’ Meanwhile, emerging regulatory public declamations of respect and adherence. experimentation with recreational drug markets is Legal accommodations (what we today might 12 widely viewed as either inevitable or a positive call ‘flexibilities’) have been a common part of the 13 empirical social scientific experiment. international discourse, and generally accepted provided they sustained a sense of coherent international management of the issue.22 10 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 11

Regulations over Prohibitions: of consumption.29 Prohibitions on certain types of use could be viewed as end goals but only if a whole array of development and Far from a system focused on ‘prohibition,’ prior to the ‘war on drugs’ governance outcomes were secured first.30 era, prohibitions represented one (relatively minor) aspect of a Quiet bilateral pressure from the US eventually pushed the UK to broader international regulatory and trading arrangement. The vast officially end government supplies of smoking opium to registered majority of diplomatic fuel from 1924-1971, when the modern treaty users in most colonies at the end of World War II.31 However, in many system evolved, was burned on developing international production cases, local policies remained unchanged or the form of government regulations – i.e. establishing how many states could grow opium ‘maintenance’ changed. For example, the Colonial Office merely and other substances and in what quantities. The US favoured a switched to providing opium in pill form, as this was seen as more strict oligopoly of producers based on quotas, while other powerful in line with conceptions of ‘medical and scientific’ use of the day.32 drug manufacturing states preferred a relatively free market to keep Yet, as political unrest continued in Malaya through the late-1940s, opium prices low. they consciously avoided enforcing pointless prohibitions on Prohibitionist aspects of international treaties, for example against smoking opium and deflected attention by once again highlighting state sanctioned opium smoking or problematic cultivation, were illicit trafficking in the region as a mitigating factor.33 The UK also of secondary interest. Many, the UK for example, thought the latter steadfastly refused to implement immediate prohibitions in Burma unsolvable and held much ‘sympathy for the raw [opium] producing after World War II, despite intense US pressure.34 countries.’23 They merely sought to enshrine market protections The US itself was extremely selective on enforcement. It was happy for their pharmaceutical firms in treaty law. Further, when the to pressure states to implement prohibitions, but would ignore conventions were formulated, European countries had extremely them the moment broader geopolitical interests intervened. For low levels of domestic consumption. They viewed a well-regulated example, although the US was ostensibly pushing Iran to limit opium international trade as the best mechanism to keep consumption production after World War II, embassy officials in Tehran, bucking low and undermine the illicit market. Under this trajectory of against congressional pressure, cited ‘patent instability’ and refused supply management, international provisions around managing to lobby for measures against opium production until stability consumption were generally sidestepped24 or kept as relatively returned.35 In the 1940s and 1950s the US ignored high levels of unobtrusive as possible. Again, as one UK diplomat wrote, British opium smuggling from Kuomintang insurgents in Burma, continued public opinion ‘little excited by a drugs menace, would not favour opium smoking in French Indochina36 and Mexican domestic opium extravagant local penalties to meet a world problem.’25 production.37 What these and numerous other examples show is that drug issues Prioritising Policies: Development, Security and were almost never read in isolation of broader health, welfare, Welfare First: development and security targets, and rarely as absolute obligations to institute un-sequenced and self-defeating policies. When international obligations pushed against the continuation of Therefore, the history of the international system highlights that: preferred regulatory policies, the latter were generally continued regardless of the treaties by referring to mitigating factors. The 1912 and 1925 conventions suggested prohibitions on opium smoking and accompanying production in Asia. However, the imperial powers in pre- and post-World War II Asia largely refused to implement them 1. The term ‘Medical and scientific’ use was the treaty because state structures were too weak to do so, medical systems delineator between licit and illicit practices. However, - let alone treatment services - were non-existent, and because it it was a consistently shifting parameter determined would simply fuel an already large regional illicit market. by reigning cultural norms. The international control Instead, their focus was to regulate existing consumption via system was a reflection of these norms, not a monopolies and maintenance. They could then aim toward determinant. In the Single Convention the definition a time when prohibitions would be feasible and not produce of ‘medical and scientific’ use was consciously left to more harm than good.26 For example, many of the monopolies member states38 to decide alongside broad scopes to enacted registration and rationing systems and in many areas implement national regulations. the core focus of opium policy was merely to make government 2. Bilateral political pressure was often the key driver of opium more competitive than illicit opium. The goal was, first and shifts toward prohibitive models of regulation, not any foremost, do no policy harm and second to lessen the harms of the overweening fidelity to a prohibitionist reading of the 27 regional illicit markets. Blind adherence to international policy drug conventions. Recourse to bilateral pressure was, agendas forwarded by, what one British medical official called in-turn, generally determined by, and subservient to, ‘statistics-bound opiophobes’ and ‘anti-opium propagandists,’ broader geopolitical interests. ‘would be foolish as well as wrong’ if it didn’t take account of local realities.28 3. The conventions, from the very beginning, were read and implemented with close regard to local The Dutch and British, in particular, focused their diplomatic efforts socioeconomic and political realities. This has since on creating a fully regulated global licit market (see below) to been extended to include UN human rights regimes undermine the illicit one. If this could be shown to demonstrably which mitigate against repressive policies. suppress the illicit market and make prohibitions more sensible they would be countenanced. Even then, however, they insisted on ‘a reasonable transitional period’ to shift away from certain types 12 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 13

The Single Convention: an even looser regulatory framework than Medical and scientific’ use was the Single Convention and was written the treaty delineator between The obligations, architecture and authorship with a burgeoning drug industry in mind, ‘ licit and illicit practices. of the Single Convention are widely while the 1988 Convention was written in However, it was a consistently misunderstood. It was a consolidation terms of the 1961 Convention’s regulatory shifting parameter determined of existing treaties with some minor framework.46 These conventions and by reigning cultural norms. advances, such as defining the parameters relevant international bodies provided a The international control of supply regulation and suggesting further useful enabling mechanism to coalesce system was a reflection of prohibitions on types of non-medical and member states around, while growing drug these norms, not non-scientific use (while leaving these terms consumption in traditionally recalcitrant a determinant. purposely undefined). regions like Europe facilitated the US global ‘war on drugs’ pincer movement. A global Far from being the author of the document, regulatory framework matured alongside the US rejected the Single Convention ’ and was co-opted by the ‘war on drugs,’ but because it was seen as too permissive. The it was not a determining factor. The UN as a Normative Actor: US failed to secure key goals and, due to an inept delegation,41 the diplomatic heavy The UN is frequently referred to as the lifting was taken over by the UK who drove ‘policemen’ of global prohibition. This is the compromise Single Convention through. Summary something not mandated by any treaty. For example, the US strongly advocated From 1909-1967 a global regulatory system Moreover, the UN CND is effectively a wording suggesting states consider a was created at the international level to democratic forum populated by member ‘closed institutional’ method of dealing manage the flows of ‘dangerous drugs.’ It was states. The International Narcotics Control with addiction (a euphemism for confined a system of trade regulation – not a system Board (INCB) is not a UN body - it has a compulsory treatment or incarceration) if of global prohibition. Like all regulatory role in assisting member states in treaty resources permitted. Even this watered down systems it created a distinction between ‘licit’ implementation and highlighting concerns version could not make it into the draft.42 to CND, but has little room for autonomous activities and ‘illicit’ activities. The former Most importantly, the Single Convention action, let alone enforcement. The drug centred on undefined ‘medical and scientific’ allowed for the regulation of international secretariat (currently UNODC) exists to use of ‘scheduled’ substances, while the supplies of drugs, but provided no facilitate CND and member state policies. The latter centred on undefined forms of non- mechanism for shrinking them, other than Secretariat has played a role in advocating medical and non-scientific use and diversion. mild dissuasion – for example, self-reporting repressive policies and setting national The overall goal was to create a ‘planned’ exports to the INCB. The US instead pushed 47 policy trajectories toward the ‘war on drugs.’ international market, with demand being for the stalled and wildly unpopular 1953 However, this arose through agenda setting, predicted by industry and governments, Opium Protocol which would have limited the policy dissemination and nudging toward and supply being determined by a central production and export of opiates to a global repressive policies by suggesting they were bureaucratic group of number crunchers oligopoly of countries. The US delegation based in best-practice evidence. – what became INCB – while transactions pointed out that the Single Convention was would be left to the market. For example, the UN drug secretariat was based on ‘an entirely different concept’ of The assumption of its architects was that instrumental in shaping the international production limitation than the 1953 Protocol. a functioning regulatory system would narrative around managing consumption. The Single Convention, they wrote, contained: absorb most licit production, lessen the illicit This normative framework was established ‘a compromise provision resulting from the market and thereby help lessen non-medical by a questionnaire circulated to member insistence of the Soviet Bloc, countries in the and non-scientific consumption. What states in March 1947. Independent of any British Commonwealth, and some African would remain would be a minimal role for treaty obligations, questions were designed countries that the new countries be permitted enforcement activities.48 These assumptions to suggest repressive and strict measures as to produce and export opium if they so proved misplaced as drug consumption the natural response, such as asking whether desire.’43 As a result, one major US press source grew rapidly in the 1960s onwards and provision had been made to isolate drug described the Single Convention as a ‘Soviet with it the global illicit market. Further, an ‘addicts’ from the rest of the population.39 plot’ to flood the world with opium.44 States began vying to outdo each other at overly westernised conception of ‘medical It was not until 1967 that the State CND in highlighting the severity of control and scientific’ consumption consigned Department shifted policy and drove its and punishment. Soon the arrest of ‘addicts,’ large swathes of traditional medical use ratification through the Senate.45 Eventually overprescribing doctors, illicit traffickers and to the illicit market and with it the regions the White House unilaterally declared the other narcotics laws violators were viewed as where it was present. Simultaneously, ‘war on drugs’ in 1971. It thereafter focused metrics of success in international control.40 those advocating a police oriented and on aggressive bilateral diplomacy, funding repressive and militarised approach gained The implication is that these were policy efforts and ensuring regulatory capture of prominence and eventually instigated the trajectories and choices, to which treaty international bodies such as INCB, the UN ‘war on drugs’ of the 1970s – 2000s. However, debates have little relevance. Member states drug secretariats, and exerting significant by 2008 it was clear that this approach was can, just as they rolled toward these policies, political capital at CND. not working and member states began to roll back from them. UNODC, just as its openly question the consensus. It is toward ‘Later conventions were additions to the predecessors painted repression as the policy this period we now turn. regulatory framework but provided little du-jour, can now highlight more effective that was new. The 1971 Convention was policies in its place. 12 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 13

Meanwhile, governmental views on drug where true UN reforms could be enacted. THE RECENT HISTORY OF treaty issues were summed up by one senior Others looked outside the system. As one 49 UNGASS, 2008-2016: Latin American political leader in 2014: ‘we senior Latin American official stated in a private examined the treaties closely and concluded roundtable: ‘the current system does not work 58 In 2008, amidst carnage in Mexico and a there is nothing in them which requires a ‘war for us and we cannot wait for it to change.’ on drugs.’52 While many observers continued recognition of the mass incarceration crisis in In the years 2008-16 the UN served as a useful to argue normative, legal and moral the US, a shift in global drug policies became forum for driving a change in the normative imperatives for treaty rewriting, pragmatism apparent. For the first time in decades, underpinnings of global drug policies. By seemed increasingly absent. Latin American new approaches outside the ‘war on drugs’ exposing the contradictions between the governments, while leading the debate, strategy were countenanced. Tentative UN’s approach to drug policy and broader appear to have done so for a variety of reasons discussions gave way to open debate. By approaches to human rights, development including: geopolitics, national self-interest, October 2012 President Juan Manuel Santos and public health (most notably in the diplomatic manoeuvring, pragmatism, a of Colombia called for a systematic rethink of field of HIV), significant rhetorical and desire to pursue effective and evidence- global drug policies arguing that: policy shifts occurred. These changes have based policies and other idiosyncrasies. been internalised by CND, UNODC and its ‘The time has come to think outside the When some of these factors began to shift or box. Our invitation is to dutifully study corresponding bodies. This percolated down results were unclear, their willingness to bear new formulas and approaches screened to member states, many of whom more the resource and time burdens of endless through an academic, scientific and openly laud human rights and public health diplomatic processes waned. non-politicised lens, because this war policies. However, while governments have has proven to be extremely challenging The US, on the other hand, simply shifted absorbed the language of reform, they have 50 and oftentimes, highly frustrating.’ their interpretation of the international generally avoided major shifts in budgets treaties after several states moved toward and policies. To tackle this latter issue now By June 2013, a coherent reform bloc cannabis legalisation. Further, in moments requires a shift beyond international forums had emerged in the Americas under of bluntness, State Department officials and a greater focus on changing national the leadership of Mexico, Colombia and have openly asserted national sovereignty and regional funding and policy goals. Guatemala. At the height of global reform tempered by a need to defuse international rhetoric, even the UN Secretary General criticisms.53 Conservative actors within called for ‘a wide-ranging and open debate the control system, most notably the 51 that considers all options.’ diplomatically inept President of INCB (a Policy Experimentation in treaty body with an abysmal human rights Reform-minded civil society was encouraged a Changed International record),54 Raymond Yans, sparked ire by and hoped for a full ranging debate which publicly castigating Uruguay for legalising Environment would break open the holy grain of global drug cannabis while seeming to avoid direct policy: rewriting the UN drug conventions. 55 confrontation with the US. As US Assistant Secretary of State for the Some member states appeared willing to Simultaneously, a number of other Bureau of International Narcotics and Law push a hard-line reform agenda and the ‘flexibility frameworks’ emerged to deflate Enforcement Affairs, Ambassador William idea of written treaty reforms was quietly the conventions as an obstacle to reform. Brownfield stated: ‘Things have changed countenanced. However, member states Europe, while expressing discomfort with since 1961. We must have enough flexibility soon faced a choice: shift policies by (1) overtly highlighting international legal to allow us to incorporate those changes circumventing the conventions or (2) instruments as ‘flexible,’ preferred to speak into our policies … to tolerate different engaging in a monumental diplomatic of interpretive ‘scope,’ downplay the debate national drug policies, to accept the fact that process that risked rupturing the global and keep it off their already packed policy some countries will have very strict drug control system and other issues, linked agenda. Asia, meanwhile, sought a path of approaches; other countries will legalise via byzantine international institutional 59 ‘steady as she goes’ on the ‘war on drugs,’ entire categories of drugs.’ structures and politics. with ASEAN nations continuing the ‘drug free There is no single mechanism to define the 56 The tendency toward option (1) was only world’ pursuit. Russia, pursuing the maxim boundaries of the treaties. Member states reinforced when one or more of the following of ‘offence is the best defence,’ grappled with must instead decide whether the national factors seemed present: building repressive coalitions around anti- regulatory systems they enact remain ‘in public health policies – for example an anti- 1. If the system could be reformed by de good faith in accordance with the ordinary methadone coalition57 – and pushing a hard- facto rather than de jure means; meaning’ of the treaties, as mandated by the line on opium production in Afghanistan. Vienna Convention on the Law of Treaties.60 2. If the system could serve as a The likelihood of creating a new ‘consensus’ mechanism to readjust regional across these diverse blocs on this divisive Meanwhile, as Mark Kleiman and Jeremy institutional alignments for a variety issue hardly needs elaborating. Ziskind note: ‘The places that legalise of issues by exploiting drugs as a cannabis first will provide – at some risk to geopolitical wedge issue; The UN stepped in to take clearer control their own populations – an external benefit to 3. If wavering adherence to the control of the negotiating reins. Soon the UNGASS the rest of the world in the form of knowledge, system could add new pressure for process became bogged down in consensus however the experiments turn out…[t]he additional resources from interested building and the reform impetus appeared guardians of the international treaty regimes states such as the US to tackle issues to stall. By mid-late 2015, expectations for would be well advised to keep their hands off seen as important to producer and the UNGASS meeting reached rock bottom. as long as the pioneering jurisdictions take transit countries. Some looked to 2019 as the ‘next big step’ adequate measures to prevent ‘exports.’61 14 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 15

2. Supremacy of Human Rights FRAMEWORKS FOR FLEXIBILITY Treaties over Drug Control Treaties: ON REGULATED MARKETS:62 Human rights obligations are a part of the UN Charter. Obligations derived from the drug 1. Resource/Capacity Limitations: control treaties are subordinate to human rights Selective Enforcement Model: obligations. As the UN Charter explicitly states, ‘in the event of a conflict between the obligations This framework derives from legal complications of the Members of the United Nations under the around enforcing the treaties in a federal political present Charter and their obligations under any other international agreement, their obligations system. The US remains the test case. The federal under the present Charter shall prevail.’67 government is the signatory to the UN drug control treaties and is their executor. Individual US states are Uruguay has provided a systematic elaboration of not. The federal government has no constitutional this argument. The Uruguayan Ministry of Foreign authority to force states to implement the treaties. The Affairs wrote to the INCB in February 2014:68 federal government only has the authority to directly enforce the treaties in states via federal resources. ‘The Uruguayan State is an absolute The US State Department has argued this would defender of international law. In that sense, place an excessive burden on federal resources it has a comprehensive view of the law and and is therefore not consonant with a realistic obligations assumed by the country not interpretation of the drug control treaties. Further, only in the sphere of the Drug Conventions the drug control treaties make repeated and specific of 1961, 1971 and 1988, but also in the field mention of ‘constitutional limitations’ as a mitigating of the protection of human rights… factor around implementing a number of their clauses. For example, Article 35 of the 1961 Single It is important for Uruguay to remark the Convention includes the preface: ‘Having due regard following: to their constitutional, legal and administrative i. The object and purpose of the 63 systems the Parties shall…’ Convention on Narcotic Drugs, The US State Department has gone further and especially the 1988 Convention, should suggested a four-point framework for continuing be combating illicit trafficking and, international cooperation around drug policy, whilst in particular, combating the harmful allowing increasing variation in national policies:64 effects of drug trafficking… ii. All the measures adopted to put this 1) Defend the integrity of the core65 of combat into practice must neither the conventions. contradict the Uruguayan Constitution 2) Allow flexible interpretation of treaties. nor ignore or leave fundamental rights 3) Allow different national/regional strategies. unprotected. 4) Tackle organised crime. ‘Alternative iii. The obligations that our State, as well ‘development’ as other State parties, have assumed represents a Other federalist jurisdictions have faced similar under other Conventions, must be issues. In the case of Spain, a 2013 report by RAND particularly taken into account, in particular those highlights that: 66 problematic related to the protection of human rights, since they constitute jus cogens framework as it ‘Following several Supreme Court rulings, the [“compelling law”] and cannot be segregates entire possession and consumption of cannabis is no ignored. communities from longer considered a criminal offence, and the regular development jurisprudence in the field has tended to interpret iv. …given two possible interpretations of processes and the existing legislation in a way that permits the provisions of the Convention, the implements ‘shared consumption’ and cultivation for personal choice should be for the one that best retrograde and use when grown in a private place. While there is protects the human right in question, discredited no additional legislation or regulation defining as stated in Article 29 of the American development policies the scale or particulars under which cultivation Convention on Human Rights…In with the same end- could be permitted, the Cannabis Social Club this context and on the basis of the points as eradication (CSC) movement has sought to explore this above interpretation, we believe that strategies: ineffective, legal space, reasoning that if one is allowed to production and sale in the manner crop displacing cultivate cannabis for personal use and if ‘shared prescribed in the new law may be the and innately short- consumption’ is allowed, then one should also best way, on the one hand, to combat termist, while be able to do this in a collective manner. In this drug trafficking, and on the other, to favouring the landed context, hundreds of CSCs have been established defend the constitutionally protected over the landless. over the past 15 years, but legal uncertainty right to freedom of our fellow citizens.’ around the issue of production continues.’ ’ 14 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 15

3. Expanded Definition of ‘Medical processes and implements retrograde and and Scientific’ via Social Scientific discredited development policies with the same Policy Experimentation: end-points as eradication strategies: ineffective, crop displacing and innately short-termist, while favouring the landed over the landless.73 As the commentary on the 1961 Single By tackling the causes of poverty, insecurity and Convention states, ‘The object of the international inequality, governments can lessen the causes narcotics system is to limit exclusively to medical of illicit drug economies and thereby eventually and scientific purposes the trade in and use of work to reduce supply. However, the policy controlled drugs.’69 process must be properly sequenced and supply The Commentary on the Single Convention reduction viewed as the long-term outcome of states that ‘the term ‘medical purposes’ does successful development policies. not necessarily have exactly the same meaning at all times and under all circumstances.’70 Prior to 1961, an array of states counted state regulated opium eating and smoking as ‘quasi- Key Policy Points: medical’ use.71 Although this has ceased, it ■■ Support development and political highlights the continued evolutionary process integration first. of convention interpretation. By redefining national understandings of ‘medical and ■■ Accept a need to accommodate scientific’ with greater regard to national needs, local realities and prioritise indigenous rights and human rights, states policy goals: development over eradication. can expand the scope of licit consumption practices under the conventions. This provides ■■ View problem-crop reduction as a significant and innate flexibility of interpretation positive externality (outcome) of around implementation of the conventions.72 successful sustainable development In particular when understood in terms of the policies, rather than a prerequisite for government assistance. clear ‘regulatory’ ‘intent’ and ‘purpose’ of the conventions. ■■ Recognise that ‘properly sequenced forced eradication’ is incongruent with economic and political integration as the looming threat of military intervention A LONG TERM DRUGS/DRUG undermines trust and establishes POLICY MITIGATION STRATEGY – the government as an external and SUSTAINABLE DEVELOPMENT threatening force.74

As member states increasingly reject the war on drugs strategy, this chapter suggests a In this context, the government’s role is to treat mechanism for replacement: the Sustainable illicit production as an issue, but a relatively Development Goals (SDGs). This is not to suggest low priority one that requires overarching that the SDGs address drug policies in any development issues to be addressed before it great depth. They do not. However, the SDGs can be tackled. provide the most comprehensive international In tackling these issues in coca or opium growing framework to substitute prohibitionist policies Increasing segments regions, governments must grapple with the and instead prioritise sustainable development of the commodity traditional issues of development: fostering ‘ chain, beginning with for member states and the broader international economic integration, sustainable and diverse community. marginalised coca livelihoods, security, rule of law, etc. None of and opium producer For example, in the case of peace building in these can progress if the government sets an communities, should Colombia, the government faces the continued end commodity as its key target: i.e. whether be decriminalised. existence of illicit crop economies, which farmers are growing the only crop that sustains Particularly when sustain poor, marginalised and conflict ravaged them in the immediate term. Meanwhile, the that decriminalisation communities with virtually no viable alternative. impacts on consumer countries are minimal and works with the In this context, issues of supply reduction must thereby render the policy choices additionally implementation of take a back seat to the SDGs. Further, it should not unjustifiable. Most of the price inflation that the SDGs and has no be considered an ‘alternative development’ issue: is credited with dissuading consumption in demonstrable impact it is a sustainable development issue. ‘Alternative consumer countries75 comes from the parts of on consumer development’ represents a particularly the commodity chain which require the greatest country prices. problematic framework as it segregates entire financial and political capital to maintain – communities from regular development transhipping and crossing borders. Farm gate ’ 16 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 17

prices of coca and opium represent an selective prioritisation of specific aspects direction seems to be untethered to any almost negligible proportion of end market that could potentially be implied by the clear strategic reality. Instead, it seems it prices. Marginal shifts in production, unless treaties. It further rests on its prioritisation is a debate which fixates on symptoms of a massive and sustained macro shift,76 have above all other development, welfare and policy inadequacy rather than causes. Again, no impact. Therefore, policies geared toward health-based policies or any real reference one could think of the SDGs: the goals and impacting on production induce major to human rights. Under such a reading, the targets came first. The metrics and indicators hardship on vulnerable populations with no system is not a ‘straightjacket:’ it is simply second. It seems in drug reform the notion is discernible outcomes. being implemented in a particularly bizarre, to reverse engineer policy goals by tinkering ineffective and unjustifiable manner. with policy evaluation tools. Meanwhile, there is broad academic recognition that decriminalisation is a policy That the treaties suggest member states Others suggest new metrics and indicators imperative for demand-side policies.77 work to suppress illicit (undefined) will be a useful mechanism to engage the This is now extending to the supply side. ‘non-medical and non-scientific’ use by broader development community. This Beyond UNGASS, increasing segments (undefined) mechanisms, does not therefore seems a reasonable goal, however, some of the commodity chain, beginning with equate to forced eradication, militarisation, caution is needed. Alternative development marginalised coca and opium producer widespread criminalisation or any of the emerged in a similar manner - as a softer form communities, should be decriminalised. other ‘pigheaded’78 implementations of of supply side policies. Its origins trace back Particularly when that decriminalisation international drug policy. The ‘war on drugs’ to the 1930s and 40s, and since then it has works with the implementation of has always been about interpretation, always been seen as the ‘new wave’ of liberal the SDGs and has no demonstrable implementation and resource allocation. drug policy that just requires commitment impact on consumer country prices. The escape from the ‘war on drugs’ will and funding. similarly rest on interpretation (flexibilities), Alternative development has in fact become implementation (evidence or ideology) one of the most ineffective and unjustified and resource allocation (public health and policy interventions in the field and is subject CONCLUSION human security over incarceration and to the same displacement ‘balloon effect’ as policing). eradication policies. Further, it becomes a A myriad of political, diplomatic, economic, mechanism to sustain prohibitionist policies realpolitik, irrational, moral and legion other by appearing to do ‘something’ about forces have brought international drug METRICS AND INDICATORS supply reduction regardless of whether it is policy to where it is today. An inflection point ineffective or harmful. It thereby results in occurred over the last decade, which drove policy makers viewing it as a soft fall-back global drug policies more quickly toward a To walk into a discussion on the direction from repressive policies. Frequently, policy new normative international framework. The of drug policy in any meeting is to walk in makers have oscillated between damaging complex political and economic forces which on a discussion of the need for new metrics, and ineffective eradication policies and buttress the system have begun to shift. indicators or in some circles, for new data. ineffectual and wasteful alternative However, UNGASS demonstrates that change The assertion is rarely followed by any development policies: meaning that will be evolutionary, not transformative; ad tangible elaboration of actual metrics and genuinely development-oriented policies hoc, messy and legally ambiguous, not clear, indicators. Further, the role of metrics and never achieve a foothold. Similar worries coherent and legalistic. This is as one would indicators in a broader reform strategy, should be held about the emerging fixation expect with any issue within the realm of itself usually lacking, is never addressed. The on the metrics debate. international relations. assumption appears that: fundamentally irrational policies can be made more rational Other contributions to this report offer Overall, the SDGs offer a clear pathway to through more effective monitoring and attempts to elaborate some clear metrics a ‘development first’ approach to drugs. implementation. that policy makers should incorporate. This They allow for positive action on the key discussion is meant merely to highlight issues that mitigate or worsen issues of drug Undoubtedly there are marginal changes the dangers of metrics becoming a non- policy: violence, poverty, corruption and that can be made. But the idea that new discussion about a non-solution to the so on. Further, history highlights that the metrics and indicators are the way to reform problems of bad drug policies. current global strategy rests on an extremely global drug policies in a less prohibitionist . 16 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 17

Notes

1 Thanks to A. Zajaczkowska 11 See, e.g., Vanda Felbab-Brown’s 22 Discussions of ‘quasi-medical’ opium for providing feedback on the contribution to this report. use; contingency of policy change first draft on this paper. on suppression in surrounding 12 See Jonathan Caulkins’ territories; the need for development- 2 J. Collins, ed., Ending the Drug contribution to this report. first approaches and shifts in types Wars: Report of the LSE Expert Group 13 M. A. R. Kleiman and J. A. Ziskind, of opium maintenance represent on the Economics of Drug Policy ‘Lawful Access to Cannabis: Gains, some of the clearest examples (London School of Economics and Losses and Design Criteria’, in Ending of this. See: Collins, ‘Regulations Political Science, 2014), http:// the Drug Wars: Report of the LSE Expert and Prohibitions: Anglo-American www.lse.ac.uk/IDEAS/publications/ Group on the Economics of Drug Relations and International Drug reports/pdf/LSE-IDEAS-DRUGS- Policy, ed. J. Collins (London School of Control, 1939-1964’, pp.38–100. REPORT-FINAL-WEB01.pdf. Economics and Political Science, 2014). 23 CND: Third Session – Report of the 3 S. Pelley, ‘A New Direction on Drugs’, 14 For an overview of the international UK Delegate, 2 June 1948, BNA- 60 Minutes, 13 December 2015, drug conventions see: J. Collins, ‘The FO371/72915. Cited in: Ibid., p.183. http://www.cbsnews.com/news/60- International Drug Control System’, minutes-a-new-direction-on-drugs/. 24 W. B. McAllister, ‘Reflections on a ed. J. Collins Governing the Global Century of International Drug Control’, 4 This paper dates the ‘war on drugs’ Drug Wars, LSE IDEAS Special Reports, ed. J. Collins, Governing the Global Drug era from the declaration of the war on 2012, http://www.lse.ac.uk/IDEAS/ Wars, LSE IDEAS Special Reports, 2012. drugs, 1971, to the UNGASS in 2016. publications/reports/SR014.aspx. 25 Report by British Delegate, CND 4th 5 As this paper went to press, the term 15 M. Jelsma and D. R. Bewley-Taylor, Session, 20 June 1949, Cited in: Collins, ‘flexibility’ seemed likely to appear ‘The UN Drug Control Conventions: ‘Regulations and Prohibitions: Anglo- in the official UNGASS ‘outcome The Limits of Latitude’, Series on American Relations and International document.’ Some commentators Legislative Reform of Drug Policies Drug Control, 1939-1964’, p.200. interpret ‘treaty flexibilities’ as (Transnational Institute and public health oriented approaches International Drug Policy Consortium, 26 Ibid., p. 51. grudgingly permitted within 2012), http://www.tni.org/sites/www. 27 This is similar to recommendations for the treaties, but against their tni.org/files/download/dlr18.pdf. cannabis regulations made by Kleiman prohibitionist intent. This paper 16 Expressed by a number of policy actors and Ziskind, ‘Lawful Access to Cannabis: rejects this reading and construes in public and private discussions. Gains, Losses and Design Criteria’. flexibilities as implementations which were previously viewed as outside 17 One could think of an analogy of 28 L. Minute, ‘Notes on Policy of Opium mainstream interpretations of the prohibitions around intellectual Prohibition in Burma, January treaties during the ‘war on drugs’ era, property laws. International regulations 1944; Letter, Lindsay to McGuire, 27 but are now increasingly accepted – (and prohibitions) on intellectual November 1943’, cited in: Ibid., p.84. e.g. the US State Department’s rationale property theft would never be read as 29 Quoted in: Ibid., p.51. for selective federal enforcement carte blanche for extreme policing and of cannabis prohibitions: see W. R. human rights degrading responses to 30 For extensive elaborations of this view, Brownfield, ‘Trends in Global Drug those involved. Similar comparisons see: File: Control of Opium Smoking Policy’ (New York, 9 October 2014), could be made for piracy, whereby a in Burma, Cited in: Ibid., p.87. http://fpc.state.gov/232813.htm. policy decision to enact an aggressive and grossly disproportionate military 31 J. Collins, ‘Breaking the Monopoly 6 J. Reinl, ‘The Paradox of War on Drugs response in all cases is somehow System: American Influence on the and Marijuana Legalisation’, Al Jazeera, construed as a requirement of British Decision to Prohibit Opium 10 January 2016, http://www.aljazeera. international law. Such a logical fallacy Smoking and End Its Asian Monopolies, com/indepth/features/2016/01/ is readily apparent in this case, but 1939-1943’, (Forthcoming). paradox-war-drugs-marijuana- seems lost in drug policy discussions. legalisation-160109182606156.html. 32 Collins, ‘Regulations and 18 Private discussions. Prohibitions: Anglo-American 7 See Francisco Thoumi’s Relations and International Drug contribution to this report. 19 For example, the recognition that Control, 1939-1964’, p.148. some Latin American governments 8 J. Collins, ‘Regulations and Prohibitions: had simply never criminalised drug 33 Ibid., p.196. Anglo-American Relations and use appeared almost to come as a International Drug Control, 1939- 34 Ibid., p.98. surprise to some of those debating 1964’ (London School of Economics whether decriminalisation was 35 American Embassy Tehran and Political Science (LSE), 2015), possible under the conventions. to Secretary of State, 31 July http://etheses.lse.ac.uk/3107/. 1945, cited in: Ibid., p.154. 20 A policy literature has emerged 9 See Peter Reuter, Harold Pollack suggesting public health approaches 36 In 1947, the State Department and Bryce Pardo’s contribution to represent a form of ‘soft defection’ from pointed out that ‘the political situation this report for a broader discussion, the ‘regime’, while overt breaks with the in that part of the world and in or Beau Kilmer’s contribution for consensus represent ‘hard defections:’ France’ prevented the US raising the a potentially revisionist take. D. R. Bewley-Taylor, International issue and suggested ‘non-public 10 J. Csete, ‘Costs and Benefits of Drug- Drug Control: Consensus Fractured corrective action.’ Ibid. p.181. Related Health Services,’ in Ending the (Cambridge University Press, 2012). 37 In 1948, the State Department Drug Wars: Report of the LSE Expert 21 Draft Brief for UK Rep, ‘ECOSOC vetoed any criticism of perceived Group on the Economics of Drug Policy, XII’, 6th February 1951, BNA, Mexican inaction of opium growing ed. J. Collins (London: LSE IDEAS, 2014). IOC (51)14, CAB 134/410. citing ‘other negotiations…in several matters of considerable importance, one of which is of great 18 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 19

importance to us from the viewpoint 49 This section is drawn from: J. 63 Single Convention on Narcotic of hemisphere defence’, Ibid. p.171. Collins, ‘Reform Options for Drugs, 1961, Art. 35. UNGASS and Beyond’ (Friedrich- 38 See UN, ‘Commentary on the Single 64 W. R. Brownfield, ‘Trends in Ebert-Stiftung, Forthcoming). Convention on Narcotic Drugs, Global Drug Policy’. 1961’ (New York, 1973), https:// 50 J. M. Santos, ‘Re-Examining the 65 What this chapter highlights www.unodc.org/documents/ Drug Problem Through a Fresh as the international trade treaties/organized_crime/Drug%20 Lens’, ed. J. Collins, Governing regulatory framework. Convention/Commentary_on_the_ the Global Drug Wars, LSE IDEAS single_convention_1961.pdf. Special Reports, October 2012. 66 B. Kilmer et al., ‘Multinational Overview of Cannabis Production 39 Secretary General to US Secretary of 51 B. Ki-moon, ‘Secretary-General’s Regimes’(RAND Europe, 2013), p.x. State, 23 April 1947, Cited in Collins, Remarks at Special Event on the ‘Regulations and Prohibitions: Anglo- International Day against Drug Abuse 67 United Nations Charter, Ch. XVI, Art 103. American Relations and International and Illicit Trafficking’ (New York, 26 Drug Control, 1939-1964’, p.172. June 2013), http://www.un.org/sg/ 68 ‘Señor Subsecretario Del statements/index.asp?nid=6935. Ministerio de Relaciones Exteriores 40 For example, Iran pointed out that Ante JIFE’, 4 February 2014, police had been authorised to enter 52 Private discussions at LSE. http://www.bvcedro.org.pe/ private houses and the Parliament bitstream/123456789/543/9/4377- 53 Remarks by William Brownfield at: was considering the death penalty for DR-CD.pdf. Centre for International and Strategic anyone found smoking opium. CND Studies, What’s Happening in US publicly noted Iran’s measures with 69 United Nations, ‘Commentary Drug Policy at Home and Abroad?, satisfaction. UN CND 2nd Session, on the Single Convention on 6 February 2015, http://csis.org/ ‘Record of the Seventeenth Meeting’, Narcotic Drugs, 1961’. event/whats-happening-us-drug- 5 August 1947, Cited in: Ibid. policy-home-and-abroad. 70 Ibid. 41 US Chief drug diplomat Harry 54 J. Csete, ‘Overhauling Oversight: 71 Collins, ‘Regulations and Anslinger rarely showed up to CND Human Rights at the INCB’, ed. J. Collins, Prohibitions: Anglo-American meetings in the late 1950s or the Governing the Global Drug Wars, LSE Relations and International Drug Plenipotentiary Conference in 1961 IDEAS Special Reports, October 2012. Control, 1939-1964’, p.15. due to the ill health of his wife. 55 Buenos Aires Herald.Com, ‘Mujica 72 See Francisco Thoumi’s 42 The final nail in the coffin was the Blasts UN Official Raymond Yans contribution to this report. Vatican’s ‘fears that this would be used over Marijuana Law’, 15 December against the Cardinals and Bishops in the 73 See David Mansfield’s 2013, http://www.buenosairesherald. Iron Curtain countries’. See: Anslinger contribution to this report. com/article/147539/mujica- to Hayes, 4 April 1961, Cited in: Collins, blasts-un-official-raymond- 74 J. Collins, ‘Drugs and Development ‘Regulations and Prohibitions: Anglo- yans-over-marijuana-law. Policy in Rural Colombia - Results of American Relations and International Fact Finding Mission, December 2015’ Drug Control, 1939-1964’, p.251. 56 ASEAN, ‘ASEAN Leaders’ (London: LSE IDEAS, Forthcoming). Declaration on Drug-Free ASEAN 43 Report of US Delegation to the UN 2015’, 3 April 2012, http://www. 75 J. P. Caulkins, ‘Effects of Prohibition, Conference for the Adoption of a asean.org/archive/documents/ Enforcement and Interdiction on Single Convention on Narcotic Drugs, Declaratin%20on%20Drug%20 Drug Use’, in Ending the Drug Wars: 19 April 1961, Cited in: Ibid., p.250. Free%20ASEAN_Endorsed%20 Report of the LSE Expert Group on 44 Hearst Editorial, cited in: Ibid., p.254. by%20Summit_FINAL.pdf. the Economics of Drug Policy, ed. J. Collins (London: LSE IDEAS, 2014). 45 The Single Convention had already 57 H. Forrester, ‘Russia Seeks come into force in 1964. Collins, ‘The International Anti-Methadone 76 See Beau Kilmer’s contribution to this International Drug Control System’. Coalition Ahead of UNGASS,” Talking report for an elaboration of this point. Drugs, 20 August 2015, http://www. 46 Ibid. 77 As WHO guidelines state: ‘Laws, talkingdrugs.org/russia-seeks- policies and practices should be international-anti-methadone- 47 Former Chief of the League of Nations reviewed and revised where necessary, coalition-ahead-of-ungass-0. Drug Control Service described it and countries should work towards as: ‘a planned economy on a world- 58 Private roundtable discussions at decriminalization of behaviours wide scale…[which] regulates a Wilton Park, November 2015. such as drug use/injecting’, WHO, whole industry throughout the ‘Consolidated Guidelines on HIV world’. B. A. Renborg, ‘The Grand 59 Brownfield, ‘Trends in Prevention, Diagnosis, Treatment Old Men of the League of Nations: Global Drug Policy’. and Care for Key Populations’, 2014, What They Achieved. Who They 60 Vienna Convention on the Law http://www.who.int/hiv/pub/ Were’, UN Bulletin on Narcotics, 1964, of Treaties, 1969, Art. 31. guidelines/keypopulations/en/#. http://www.unodc.org/unodc/ en/data-and-analysis/bulletin/ 61 Kleiman and Ziskind, ‘Lawful 78 Caulkins, ‘Effects of bulletin_1964-01-01_4_page002.html. Access to Cannabis: Gains, Prohibition, Enforcement and Losses and Design Criteria’. Interdiction on Drug Use’. 48 E.g., see discussions of the supply control paradigm highlighted in: K. 62 This section represented this Meyer and T. M. Parssinen, Webs of author’s written submission to: Smoke: Smugglers, Warlords, Spies, and UK All Party Parliamentary Group the History of the International Drug on Drug Policy Reform, ‘Guidance Trade (Rowman & Littlefield, 2002). on Drug Policy: Interpreting the UN Drug Conventions’, 2015. 18 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 19

Re-examining the ‘Medical and Scientific’ Basis for Interpreting the Drug Treaties: Does the ‘Regime’ Have Any Clothes?

Francisco E. Thoumi1

he 1961 Single Convention on Narcotic Drugs has been ratified by 185 SUMMARY countries and the 1971 and 1988 Conventions have received similar support. TThis essay explores the logical consistency of the conventions because, ■■ The 1961 Single Convention on Narcotic despite the strong support to the limitation of drug uses to ‘medical and scientific Drugs has been ratified by 185 countries, purposes,’ they are not defined in the conventions and exclude any contribution of with the 1971 and 1988 Conventions having received similar support. the social sciences.

■■ This essay explores the logical consistency of The International Drug Control System By the end of the Second World War, the conventions since, despite strong support arose from the concern with the the politics of international drug control to limiting drug use to ‘medical and scientific growth of opium addiction during the had changed drastically and the drug purposes,’ these terms are not defined in the Nineteenth Century, mainly in China control system developed by the League Conventions: excluding any contribution of the social sciences. and particularly after the Opium Wars. of Nations shifted to the Economic and At the Shanghai Opium Commission Social Council (ECOSOC) of the UN. ■■ By ignoring other sciences, the international of 19092 the US delegation, supported control system has failed to account for the During the 1940s and 50s, disorder and by China, proposed to limit the use of fact that policy success depends on the illegality of the world opium market policy implementing mechanisms that are opium and other psychoactive drugs to resulted in efforts led by the US to create available in a society. Failure to cooperate ‘medical and scientific purposes.’ Other a new ‘single convention’ to consolidate with the social sciences is equivalent to the countries opposed efforts to restrict their INCB telling countries that policy goals in all existing treaties and international burgeoning pharmaceutical industries global drug control should be complied with norms, as well as to establish a regulatory via international regulation. Meanwhile, independent of any social costs system for global production in order or consequences. colonial powers which produced and to forcibly limit supply to ‘medical exported opium or allowed domestic ■■ Interpretation of the term ‘science’ has and scientific’ needs.4 Interim efforts consumption, argued that some left drug policy mainly in the hands of to restrict global supply, alongside physicians, health and law enforcement traditional or ‘quasi-medical’ uses were stalled negotiations around the ‘single experts, in an effort to de-politicise drug legitimate and that use regulation was a convention,’ resulted in the 1953 Opium policies under the assumption that the better policy than complete prohibitions drug policy makers’ decisions can be made Protocol wherein article 2 asserts that on non-medical and scientific uses.3 using only ‘hard’ sciences and medicine. ‘The Parties shall limit the use of opium The Commission produced a series of This omits any consideration of the social exclusively to medical and scientific factors of drug dependence, illegal drug non-binding recommendations and did needs.’ However, the Protocol was viewed production and trafficking. Anti-drug policies not go along with the American and as a product of diplomatic bullying and based on ‘medicine and science’ may attack Chinese proposal. contributing factors, but not their underlining many member states rejected the explicit social causes. The US pursued that use restriction in limiting of the number of ‘recognised’ ■■ It may be logically possible to accept the conferences in which The Hague producers of opium and other medicines that non-medicinal and research uses of Convention of 1912 and the 1925, 1931 internationally. As a result, it did not come marijuana, such as in Uruguay, comply with and 1936 drug conventions of the League into force in the 1950s, despite US efforts. the conventions if those policies are based on of Nations were negotiated. However, the scientific evidence from both medicine and Meanwhile, under British leadership the US did not achieve its desired result and it the social sciences. The same may be argued ‘single convention’ became viewed as a actually left the 1925 conference because about safe injection rooms. compromise document which could roll of that issue. In the League of Nations, the ■■ Whereas the slogan of the last UNGASS was back the excesses of the 1953 Protocol US only signed the 1931 Convention that ‘A drug free world. We can do it!’, the author and it was agreed at a Plenipotentiary made some advances in the direction of hopes that the slogan of UNGASS 2016 will be Conference in 1961. The US initially ‘a drug free world, no we can’t, but let’s accept limiting controlled drug use. rejected the document as too weak, but the complexity of drug issues and work together to minimise the costs of addiction it found overwhelming support among and all other related social harms.’ member states, coming into force in 1964

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and eventually being ratified by the US in branch of treaty law. It is one of the most The first article of the three drug conventions 1967. This convention was also based on important achievements of the Single defines the important terms and concepts the goal of limiting all controlled drug use Convention that it ended the exceptions used.8 Other definitions concern the UN to ‘medical and scientific purposes.’ Article 4, permitted in earlier treaties, subject only drug agencies and their staff positions. This paragraph c reads: to transitional provisions of limited local list confirms that when negotiating the application and duration.’6 conventions, it was important to clarify what ‘Article 4. General obligations each term meant to avoid ambiguities and This essay explores the logical consistency The parties shall take such legislative confusion. Unfortunately, the interpretation of the conventions because, despite the and administrative measures as may of the conventions depends in a fundamental expressed goal of limiting drug uses to be necessary: way on the definitions of medicine and ‘medical and scientific purposes,’ they are science used, as they are not defined in the [....] (c) Subject to the provisions of not defined in the conventions and current conventions. Meanwhile, the fact that article this Convention, to limit exclusively interpretations exclude any contribution of 4 Paragraph ‘c’ treats medicine and science as to medical and scientific purposes the social sciences. Further, the motivations separate raises doubts whether medicine is the production, manufacture, export, expressed in the preamble are confusing considered a science, because if medicine is import, distribution of, trade in, use because they differ in the various official a science there would not have been a need and possession of drugs’ (highlights by languages of the United Nations. These to mention it separately. the author). issues are analysed in sections II and III.

Section IV explores the commonly used However, the Commentary on the Single concepts of science. These include medicine, Achieving this goal was the main purpose of Convention sheds some light: the Convention as stated in the preamble: ‘basic’ or ‘hard,’ and social sciences. Section V and VI look at the etiology and epidemiology of illegal drug production trafficking and ‘Desiring to conclude a generally consumption and the impossibility to acceptable international convention formulate and implement successful drug ‘The term ‘medical purposes’ has replacing existing treaties on narcotic policies solely based on medicine and ‘hard’ not been uniformly interpreted by drugs, limiting such drugs to medical sciences. The last two sections present a Governments when applying the and scientific use and providing for few conclusions and challenges facing the provisions of the narcotics treaties continuous international co-operation International Drug Control System (IDCS). containing it. Some have prohibited and control for the achievement the consumption of narcotic drugs of such aims and objectives.’5 by all addicts excepting only when necessary to alleviate suffering The Commentary on the 1961 Single during withdrawal treatment; Convention concurs: ‘The object of the ARE THERE LOGICAL FLAWS a number of other countries international narcotics system is to limit IN THE CONVENTIONS AND IN have permitted consumption by exclusively to medical and scientific THEIR INTERPRETATION? persons whose addictions proves purposes the trade in and use of controlled to be incurable to the minimum drugs.’ From the beginning this has been a quantities required to life. There basic principle of the multilateral narcotics The drug conventions implicitly assert that have also been a few cases in which system, although all the treaties providing limiting the use of controlled substances all consumption of narcotic drugs for it authorise some exceptions. The 1912 to ‘medical and scientific purposes’ is the by addicts was prohibited, even in and 1925 Conventions and the 1953 Protocol right way to achieve and protect the ‘health the course of withdrawal treatment. contained provisions incorporating this and welfare of mankind.’7 This formula was The term ‘medical purposes’ does principle. The gradual scope of its application first proposed in 1909 and based on the not necessarily have the same is a characteristic feature of progress in this prevailing belief that scientific advances in meaning at all times and under all medicine and other sciences would enable circumstances. Its interpretation societies to manage and reduce the social must depend on the stage of harms from drug use. Despite the medical science in the particular expressed goal of There is no question that conventions time in question; and not only ‘ should be complied with, but there is also modern medicine, sometimes limiting drug uses to ‘medical and no question that the conventions should referred to as ‘western medicine,’ scientific purposes,’ be clear and logically consistent because but also systems of indigenous they are not defined otherwise they would lead to contradictions medicine such as those which in the Conventions and confusion. To avoid these problems, exist in China, India and Pakistan, and current conventions generally define their most may be taken into account in this interpretations important terms carefully and in this respect connection. exclude any the drug conventions are flawed because The term ‘medical purposes’ contribution of they fail to define their two most important includes veterinary and dental the social sciences. concepts: ‘medical and scientific purposes.’ purposes.’9 In legal parlance, they have a ‘legal void’ or ’ ‘legal gap.’ 20 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 21

These commentaries note that countries the social sciences and give a monopoly to have interpreted the term ‘medical purposes’ the medical establishment to decide what IS THE PREAMBLE CLEAR in various ways, using criteria from modern are the only legitimate uses of psychoactive ENOUGH ABOUT THE medicine but also accepting some other drugs. This however presents a logical MOTIVATIONS FOR THE traditional medical practices and ways to dilemma since the terms ‘medicine’ and CONVENTIONS? treat addicts including some addiction ‘science,’ that are the key determinants of the maintenance, that ‘may be taken into allowed drug uses, are not defined. Thus, it account in this connection,’10 a statement is logically impossible to know if any specific The preamble of any convention informs that is vague enough to require further policy complies with the conventions and about the reasons and motivations interpretation. it is not possible to rule out any policy as that promoted its creation. Then, when ‘unscientific.’ ‘For example, if social sciences conventions formulate policies, they In any case, neither the conventions nor the are sciences, syringe and needle exchange are expected to be consistent with their commentaries make any effort to define and drug injecting rooms, that are based on motivations, but the 1961 Single Convention medicine and science. One may speculate empirical evidence (that social sciences can is confusing in this regard. The preamble about the reasons why: provide) about their social costs and benefits, starts: ‘The Parties, concerned with the ■■ Perhaps it was assumed that might well comply with the conventions.’ health and welfare of mankind.’ However, the everybody clearly knows what But if the social sciences are not scientific, Spanish and French versions are different: medicine and science are and there such policies could be rejected. ‘Las Partes, preocupadas por la salud física is no need to define them. y moral de la humanidad’ and ‘Les parties, ■■ Perhaps because those are very soucieuses de la santé physique et morale de complex concepts that could have Conventions l’humanité’ which translates as ‘The parties not been discussed or defined generally define concerned with the physical and moral adequately in a political document ‘ their most important health of mankind.’ Revising the Russian, of a multicultural and diverse Chinese and Arabic versions, it is found that organisation. terms carefully and in this respect the the prefaces refer to wellbeing and caring ■■ Perhaps because the adequate drug conventions for human health and welfare. Article 40, interpretation of the conventions did are flawed because paragraph 1 of the Convention asserts that not require such definitions. they fail to define ‘This Convention, of which the Chinese, ■■ Perhaps because drug policies their two most English, French, Russian and Spanish texts should be decided only by important concepts: are equally authentic.’13 The 1971 Convention consensuses emanating from ‘medical and on Psychotropic Substances in English, medicine, but accepting the use of scientific purposes.’ French and Spanish have replicated those psychoactive substances in ‘hard assertions about their motivations. sciences’ research programmes. ’ The preambles of both conventions present an apparent contradiction between the I am sure that there could be other motivations expressed on the one hand in hypotheses, but in my experience with those Arabic, English, Russian and Chinese, and The denial of scientific status to the social who have participated in the interpretation on the other in French and Spanish: the and other non-basic sciences is not particular and implementation of the conventions I main motivation expressed in the former to the interpretation of the conventions. have found the last hypothesis is likely to group was the welfare of mankind and in For example, Keith Humphreys and Peter have prevailed as many of them implicitly the latter two languages was the moral Piot argue that factors beyond ‘scientific assume social and other ‘soft’ sciences are not health of mankind. It may have been that evidence’ should be taken into account in sciences and should not be taken seriously in 1961 the term ‘welfare’ in English had drug policy formulation and implementation because they are simple speculations.11 a moralistic connotation, in which case and that ‘economics research helps policy Thus, drug policies should be formulated by there would not have been a contradiction. makers determine the efficacy of policy ‘hard’ scientists and physicians. The logic of However, after reviewing several dictionaries interventions.’12 The implication of their this position is simple: medicine knows how and encyclopaedias, in their definitions of argument is simple, drug policies should psychoactive drugs negatively affect the welfare there were no references to morals.14 consider economics and other social factors, brain and the central nervous system and The fact is that ‘welfare’ and ‘moral’ are but economics is not a science. However, this knowledge gives toxicologists and other not synonymous and their meanings vary they do not specify why economics is not doctors, supported by other ‘hard’ sciences, drastically across societies. That is why to a science or how economics’ contributions the power to formulate drug policies for the clarify the conventions the same term should should be taken into consideration. whole of humankind. It is as if physicians, be used in English, the language in which the This would allow policy makers to pay who are used to decide which drugs their conventions were negotiated and in other lip service to economic factors without patients should and should not take, should UN official languages. Furthermore, that term having to explain how they take them into also decide for all of society. should also be defined. Besides, if a definition consideration. Since economics is perhaps of morals is used, the Convention is arguing Whatever the reasons may be, the real issue the social science that has advanced the that there is a concept of morality that can is that the agencies of the UN have not most in the application of modern scientific be applied globally, which is impossible defined ‘medical and scientific purposes’ and methods, one may conclude that the other to agree on. If the common definition of have interpreted the drug conventions from social sciences are not sciences either. a perspective that rejects the legitimacy of welfare is used, drug policies would be a lot more flexible than if the purpose was moral 22 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 23

as it would allow the use of rigorous social and economic cost-benefit analyses wherein results cannot be predicted a priori, to Table 1. Definition of science determine whether a drug policy improves Dictionary of the Royal Academy of Cambridge University Dictionary or harms welfare. the Spanish Language (23rd. edition, (online) author’s translation)

1. Body of knowledge obtained 1. The systematic study of the by systematic and structured structure and behaviour of the WHAT IS SCIENCE? ARE THERE observations and reasoning from natural and physical world or ANY SOCIAL SCIENCES? which it is possible to deduce knowledge obtained about the general principles and laws. world by watching it carefully and experimenting. Since the conventions do not define science, 2. Erudition. 2. Sciences are also particular areas of Table 1 presents the definitions in the 3. Skills, mastery, knowledge about science, such as biology, chemistry, dictionaries of Cambridge University and the something. Royal Academy of the Spanish Language.15 and physics. 4. Body of knowledge relative to exact, 3. Science also refers to subjects which These definitions show that the attempts physics, chemistry and natural are studied like political science, to define science, besides trying to answer sciences. the question of what science is, have also computer science. developed systems to classify sciences and Science-fiction: Literary or scientific knowledge. The contrast between cinematographic genre whit a content the definitions of the two dictionaries is based on hypothetical future technical striking. The Cambridge University Dictionary and scientific achievements. limits science to what could be considered Infused science: 1. Knowledge received as modern sciences emanating from the directly from God. 2. Knowledge that is Enlightenment, while the definition of the not acquired through study. Royal Academy of the Spanish Language Pure sciences: The study of natural covers also pre-modern fields such as infuse phenomena and other aspects of and occult sciences, which fall into the knowledge studied without regard of category of ‘epistemological obstacles’ to their applications. the development of modern sciences and scientific knowledge.16 Exact sciences: mathematics. The attempts to classify sciences are Human sciences: sciences like history, innumerable and result in a great variety philosophy and philology that study of groupings. The following is presented to diverse aspects of human thought and illustrate this point: activity. ■■ Natural sciences: physics, chemistry, Natural sciences: those whose object ecology, oceanography, geology, is the study of nature such as geology, meteorology, human biology and botany, zoology, etc. Sometimes physic botany. and chemistry are included. ■■ Social sciences: anthropology, Occult sciences: Mysterious knowledges archaeology, business administration, communication, and practices such as magic, alchemy, criminology, education, government astrology, etc., that since antiquity have (political science), linguistics, pretended scrutinise and dominate the international relations, psychology, secrets of nature. sociology, economics, law, history Social sciences: those like economics, and geography. sociology and anthropology that deal ■■ Formal sciences: decision theory, with social human activity. logic, mathematics, statistics, systems and computer theories. The art of Poetry (‘ciencia Gaya’ in Spanish) ■■ Applied sciences: all engineering fields, applied mathematics, applied physics, medicine and applied computing. 22 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 23

The definitions and classifications of science show Current policy supporters implicitly assume: that there are many possible definitions of science and also that the term ‘science’ does not apply only 1. That current policies have been formulated Without clearly to the fourth definition of the Royal Academy of based on science. ‘defining the terms the Spanish Language: ‘Body of knowledge relative ‘medical’ and to exact, physics, chemistry and natural sciences,’ 2. That science provides the models and ‘scientific’ in the which is perhaps close to what some scientists would instruments to fully understand drug conventions, it is refer to as ‘basic’ sciences. This is why without clearly phenomena. logically impossible defining the terms ‘medical’ and ‘scientific’ in the to claim that there conventions, it is logically impossible to claim that 3. That there is a consensus about the is a unique way to there is a unique way to interpret them. Furthermore, interpretation of the evidence. interpret them. to be logically consistent, any interpretation of the conventions should spell out which definition of 4. That science also provides the knowledge science is used. necessary to go from the scientific models to ’ I propose that in order to decide if an academic socially adequate policies. discipline is a science and whether it should be considered in the conventions on the same footing Critics concur with the last three assumptions and as modern medicine, two questions should be differ only on the first one: from their point of view, answered positively: first, is the knowledge in that current policies have disregarded many scientific discipline obtained through modern scientific advances and significant evidence. They also methods? That is through methodical and structured point out: observation, reasoning and empirical testing techniques. And second, is that knowledge relevant 1. The weakness of some of the medical studies for drug policies? used to support some of the measures taken Drug policy issues involve many academic in the Single Convention. For example, the disciplines: medicine, public health, law, report of the Commission of Inquiry on the criminology, law enforcement, chemistry, Coca Leaf17 would not meet today’s scientific economics, finance, sociology, political science criteria and was a highly politically motivated (government), international relations, statistics, document.18 Besides, a summary of the agronomy, anthropology, environmental sciences, Commission’s report asserts that ‘It does not history, among others. The issue is whether these at present appear that the chewing of the disciplines were developed following modern coca leaf can be regarded as a drug addiction scientific methods. in the medical sense.’ But despite finding that coca chewing has deep social reasons rooted In 1909 many of these disciplines were weak and in Peru and Bolivia’s social structures and undeveloped compared to physics and chemistry, history, still recommended that coca chewing which were also grossly undeveloped compared should be banned: ‘since chewing coca is not to their current state. Since then the development an isolated fact, but the consequence of a and complexity of universities and research centres number of unfavorable social and economic across the world has grown exponentially and the factors, the solution of the problem involves fields of knowledge became increasingly specialised. two fundamental and parallel aspects: firstly, Concurrently scientific research methods advanced the need for improving the living conditions in virtually all fields. Social sciences have made of the population amongst which chewing great strides. They have applied analytical research is a general habit and secondly, the need for methods and developed new models and empirical initiating simultaneously a governmental testing techniques. In some cases, like experimental policy to limit the production of coca leaf, economics and psychology, the use of research to control its distribution and eradicate the methods previously used only in the so called ‘hard’ practice of chewing it.’19 or ‘basic’ sciences, has become the norm. In medicine itself, neuroscience virtually did not exist in 1961 2. That the efforts to repress drug consumption and its findings are not reflected in the Convention. and eliminate its supply do not consider Not surprisingly, both supporters and critics of the the evidence on their social, economic IDCS insist that their positions are based on science and environmental consequences, which and that they want drug policies based on ‘science frequently are dismissed as unintended and and evidence.’ attributed to the drug production, trafficking and consumption that the anti-drug policies are combating.

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Interestingly, both policy supporters and policy THE IMPOSSIBILITY TO FORMULATE critics are convinced that they are objective and AND IMPLEMENT SUCCESSFUL I propose that in can formulate drug policies rationally without DRUG POLICIES SOLELY BASED ‘order to decide if an interference from their emotions and intuitions, that academic discipline is, from their political beliefs and inclinations. ON MEDICINE AND SCIENCE is a science and whether it should be considered in The drug conventions assume that successful THE ETIOLOGY AND EPIDEMIOLOGY the Conventions on international drug policies can be formulated and the same footing as OF ILLEGAL DRUG PRODUCTION, implemented solely based on medicine and science. modern medicine, TRAFFICKING AND CONSUMPTION This assumption implies that medical doctors, two questions supported by scientists, mainly chemists, biologists should be answered and other professionals from the ‘hard’ sciences, positively: first, is In most instances, cause and effects relationships should have monopoly power to decide what uses the knowledge are clearly established in the ‘hard’ sciences like the controlled drugs may have across humankind. in that discipline chemistry and physics, but when psychoactive drug That is, that humans may not ingest controlled obtained through production, trafficking and consumption are tested psychoactive drugs under any circumstances, modern scientific empirically no such relationships are encountered. except for purposes approved by doctors. Thus, methods? That is Medical epidemiology studies show that drug recreational, experimental, religious, social and through methodical addiction vary substantially among societies.20 In similar uses are absolutely prohibited and UN and structured some cases, genetics plays an important role, like in documents refer to them as abuses. This implies observation, alcohol addiction among some native communities that the international control system has had the reasoning and in North America, but in all cases the importance of goal of a world without drugs, except when they empirical testing social factors is very substantial. In the cases of drug are used to cure illnesses and do research. Because techniques. And production and trafficking of illegal substances it is of this, those in the professions of medicine, the second, is that not possible to argue that genetics has played a role police services and the justice system have ended knowledge relevant in the development of the illegal drug industries. In up acting as public policy experts formulating and for drug policies? all these cases there are no direct cause and effect implementing policies with a very narrow view that relationships. disregards the social etiology of drug production, All epidemiological studies have identified trafficking and consumption. ’ contributing and protective factors, but no direct By ignoring the social and other sciences, the causal factors. There are many social factors that international control system has failed to take into contribute to drug consumption: broken homes account a fundamental public policy fact: policy and single female parents, school failure, poverty, success depends on the policy implementing social exclusion, pressures to succeed in business mechanisms that are available in a society. Medicine and professions, having received extensive medical can determine the effects of drug use on the human treatment with addictive drugs, etc. Many others are body but it cannot prevent addiction and prohibiting protective like good loving families, strong religious social uses of addictive drugs is not medicine, it is participation and factors that are the inverse of the an act that falls in the realm of social sciences. The contributing ones. These factors are used to develop failure to cooperate with the social sciences in the risk profiles of vulnerable people, but most people formulation of drug policies is equivalent to have that fit those profiles do not become addicts or drug the INCB tell countries: ‘this is the policy goal that users. Risk factors simply increase the probability you accepted when you signed the conventions, it is that a particular phenomenon occurs like the your problem to comply with it, independent of any probability that a person will become a drug user or costs, benefits or social consequences and it is our an addict. However, they are not functional causes job to induce you to comply.’22 in the sense of mathematics and basic science such Drug production, marketing and consumption that drugs (D) are a function of X, Y and Z such that it present multidimensional complex problems that could be argued that D=f(X, Y, Z). may not be solved with solutions coming from Epidemiological social studies reach similar results; one discipline. Any solution to the social problems they identify contributing and protective social of addiction cannot be formulated by a group factors for and against engaging with illegal drugs solely consisting of, physicians or economists and other criminal activities. The great difference in or sociologists or policemen, etc., no matter how the prevalence of drug production, trafficking and scientifically rigorous their methods. Yet, despite a consumption across countries shows that there are consensus about the complexity of psychoactive some societies that have a higher risk of developing drug-related phenomena, the great majority of criminal activities and drug consumption than policy makers and analysts involved do so from others. That is, as with individuals, every society a partial perspective influenced by their narrow has a degree of vulnerability determined by academic and professional training. its social structures and formal and informal norms (institutions).21 24 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 25

Every academic discipline has a subject of study, that has no particular analytical base or theoretical tackles some specific problems and develops a background (of the kind that basic research paradigm used to solve them.23 In the physical provides). In this sense medical science that deals The international (‘hard’) sciences, consensus is relatively easy to with changing bodies and minds, is a prototypical ‘control system has obtain and there is little controversy: most scholars policy science. It is estimated that about half the had the goal of a agree how things should be done. In the ‘soft’ social information physicians employ has no basis in world without drugs, sciences it is more difficult to build consensus, but it biology, chemistry or any other science, but rather except when they is possible. However, when consensus is achieved, it is based on an accumulation of experience. This are used to cure its acceptance is limited within the paradigm of knowledge is passed on from one medical cohort illnesses and do each discipline and it does not necessarily extend to another, as ‘this is the way things are done’ and research. Because to other fields of knowledge.24 ‘they work.’25 of this, those in the professions of Within all academic fields there might be an Furthermore, in many cases a purely rational medicine, the police agreement on the need to use modern scientific approach to decision-making is not practical. services and the methods, but they disagree about the relative Everybody has to make innumerable decisions justice system have importance of each one of them, e.g. inductive vs. every day. Just going to the supermarket requires ended up acting deductive, quantitative vs. qualitative methods. people to decide among many items to buy and as public policy They also have great differences among their goals, a rational choice among 30 cereals would require experts formulating that may conflict with those of other fields because to gather information about daily or weekly and implementing they tend to reflect the particular world view consumption, the size of the weight and volume of policies with a (Weltanschauung) of each discipline. Physicians the cereal in each box, the type of each cereal, its very narrow view may support the limit of drug use to ‘medical and fat and sugar content, its price per ounce, etc. Then that disregards the scientific purposes’ but economists or sociologists you’d also need a mathematical model, feed all the social etiology of may argue that the implementation of that policy, information to a computer and arrive at a ‘rational drug production, through strong law enforcement actions, would decision.’ This is clearly impractical and that is trafficking and destabilise the economy and social structures of why everybody learns to simplify those decision- consumption... a country and lead to violence. Each group would making processes. Modern psychology shows the international argue that they are arriving at their conclusion empirically, that people learn to use heuristic short control system applying scientific methods and analysing the cuts, that use sentiments, like brand and store has failed to take same evidence as the others. These divergences loyalties, to bypass reason. These work reasonably into account a result from differences among academic fields in well most of the time.26 what is considered evidence and the way to analyse fundamental public The pretention to formulate policies based only it, indicating that a purely ‘scientific’ evaluation of policy fact: policy on ‘medicine and science’ is an attempt to de- any policy is always questionable by those outside success depends politicise policy making which is an oxymoron.27 the paradigm from which it was formulated. on the policy Policy making is fundamentally a political process implementing A deeper problem arises from the fact that most in which policy proponents present a list of reasons mechanisms that humans find it difficult to make decisions based to justify a particular policy.28 are available in solely on scientific evidence and reason, even Another interesting issue is whether a a society. though they all claim to be rational. For example, consensus ‘based on medicine and science’ is late nineteen and twenty century Marxist and sufficient to produce successful drug policies. Neoclassical economics were developed under the There is no question that medicine should ’ assumption of the ‘homo economicus,’ who has the inform policymakers, but consensuses among capacity to always make rational decisions. Over professionals are just educated opinions and are time it became clear that they failed to explain akin to elections and elections never prove that many real life economic behaviours. Today’s the best candidate was chosen, they only prove behavioural sciences have made great evidence that a particular candidate received the most based strides that show the influence of sentiments votes, e.g. a consensus within WHO and PAHO and the individuals’ life experiences on personal may prove that most physicians in those agencies decisions, factors that the ‘homo economicus’ of think that non-medical drug uses should be the traditional economic models would consider prohibited and a consensus among free-market irrational. economists proves that most of these economists Medicine provides another good example: believe that the marijuana market should be ‘although understanding the causes of a quite free. But a consensus does not demonstrate phenomenon, which successful basic research that the consented policy may be implemented does, is helpful in formulating policy, often a large successfully without rigorously considering the amount of other information that is structured in a financial, political, cultural, religious and other like different manner best serves policy makers. Policy constraints that every society may have. makers draw on a large amount of information 26 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 27

Once the limit of drug uses to ‘medical and scientific purposes’ was enshrined in the 1961 SOME CONCLUSIONS It may be logically Single Convention, it was interpreted as a ‘possible to accept prohibition for all non-medicinal and research that the policies of uses which was based on the belief that medical The international drug control system is based on the Uruguay, and the doctors had the power to decide drug uses for premise that addictive psychoactive drugs must be States of Colorado all of humankind. This measure implicitly seeks used only for ‘medical and scientific purposes.’ This and Washington an ideal world without drugs, which could be premise was formulated first at the 1909 Shanghai that have allowed a worthy goal according to some moral codes. Opium Commission. The Conventions of 1912, non-medicinal and The prohibition of all non-medical and research 1925, 1931 and 1936 accepted this use restriction research uses of uses has been a fascinating experiment in social with different exceptions, and by that time the marijuana comply engineering that pretended to de-politicise drug 1961 Single Convention generalised its application with the conventions policies but that to succeed required every Party to all controlled drugs. The consensus was almost if those policies are to the Conventions to commit very large amounts universal and the terms ‘medical’ and ‘scientific’ were based on scientific of resources to prevent people from using drugs not defined in the Convention, despite it having a evidence from both and if they already use them to prevent them from long list of defined terms. This presents a problem medicine and the becoming addicts, and if they are addicts to treat, when trying to interpret the Convention because social sciences. The rehabilitate and resocialise them.29 It would also its two most important concepts are left as if their same may be argued commit Parties to devote large amounts of money meaning is so clear that they do not have to be about injection to control their territories, to fund development defined. rooms in some programmes to prevent the development of illicit The preambles and commentaries to the drug European countries. drug producing and trafficking organisations, to conventions could contribute to clarify those assign more resources to the justice system and meanings, but they do not. Besides, the statement to building jails, etc. The government programmes of purposes in the preambles in English, Russian, ’ required to comply with a commitment to Chinese and Arabic on one hand, and in French eliminate all drug uses different from those with and Spanish on the other, are different. In the ‘medical and scientific purposes’ would crowd former group the purpose is to improve the ‘health out government expenditures in many other and welfare of humankind,’ but in the other two important health, food and nutrition, education, languages it is the ‘physical and moral health of infrastructure, housing, other police and health humankind.’ As argued above the decision about programmes, etc. which policies would meet the ‘medical and In reality, the goal of a ‘world without drugs’ scientific’ requirement vary depending of which is impossible to achieve given the resource purpose is applied. The commentaries mention constraints faced by all governments which that some countries have interpreted ‘medicine’ as frequently result in a ‘beggar thy neighbour’ including traditional medical practices and not only reaction to demand from other foreign countries modern (‘Western’) medicine. what they cannot achieve domestically. For The definitions of science provided by the most instance, Colombians complain that the United recognised dictionaries are extremely diverse. States does not control domestic illegal drug However, the way conventions have interpreted the markets and Americans that Colombia does not term ‘science’ has left world drug policy mainly in the control its territory, crops and drug cartels. The hands of physicians, health and law enforcement institutional and financial constraints required to experts. This has been an effort to de-politicise achieve a world in which psychoactive drugs are drug policies under the assumption that the drug used only for ‘medical and scientific purposes’ policy makers’ decisions can be made using only are so great that such a goal should be only ‘hard’ sciences and medicine, without taking into ‘aspirational’ to be achieved in an ideal society, consideration the social etiology of drug addiction but not for a real one. Confronting this reality and illegal drug production and trafficking. Policy in official international meetings has been very makers are human, not just unfeeling scientists difficult because once an international treaty in love with the beauty found in truth and their is ratified, there are many obstacles to make policy recommendations are always influenced by substantial changes in the policies that it has their own sentiments, life experiences and cultures. ingrained in a society. It is then not surprising The failure to define and clarify the term ‘science’ that the political declarations of the drug control implies that there is no unique way to interpret the agencies periodically reassert their ideal goals conventions. For instance, it may be logically possible and promise that ‘ten years from now we will have to accept that the policies of Uruguay and the States reduced significantly drug production, trafficking of Colorado and Washington that have allowed non- and consumption.’30 This is just kicking the can to medicinal and research uses of marijuana comply the future and dodges the need to confront the with the conventions if those policies are based on complexity of the drug phenomena. 26 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 27

scientific evidence from both medicine and the Contemporarily, the IDCS confronts social sciences. The same may be argued about many challenges: injection rooms in some European countries. Some would argue that such a policy Epidemiological studies show that there are ‘ 1. The need to acknowledge fundamental would lead to a some factors that contribute to or protect against contributions of sciences other than medicine ‘slippery slope’ that drug addiction and illegal drug production to the understanding of psychoactive drug will lead to the and trafficking. These factors only change the issues. The IDCS is a child of modernity that liberalisation of probability that those activities would develop. implicitly assumes that every government is other drug markets, Anti-drug policies based on ‘medicine and science’ sovereign and has the monopoly of territorial like cocaine and may attack contributing factors, but not their control, power, violence and justice in its amphetamine. But underlining social causes. This is why they might country. This implicitly requires that in each the evidence shows achieve some improvements, mainly in the short country there is social cohesion and core of that societies and term, but they will not solve the drug addiction, shared values which identify a nation. This their leaders on the production and trafficking problems. is why the society of all these countries is whole are not stupid. Critics of current policies highlight the illegality called the United Nations rather than the When the evidence of drug markets as the cause of many terrible United Countries. In today’s postmodern clearly shows that social harms. But illegal drug markets are just a world there are many organisations such the balance between contributing factor of those harms, not causes in as large corporations (especially in the the benefits and the the scientific sense. For example, if ‘drugs generate’ pharmaceutical and chemical sectors), NGOs, costs of any policy violence, why does the homicide rates in drug financial institutions, religions, citizen’s turns significantly producing and trafficking countries vary so much groups, criminal organisations, subversive negative, modern in time and space? In these cases, the epidemiology groups, that are stakeholders in drug-related societies react of crime shows clearly that there are some societies policy issues.31 on their own, that are more vulnerable than others and that without the need 2. Illicit drug production and trafficking are legalising drug markets does not take care of the of a paternalistic just some among many profitable illegal underlining social reasons that contribute to make international body activities for criminal organisations. These a society vulnerable to the development of illegal telling them what is organisations’ goals are to obtain profits drug production, trafficking and markets or of good for them and power and they simply use drugs as an many other criminal activities. instrument in achieving these objectives. They, like any modern business, are always ’ seeking to grow and diversify. For instance, the Organization of American States32 METRICS, INDICATORS AND THE IDCS identified 23 broad criminal categories in which criminal organisations are actively making money. Many of those activities may The international drug conventions were be as profitable as drugs and many are less formulated with a particular purpose in mind: risky.33 ‘Desiring to conclude a generally acceptable 3. The world today confronts many social and international convention replacing existing treaties economic ‘bads’ and harms: extreme poverty, on narcotic drugs, limiting such drugs to medical and social inequality and exclusion, greed and scientific use.’ The interpretation of this restriction lack of social cohesion, corruption, trafficking is today being challenged by some American in arms and humans, homicides, fraud, countries that are clamouring for a need to change economic crisis, wars, etc. The conventional anti-drug policy strategies and from some States wisdom is that drugs are a cause of many of in the United States which are sovereign and those social harms. For example, ‘drugs are are not Parties to the drug conventions. As drug the cause of the high number of homicides trafficking organisations increase their power and in Colombia.’ But the evidence points in a control of some territories in Africa and parts of different direction: the relationship among Asia, those countries are likely to join the clamour many of those harms is circular and not for change. causal. Every harm encourages other harms as it increases the probability that a society will develop them. This is why drug addiction, trafficking and production are symptomatic of the structural vulnerabilities of each society and why traditional law enforcement policies based on the police and justice systems cannot eliminate drugs except in extremely authoritarian regimes. But since uncontrolled power corrupts, even in those countries, their 28 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 29

governments tend to become corrupt in the paternalistic international body telling them medium term and their drug policies are likely what is good for them. This is why alcohol The slogan of the to subsequently fail. prohibition failed in the United States but last UNGASS, which has succeeded in some Islamic countries. ‘ 4. The IDCS was inspired by two policy issues: fortunately was not The evidence shows that throughout history how to take care of drug addiction and how part of the political psychoactive drug use has been controlled to deal with the international drug trade declaration, was ‘A mainly by religion, family, clans and other civil (legal and illegal). The conventions focused drug free world. We society organisations. The State as we know it more on addiction than drug trafficking, but can do it!’ It is my is a relatively new social development and it today some countries and other stakeholders hope that the slogan cannot succeed as the main drug controlling question that approach because of the high of the next UNGASS agent without the support from the civil social and economic costs associated with will be ‘a drug free social organisations. some law enforcement efforts, particularly world, no we can’t, against marijuana consumption, crop 7. And to conclude, modern international drug but let’s accept eradication and trafficking organisations. It policy should be part of the broad anti-crime the complexity of would be useful to have a debate about the policies of any country and should also take drug issues and conditions under which a sovereign country into account other concerns such as human work together to might decide to allow non-medical marijuana rights and the environment. However, minimise the costs use. The circular relationship among social drug policies cannot succeed if they are of addiction and all and economic ‘bads’ show that there may be independent of policies dealing with those other related cases in which efforts to eliminate one ‘bad’ issues because of the fact that these are all social harms.’ may induce the growth of many other ‘bads’ interrelated. When the restriction of drug that would result in worse social conditions. uses to ‘medical and scientific purposes’ was first formulated, the world was a lot simpler 5. The debate should also confront the fact that ’ than today and the simple solution adopted modern Public Policy has empirically found was a very powerful idea that was well that when there are circular relationships, received by almost everyone. At that time the policies should be holistic, consider all drugs were perhaps the main international ‘bads’ and attempt to maximise the difference criminal economic activity. Today there are between overall social and economic benefits many more, and both the world and criminal minus costs, not to eliminate one ‘bad.’ From organisations are a lot more complex. the international perspective, there is no The IDCS needs to reflect that complexity question that illegal drug trafficking should because otherwise it will become completely not be allowed. But the argument to impose a useless. After all, it is just ‘soft law’ and there is prohibition on marijuana (or any other drug) not much that can be done to keep a country use through an international treaty, even from trying alternative strategies to confront when a government considers that it will do its addiction and illegal market problems. The more harm than good, is highly questionable slogan of the last UNGASS, which fortunately and goes against the results obtained from was not part of the political declaration, was the application of scientific methods in the ‘A drug free world. We can do it!’ It is my social sciences. Of course this is valid only hope that the slogan of the next UNGASS with a caveat about the need to insure that no will be ‘a drug free world, no we can’t, but social costs are transferred to other countries. let’s accept the complexity of drug issues 6. Some would argue that such a policy would and work together to minimise the costs of lead to a ‘slippery slope’ that will lead to the addiction and all other related social harms.’ liberalisation of other drug markets, like Let’s acknowledge the need to coordinated cocaine and amphetamine. But the evidence drug policies against corruption, organised shows that societies and their leaders on the crime, greed and other social ‘bads’ and whole are not stupid. When the evidence work together with all the stakeholders, to clearly shows that the balance between the ultimately develop better policies to cope benefits and the costs of any policy turns with drug and other harms and build a more significantly negative, modern societies complex and strong IDCS. react on their own, without the need of a 28 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 29

Notes

1 The author thanks the comments of 12 K. Humphreys and P. Piot, ‘Scientific 23 A paradigm is a set of scientific Marcela Anzola and John Collins on Evidence Alone Is Not Sufficient Basis for achievements accepted by a earlier drafts. This essay was prepared or Health Policy’, BMJ 344 (27 February 2012), community of professionals which accomplished by Francisco E. Thoumi in these authors have very strong academic agree on the use of rules and norms of his personal capacity, with his own funds. roots but are not Ivory Tower types. They scientific practices. This consensus is a The opinions expressed in this essay have held high ranking positions in the prerequisite to have a ‘normal science’ are the author’s own and do not reflect Office of National Drug Control Policy among the community members. This the view of the INCB or the Colombian (ONDCP) of the White House, the Veterans ‘normal science’ provides answers to Academy of Economic Sciences. Health Administration and WHO-UNAIDS. a significant number of problems 2 For a historical overview of the evolution 13 Arabic is today also an official T. Kuhn, The Structure of Scientific Revolutions of the international drug control system United Nations language. The Single (University of Chicago Press, 1962). see: J. Collins, ‘The International Drug Convention’s Arabic version was 24 T. Kuhn, The Structure of Scientific Revolutions Control System’, in Governing the World made available at a later date. Drug Wars, LSE IDEAS Special Reports 25 A. Etzioni, ‘The Unique Methodology 14 The following are some of the definitions (London: London School of Economics of Policy Research’, in The Oxford encountered: and Political Science, 2012), 8–9, http:// Handbook of Public Policy (Oxford, ‘the good fortune, health, www.lse.ac.uk/IDEAS/publications/reports/ United Kingdom: Oxford University happiness, prosperity, etc., pdf/SR014/SR-014-FULL-Lo-Res.pdf. Press, 2006), 833–43, pp.833-834. of a person,group, or organisation’ 3 J. Collins, ‘Regulations and Prohibitions: ‘the state of doing well especially in respect 26 D. Kahneman, Thinking Fast and Slow Anglo-American Relations and International to good fortune, happiness, well-being, or (New York: Daniel Kahneman, 2011). Drug Control, 1939-1964’ (London School prosperity ‘ ‘the health and happiness of Economics and Political Science, of people,’ ‘physical and 27 The symbiosis between policy and 2015), http://etheses.lse.ac.uk/3107/. mental ​health and ​happiness,’ politics is so strong that in all the ‘The health, happiness, and fortunes of Roman languages the word for 4 For a historical overview of this time period a person or group’ politics and policies is the same. see: W. B. McAllister, Drug Diplomacy in the Twentieth Century: An International 15 Searching other sources, the interested 28 See Chapter 14 of Thoumi, Debates Y History (New York: Routledge, 2000). reader will find no unique definition and Paradigmas de Las Políticas de Drogas En El similar differences among the sources. Mundo Y Los Desafíos Para Colombia, which 5 See the Preamble in United Nations, deconstructs these and other arguments. ‘Single Convention on Narcotic Drugs, 16 G. Bachelard, La Formación Del Espíritu 1961’, 1961, https://www.unodc.org/ Científico. Contribución a Un Psicoanálisis 29 The prohibition of all non-medical pdf/convention_1961_en.pdf. Del Conocimiento Objetivo (Buenos and research drug uses is analogous Aires: Editorial Argos, 1948). to a policy that in order to eliminate 6 United Nations, ‘Commentary on the malnutrition in the world would require Single Convention on Narcotic Drugs, 1961’ 17 United Nations Economic and Social countries to insure that a nutritious (New York: United Nations, 1973), p.110. Council (ECOSOC), ‘Commission of healthy daily diet would not cost more Inquiry on the Coca Leaf’ (Lake Success, than $0.50 per person worldwide, or a 7 See the Preamble in United Nations, ‘Single N.Y.: United Nations, May 1950). policy that in order to make sure that Convention on Narcotic Drugs, 1961’. all children would grow in two parent 18 P. Gootenberg, Andean Cocaine: The 8 The following is a partial list: cannabis, families would criminalise all extramarital Making of a Global Drug (Chapel Hill: The cannabis resin, coca bush, coca leaf, sex and prohibit divorces worldwide. University of North Carolina Press, 2008, opium, medicinal opium, poppy plant, pp.236-239 ; A. Henman and P. Metaal, ‘Coca 30 This was done in the 1998 Special General poppy straw, narcotic drugs, illicit traffic, Myths’, Drugs and Democracy Programme, Assembly on the World Drug Problem and exports, imports, preparation, production, Debate Papers No.17 (Amsterdam: in the Political Declaration of the 2009 CND. product, special stocks, stocks, territory, Transnational Institute, June 2008), pp.4-5. region, premises, psychotropic substances, 31 A. Clunan and H. Trinkunas, Ungoverned controlled delivery, confiscation, 19 UNODC, ‘Commission of Inquiry on the Spaces. Alternatives to State Authority in seizure, proceeds, transit state. Coca Leaf’, 1950, https://www.unodc.org/ an Era of Softened Sovereignty (Stanford, unodc/en/data-and-analysis/bulletin/ CA: Stanford University Press, 2010), 9 United Nations, ‘Commentary on the Single bulletin_1950-01-01_4_page005.html. analyse these issues in several regions Convention on Narcotic Drugs, 1961’, p.111. of the world. Moreover, G. Duncan, Más 20 To confirm this, it suffices to consult any 10 The Spanish translation of the commentary Que Plata O Plomo. El Poder Político Del UNODC Annual World Drug Report. has a stronger assertion as it reads ‘‘deben Narcotráfico En Colombia Y México (Bogotá: tenerse en cuenta a este respecto’’ (United 21 F. E. Thoumi, Debates Y Paradigmas de Penguin Random House, 2014), is an Nations, ‘Comentarios a La Convención Las Políticas de Drogas En El Mundo Y Los excellent analysis of the power of drug Única de 1961 Sobre Estupefacientes’ Desafíos Para Colombia (Bogotá: Academia traffickers in Colombia and Mexico. (New York: United Nations, 1989), p.121) Colombiana de Ciencias Económicas, 2015). 32 Organization of American States that means that they should be taken 22 Thoumi, Debates Y Paradigmas de Las (OAS), Drugs and Security, Studies into account and adds another possible Políticas de Drogas En El Mundo Y Los on the Drug Problem in the Americas interpretation issue to the Convention. Desafíos Para Colombia, pp.249-251. (Washington, D.C., 2013), pp.24-25. 11 In May 2012 after the second day of the 33 For example, in recent years it is first session I attended as a Member of estimated that illegal mining has the International Narcotics Control Board produced revenues comparable to (INCB) an unquestionable brilliant and those of drug trafficking in Colombia. dynamic Board Member that had been the leader of the Board for two decades, told me that social sciences were not real sciences but simple speculations. It was obvious that I had wasted my life studying social sciences during 50 years! 30 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 31

Regulation of Possession and the Criminalisation of Drug Users in Latin America1

Catalina Pérez Correa, Rodrigo Uprimny and Sergio Chaparro

atin America has, over the last few years, emerged at the vanguard of international efforts to reform drug policy. In 2009, the former presidents of Brazil, Mexico and SUMMARY LColombia co-chaired the Latin American Commission on Drugs and Democracy. The report issued by the Commission urged countries to treat drug use as ■■ Despite the reformist discourse, a health issue and not a criminal one.2 In 2012, the presidents of Colombia, Latin American governments maintain a Guatemala and Mexico called for the UN to host an international conference predominantly punitive and repressive approach to illegal drugs and their on drug policy reforms, which led to convene the special session of the General consumption. Assembly on the world drug problem (UNGASS) in early 2016.3 That same year, ■■ This paper seeks to explain why, despite the Organization of American States (OAS), led by Chilean José Miguel Insulza, the growing consensus that governments published the Scenarios for the Drug Problem in the Americas (2013-2015), in should not seek to criminalise consumption, an effort to ‘open up the path to a new hemispheric dialogue on how to act.’4 drug users remain criminalised. Yet despite the reformist discourse, opened for drug use (which is not formally ■■ The principle of proportionality establishes that criminal law should only be used as a Latin American governments maintain a a crime) by the federal government. last resort. The principle states that a policy predominantly punitive and repressive In addition, during this time 87,746 must: approach to illegal drugs and their use. The criminal investigations were initiated for • First prove a conduct is harmful to criminal justice system is still preferred over possession of drugs at the federal level.7 others, to such degree that it must be the health system as a tool for government Moreover, in Ecuador, between 2007 and determined as a crime. intervention in drug policy. It is primarily 2014 the Public Defender’s Office aided • Second, it establishes that before using through the police, and sometimes the 15,532 people detained for possession.8 criminal law, all other available options military, prosecutors and criminal courts, This paper seeks to explain how, despite (whether formal or informal) must be that states interact with users of controlled evaluated. growing consensus against it, drug users substances in these countries. remain criminalised. The paper analyses • Third, if something can only be prevented through punishment, then the least For example, according to the information the legal mechanisms in place across the intrusive punishment available should obtained by the Research Consortium on region that facilitate the criminalisation of be used. Drugs and the Law (CEDD), in Argentina, users. Using the national studies on drug • If we take this principle seriously, as we 9,414 investigations were recorded for users and state responses published by should to guarantee just and reasonable drug possession for personal consumption CEDD,9 this text explores the existing legal laws, then any deviation from this in 2012 by federal prosecutors around the norms and penal reasoning that explain standard will qualify as an unlawful use of country.5 In addition, in 2008, the province the constant criminalisation of drug users criminal law. of Buenos Aires recorded 7,484 criminal across the region, in countries where the ■■ Possession, in different ways and through investigations for possession for personal use of drugs is actually not considered a different mechanisms, remains a crime, use pursued by local prosecutors.6 This crime. It also analyses some of the moral because the use of illicit substances remains means that both national and provincial and theoretical problems implied in regulated through criminal law even though it is not considered a crime. authorities are engaged in the persecution the current legislation of possession of of drug use through the criminal system. illicit drugs. The paper ends with some In the case of Mexico, between 2009 notes regarding the current metrics and and May 2014, 140,860 individuals were indicators used to evaluate drug policy. arrested and 52,074 investigations were 30 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 31

As the table shows, while no state considers the REGULATION OF POSSESSION use of illegal substances to be a criminal offence, AND OF USE possession is prohibited in all countries to some In some countries, extent or in certain circumstances. In some cases, ‘possession without

like Mexico, Peru or Ecuador, possession for use intent, above certain Although drug use is not a crime in the countries is a crime but not criminally sanctioned under thresholds is a that were studied, possession is always – although in certain circumstances (such as when the amount punishable crime. different ways – considered a crime.10 This results in does not surpass the allowed threshold). In This is extremely the criminalisation of consumers, for consumption Brazil, possession for use is a crime and criminally problematic always involves, at some point, the possession of the sanctioned, although not through imprisonment. because it punishes illegal substance. The only exception to this constant is In Argentina, all possession is a crime, although possession with no found in Costa Rica, where there is a clear and explicit the Supreme Court declared the punishment of further requirement policy not to arrest consumers for possession, as will be possession for use to be unconstitutional, as long of proof of intent, explained further on. as it does not ‘result in a specific hazard or harm to beyond the actual In several of the countries studied, as is shown below, the rights or goods of third parties.’ In Ecuador (see act of possession. possession is tolerated under certain circumstances. Table 4 and 5) recent reforms (in September 2015) This, we argue, Such is the case of possession for personal use where set thresholds to distinguish levels of involvement implies a violation the finality – for personal use – can be either objectively in trafficking at such low levels that any quantity of of the presumption or discretionally determined by prosecutors and/or certain substances can be processed as a trafficking of innocence, the judges. However, even in these cases it is the criminal, offence. In that country, small scale trafficking of principle of ultima not health, authorities who determine if possession heroin, base cocaine, cocaine and marijuana is ratio (last resort) and is for personal use or not. In other cases, for example verified above zero grams. Uruguay, on the other the principle of Argentina and Colombia, possession is not tolerated hand, sets several objective criteria to determine proportionality. under any circumstances. In these instances, the possession for use in the case of cannabis, but Supreme11 and Constitutional Courts,12 respectively, maintains an open (discretionary) system for declared that punishing possession for personal use is other substances. ’ unconstitutional, provided it does not imply a concrete Since every consumer must possess the substance danger or harm to the rights or property of a third party. in order to use it, she must therefore commit the In most countries, possession is normatively crime of possession in order to use. Thus, even in distinguished between: i) possession with intent to the cases where possession for use is not criminally distribute (which can be with or without a commercial sanctioned (but remains a crime), it is through the purpose)13 and, ii) possession without intent to distribute. police, prosecutors and criminal judges that the state This last type can also be distinguished between deals with consumers. Additionally, authorities from possession tolerated for personal use and possession the criminal justice system are the ones to decide that, without having any intention of distribution, is if the person will be charged as a user or a dealer. not tolerated by the law. We will henceforth refer to the This implies that consumers are at constant risk of latter as possession without intent, (in Spanish: posesión being detained, become the victims of extortion or simple, or tenencia simple (as opposed to possession even imprisonment. with intent). In some countries possession without intent, Possession of illicit substances in any of these instances can above certain thresholds, is a punishable crime. have three possible regulations: This is extremely problematic because it punishes possession with no further requirement of proof of ■ the conduct is considered a crime ■ intent, beyond the actual act of possession. This, and is punished we argue, implies a violation of the presumption ■■ the conduct is considered a crime of innocence, the principle of ultima ratio (last but is not punished. resort) and the principle of proportionality. Under ■■ the conduct is neither considered the legal definition of the crime of possession, a crime nor is it punished. consumers are often processed as small-scale dealers and punished accordingly. In some cases, In the countries studied by CEDD, the use of illicit such as in Ecuador, the user has to prove that it was drugs is usually neither a crime nor punished while not his or her intention to distribute (i.e. proving a the different types of possession usually fall within negative), but to consume. In other countries, for the first two regulatory regimes mentioned above. example Mexico, mere possession of drugs in an In addition, imprisonment is often the preferred form amount above the established threshold is enough of punishment. to warrant criminal prosecution, regardless of the Table 1 shows the legal regulation of use and possession circumstances or intent. Other countries only punish in the countries studied. Although the table does not possession with intent to sell or distribute (even if account for all the complexities of each legal framework, distribution is without payment), but even in those it shows that use and possession are always handled cases, people who possess illicit substances for within the criminal sphere even if they are not punished. personal use must be arrested before the possession is declared lawful or without punishment. 32 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 33

Table 1. Is consumption and/or possession of illicit substances a crime?14

country consumption possession Regulation (synthesis)

Argentina No Yes Drug possession for personal use is considered a crime (Article 14 of law 23.737). However, in 2009, the Supreme Court declared that the part of the article that criminalised possession for use is unconstitutional.

Bolivia No Yes Possession for use is a crime, punishable with forced treatment, according to article 49 of law 1008. However, in practice this law is not applied. If a medical examination determines that a person carries more than is needed for his or her personal use, he or she is prosecuted for trafficking (Article 49 of Act 1008).

Brazil No Yes Possession for personal use and possession without intent are considered crimes. Article 28 of law 11.343/06, states that the judge must determine if the substance is for personal use through taking into account, among other things, the nature of the substance, the amount carried and the criminal record of the person. Possession for personal use is criminally punished, although not with prison time.

Colombia No Yes Consumption is constitutionally prohibited, but the Constitutional Court declared that the article from the criminal code that penalised possession for personal use is unconstitutional. The Supreme Court has ruled that possession for personal consumption should not be criminalised even if it surpasses the established dose for personal use.15 Possession without intent is considered a crime.16

Costa Rica No No Possession for personal consumption is not a crime. Possession is only a crime if it is determined that the person’s intent is to ‘distribute, trade, supply, manufacture, develop, refine, transform, extract, prepare, cultivate, produce, transport, store or sell drugs, substances or products referred to in this Act or to cultivate the plants from which such substances or products are obtained.’ (Article 58 of Act 8204) Possession of seeds with the capacity to germinate or of other natural products that produced the referred drugs is a crime and is criminally sanctioned (Article 58 of Law 8204). However, in practice and as a result of the General Attorney’s guidelines, this law is not applied and consumers are rarely detained by police.

Ecuador No Yes Possession without intent is illegal, but when it is for consumption it is not punished (Article 220 of the Organic Comprehensive Criminal Code). Possession without intent is established by threshold amounts.17

Mexico No Yes Possession for personal consumption is illegal, but it is not criminally prosecuted if it is for consumption, provided it does not exceed the maximum thresholds established by the General Health Act, and as long as it is not done in places such as schools or prisons and is one of the substances covered by the General Health Law. Possession without intent above the established thresholds is a criminal offense.

Peru No Yes Possession for use is not criminally sanctioned as long as it is below the established thresholds allowed and the person is not in possession of two or more substances.

Uruguay No Yes Possession is a crime but it is exempt from punishment if the amount is ‘intended for personal consumption.’ In the case of cannabis, the possession of up to 40 grams or 6 psychoactive cannabis plants is legal for personal consumption (Article 7, Law 19.172). Moreover, possession is a crime if the person does not have the corresponding legal authorisation (Article 5, Law 19.172). 32 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 33

The result of this use of thresholds, THRESHOLDS AND CRIME OF In 2014, a Judge in the State of found in Mexico, Ecuador and Peru is the POSSESSION WITHOUT INTENT Guanajuato declared the sanction of criminalisation of an unknown number of consumers who are processed as sellers or possession without intent (posesión micro- traffickers, and who appear in official Although some legislation considers simple) to be unconstitutional statistics as such. possession to be a crime, certain amounts due to considering it being a are permitted or tolerated under established disproportionate response. In this In other countries, like Brazil, Colombia or thresholds deemed to represent personal case, a state prison inmate was Bolivia, legislation or high court judgements use. However, some of these legal systems found with two pills of Clonazepam, have required the evaluation of additional will sanction possession in excess of these a substance commonly used for elements to prosecute and sentence a thresholds without requiring proof of intent panic disorders and anxiety attacks. person for possession. However, even in to sell or distribute, such as in Mexico, Peru The inmate had gone through a this scenario, consumers remain under the (when more than one substance is involved) divorce while being imprisoned sphere of criminal justice institutions, as laws or Ecuador (under the new thresholds and also lost his father, both within require detention of users until quantities established in 2015). This crime is referred to a short timespan. After suffering and/or intent are determined. severe panic attacks, he had begun as possession without intent. Unfortunately, thresholds in the region are to self-medicate Clonazepam to Under this legal definition, any person usually very low, and the amounts often control them. Expert testimonies caught carrying more than the allowed do not correspond to the use and buying included in the file declared that amount of a particular substance is regarded practices of consumers. Table 2 shows the the inmate had a nervous condition as a small-scale dealer and prosecuted for maximum carrying thresholds established in and that the substance lessened that crime. It is not necessary for prosecutors countries covered by CEDD. the attacks he suffered. Although or judges to assess the circumstances or the substance can be sold and In the case of Mexico and Peru, the concrete evidence of the case. In some bought in drug stores with medical thresholds for cannabis are 5 and 8 grams instances, even when there is evidence to prescription, the law establishes respectively. Taking the daily dosage of suggest that possession was for personal any average cannabis consumer into use, judges must sentence for micro- severe penalties for possession of certain medicines without a valid consideration, carrying 5 or 8 grams can trafficking, regardless of the circumstances. be regarded as reasonable. However, if the A case in Mexico illustrates this point: prescription. In addition, since the crime had been committed in a consumer is buying enough for a longer prison this allowed no space for period of time, the amount purchased will most likely exceed the tolerated threshold exemption from the rule. In this and, if apprehended, he or she will likely be case, the judge had no room to processed as a dealer. In the case of cocaine, consider the specific conditions of cocaine paste and cocaine hydrochloride, all the case in the ruling: which proved countries have low thresholds, even for daily that there was no intention to sell consumption. In the case of Peru, if the person or distribute.18 Although the judge is in possession of two or more substances, affirmed that a crime had been possession is criminally sanctioned. committed, she did not apply the corresponding sanctions due to In Ecuador, there are two coexistent these being disproportionate. thresholds.19 The first threshold, shown in table 2, seeks to protect consumers from the criminal law intervention. The second

Table 2. Thresholds established for main substances20

Substance Colombia Ecuador Mexico Peru Uruguay

Heroin - 0.1 g 50 mg - -

Cannabis 20 g 10 g 5 g 8 g 40 g Hashish: 5 g

Cocaine, base cocaine 1 g 2g 500 mg 5g - or cocaine cocaine cocaine hydrochloride 1g 2 g hydrochloride hydrochloride

MDA - 0.15 g 40 mg - -

MDMA - 0.015 g 40 mg - - 34 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 35

threshold, on the other hand (see Table 3), seeks to In other words, harm and culpability are necessary distinguish levels of involvement within trafficking aspects to determine and justify criminalisation and In terms of networks (divided in minimum, medium and high). punishment and pose limits to state intervention ‘criminal law However, the reform created an overlap of the two through criminal law.30 According to Ashworth, ‘the theory, possession thresholds thus exposing rather than protecting harmfulness of a conduct must be judged in terms of without intent users. The new threshold criminalises the possession its effect on valued interests, which may be individual attributes objective of certain substances at the same level that the interest or some form of collective interest.’31 In other culpability to the previous one tolerated (see Tables 3 and 4). Thus, for words, the criteria for determining harm are set by act of possession. example, possession of 0 to 20 grams of marijuana the actual consequences of an action. A necessary This means that today is considered minimum trafficking and is question then, when analysing the criminalisation punishment of punishable from 1 to 3 years in prison. Moreover, of possession of certain substances over a certain any person who possessing 0.1 to 0.2 grams of heroin is considered quantity is: what is the harm caused by this particular possesses illegal medium trafficking and is punishable from 3 to 5 conduct? Is criminal punishment justifiable when no substances above the years. Large scale trafficking is punished with 10 to clear harm exists? 13 years in prison. This new system will probably tolerated thresholds The other element of criminal law highlighted by lead to the criminalisation of users. is justified regardless Ferrajoli is culpability or intent. Intent is a central of the intent to harm. In terms of criminal law theory, possession without part of criminal law and in justifying punishment. As Furthermore, it intent attributes objective culpability to the act of stated by Andrew Ashworth: punishes a conduct possession.26 This means that punishment of any without the existence person who possesses illegal substances above the of actual harm. tolerated thresholds is justified regardless of the ‘The centrality of the culpability requirement intent to harm.27 Furthermore, it punishes a conduct is surely part of the essence of the criminal without the existence of actual harm. According to law: if a person is to be censured publicly ’ Luigi Ferrajoli, the principle of responsibility (blame) by being labeled a criminal and made liable implies that every crime can be attributable to a to the sentence, then the court should be person because of their understanding of the facts satisfied not merely that that person caused and intent to commit a crime.28 Thus, the fact that a consequence but also that he or she did so conduct is considered morally wrong is not enough culpably. Anyone can cause injury, death to warrant punishment. As stated by Nils Jareborg, or damage by misfortune or coincidence, but that should not be enough for criminal

liability, however great the harm. The ‘The measure of blameworthiness of any criminal law should require proof of fault as kind of conduct depends partly on what a condition of imposing censure, let alone values and interests have been infringed punishment that involves restriction or or threatened, and partly on whether the depravation of liberty.’32 conduct involves actual infringement (harm) or creates a danger of such infringement or is related to such infringement in some more distant way (for instance, a breach of a safety rule). But it also depends on the guilt or culpability exhibited by the actor in her conduct.’29

Table 3. New thresholds for Ecuador, narcotic drugs23

NARCOTIC DRUGS (SEPTEMBER 2015)

Heroin Base Cocaine Cocaine Marijuana Hydrochloride Scale Net weight (grams)

Minimum Maximum Minimum Maximum Minimum Maximum Minimum Maximum

Minimum 0 0.1 0 2 0 50 0 20

Medium 0.1 0.2 2 50 1 50 20 300

High 0.2 20 50 2,000 50 5.000 300 10.000

Higher scale 20 onwards 2.000 onwards 5.000 onwards 10.000 onwards 34 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 35

Blame, however, is a subjective condition that requires no need to prove harm. Sodomy laws involves the capacity to foresee consequences. represented a similar situation where certain Thus, most countries criminalise certain sexual acts were deemed as immoral and A necessary question harms caused unintentionally but that therefore punishable. In the case of possession ‘ then, when analysing could be prevented, such as involuntary without intent neither blame nor harm are the criminalisation of manslaughter.33 Also, most countries criminally relevant to justify criminalisation. Possession possession of certain punish actions where there is an intent to cause proves the crime and specific circumstances substances over a harm but no actual harm.34 In these latter cases, are irrelevant, even when they show that certain quantity is: what criminalisation and punishment is justified since possession was for personal use and no harm is the harm caused by if the conduct had been carried out, a concrete can be determined. The result can be viewed as this particular conduct? harm would have been caused. However, the a violation of the right to be presumed innocent Is criminal punishment crime of ‘possession without intent’ criminalises until proven guilty. justifiable when no and punishes a conduct with neither intent nor clear harm exists? A worrisome consequence, especially for harm.35 problematic and inefficient judicial systems, is The difference between subjective and objective criminalisation and imprisonment of an uncertain ’ culpability can show the difficulty for justifying number of individuals that derive from possession the criminalisation of possession without crimes. In 2014, the Argentinean Attorney’s intent. Consider a case of first-degree murder. Office (PROCUNAR) reported 9,414 cases of Premeditation and the act of taking a life are drug possession for personal use by federal justifications for punishment. Punishment is prosecutors around the country in addition to the justified because a person had an intent to harm, cases investigated at the local level.36 In Mexico, so even if the conduct had not been carried between 2006 and 2014, 175,993 investigations out the intent is condemnable. This is a case of were initiated for possession (possession without subjective criminality. Now consider a case where and with intent).37 In Ecuador, between 2007 and a patient dies during an operation. The medic 2014, the public defenders office aided 15,532 could be responsible under criminal and civil people detained for possession.38 law, independently of intention. If negligence Even in countries like Uruguay or Bolivia, is proven, punishment is justified because the where legislation includes the assessment of medic had a duty of care toward the patient that circumstances (not just thresholds), consumers was not fulfilled. In this case, there would be are criminalised and sometimes punished. In objective criminality, which means the conduct is those countries, the intent to distribute or sell reprehensible independently of the intent. is evaluated by judges that are often insensitive The crime of possession without intent implies to consumers’ practices. In the case of Uruguay, objective criminality, thus blame becomes although possession of up to 40 grams of irrelevant in the justification of these cases. The cannabis is tolerated for personal use, other conduct is reprehensible independently of the substances are subject to the judge’s criteria to intention to cause harm. Even more, the crime determine whether possession is for personal use presupposes the existence of harm, and thus or not.39

Table 4. New thresholds for psychoactive drugs in Ecuador25

PSYCHOTROPIC SUBSTANCES (SEPTEMBER 2015)

Amphetamines Methylene Ecstasy dioxyphenethylamine (MDA) (MDMA)

Scale Net weight (grams) Minimum Maximum Minimum Maximum Minimum Maximum

Minimum 0 0.090 0 0.090 0 0.090

Medium 0.090 2.5 0.090 2.5 0 2.5

High 2.5 12.5 2.5 12.5 2,5 12.5

Higher scale 12.5 onwards 12.5 onwards 12.5 onwards 36 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 37

With vague parameters like ‘reasonable quantity,’ it In Latin-American societies, the use of criminal law is up to each judge to decide.40 In Bolivia, maximum is practically tantamount to punishment through Thresholds can be possession thresholds are not legally established but imprisonment; a highly intrusive, violent and costly ‘said to have a dual are instead established in practice and depending state measure. Because of this, criminalisation should effect. On the one on the medical reports prosecutors request from only be used as a last resort (principle of ultima ratio), hand, they serve experts or health authorities. If the medical report when other – less harmful – means have failed, and to limit arbitrary states that the consumer was carrying a few grams for conduct that truly merits the intervention. In this decision-making by more than the amount that he or she should carry sense, regulation of possession must be revised in prosecutors or judges. for personal use, the consumer is prosecuted for the order to protect users of illicit substances from the This can be positive crime of drug trafficking, since micro-trafficking is application of unfair, unwarranted and inappropriate for judicial systems not codified in law in Bolivia. laws, and the proportionality of the response should also be evaluated. undermined by In Colombia, the Supreme Court has developed corruption. However, the doctrine of the provisioning dose to protect when the maximum consumers (in Spanish, dosis de aprovisionamiento). thresholds are low According to this doctrine, if someone is caught they drive perverse with an amount slightly higher than the threshold CONCLUSIONS practices that lead to and it is only for personal use, he/she should not

the criminalisation be punished. However, continued criminalisation Despite the regional ‘decriminalisation’ discourse of users. It becomes motivated the Supreme Court to intervene, consumers continue to be detained, prosecuted easier for police and encouraging the Prosecutor General’s Office and the and even incarcerated in Latin America. This occurs prosecutors to charge police to focus their action against traffickers who because possession, in different ways, remains a a user with possession threaten legally protected goods.41 than to investigate crime, and because the use of illicit substances (and prove) In all, thresholds can be said to have a dual effect. remains regulated through criminal law even micro-trafficking. One the one hand, they serve to limit arbitrary though it is not considered a crime. So while Latin decision-making by prosecutors or judges.42 This America’s discourse is one of decriminalisation of can be positive for judicial systems undermined by drug use, legal practices and norms rely on the use ’ corruption. However, when the maximum thresholds of penal institutions for addressing the consumption are low they drive perverse practices that lead to the of illicit substances. criminalisation of users. It becomes easier for police Understanding the regulation of possession of and prosecutors to charge a user with possession illicit substances is fundamental for understanding than to investigate (and prove) micro-trafficking. In the constant criminalisation of consumers across terms of prosecution indicators, possession cases Latin America. In this text, we analysed different will usually result in easily obtained guilty verdicts, regulations of possession that help understand which implies an incentive to prosecute these cases why users are caught within the penal sphere over more complex (and important) ones. of the law. Particularly, we analyse the case of Perhaps the exception to the analysis presented ‘possession without intent’ as an example of a legal here is Costa Rica, where there are no thresholds mechanism that criminalises users without any moral for personal use, but rather a discretionary model or theoretical justification. based on evidence and mitigating factors found in In Latin America, where police and other penal the commission of a crime. Further, the Attorney institutions are known for often pervasive abusive General’s Office has disseminated guidelines practices, placing the regulation of use and pushing for arrests made for consumption to be possession within the purview of criminal law dismissed.43 This has prevented the arrest of users by exposes drug consumers to violations of their the police meaning that neither use nor possession basic rights, corruption, extortion, physical abuse is criminalised.44 and arbitrary detentions. According to Burgh, According to Von Hirsh, several considerations ‘Punishment involves our doing to people what we are necessary when evaluating the decision to ordinarily think is wrong to do. It seems that, insofar use criminal law as a response to a conduct, as this intuition is disconnected from justice, we such as whether or not; ‘the system has explicitly have a compelling reason to cease acting on it.’46 As rated the seriousness of the crimes? In grading seen in this text, there are few (or no reasons) to offenses, has the rulemaking agency made its prohibit the possession of illicit drugs or worse, to do own conscientious judgment on the merits as to so via criminal law. This is especially true in the case their seriousness? Lastly, has the rule maker given of possession without the intent to sell or distribute. explicit reasons for this seriousness rating?’45 The Today, the regulation of these conducts violates the problem with the crime of possession without principles of proportionality and produces an unjust intent is the impossibility to adequately respond approach to a widespread social reality. With little in to these questions as the evaluation of harm is not its defence, regulation of possession must be revised possible. From a theoretical and moral point of in order to match discourse with reality and as a way view, criminalisation of possession without intent to protect users from the application of unjust and becomes unjustifiable. disproportionate laws and practices. 36 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 37

ON METRICS AND INDICATORS

Metrics and indicators are a structural problem of contemporary drug policies, which often promote the criminalisation of drug users and hinder progress toward a better response to With little in its defence, drug use. We find five main problems with these indicators: ‘ regulation of possession must be revised in order 1. The first lies in the objectives set by current drug policies: reduction of supply or to match discourse with demand. These objectives inform a set of metrics that solely focus on analysing reality and as a way to supply and demand reduction, without addressing the root causes that contribute protect users from the to such supply and demand, such as poverty, underdevelopment, health, education application of unjust and and insecurity. disproportionate laws 2. The data used to assess the success or failure of drug policies is extremely and practices. narrow. Indicators based merely on procedural aspects of drug control (budget invested, the number of people arrested, convicted and incarcerated) to reduce ’ supply and demand reveal very little about the impact of drug policies on peoples’ lives. 3. Traditional metrics of supply and demand reduction can signal success without revealing the damaging impact of drug policy on human rights, health or social inclusion. 4. The indicators currently used have created perverse incentives, such as the tendency to inflate results with illegal or harmful strategies. 5. Finally, the current metrics do not give room for differential approaches for different populations. As we show, the existing indicators create incentives to process consumers over micro traffickers as they are often registered as successful captures to reduce supply. As a consequence, the policy hides realities that should be taken into account, such as class, gender and race biases in criminal prosecution of drug offenses.

Better indicators to assess drug policies could lead to better drug policies. These could be, for example; • The decrease in the number of deaths caused by overdose, • The evolution of the infection rates from HIV, hepatitis B and C and other communicable diseases among people who use drugs, • And, the coverage of treatment and harm reduction programmes for people who need them (within prisons or for the general population). On the supply side, rather than evaluating the number of people arrested and incarcerated for drug law violations, indicators such as; the reduction in the number of victims from drug-related violence, the decrease in the number of families whose incomes depend on the participation in drug markets, and the reduction of recidivism, could lead to a more just approach. This is an approach that protects human rights rather than pose an obstacle to them. . 38 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 39

Notes

1 An earlier version of this text was 10 For the complete report and country contra-los-debiles-y-debiles-contra. published by the Research Consortium studies, see: www.drogasyderecho.org. 20 Prepared with information on Drugs and the Law (CEDD), see C. 11 The Supreme Court of Argentina from studies by country. Pérez Correa, A. Corda, and L. Boiteux, declared the unconstitutionality of ‘Drug Consumption and Consumers in 21 Paladines, ‘Nuevas Penas Para Article 14, second paragraph of Act Latin America’ (Research Consortium Delitos de Drogas En Ecuador’. 23.737, which punishes possession on Drugs and the Law (CEDD), 2015), for personal consumption, provided http://www.drogasyderecho.org/ 22 Ibid that it ‘does not result in a specific publicaciones/pub-priv/catalina_i.pdf. hazard or harm to the rights or goods 23 For the distinction between subjective The authors would like to thank of third parties.’ See Supreme Court of and objective culpability see N. Alejandro Madrazo for his useful Justice of the Nation Argentina,Arriola Finkel and J. Groscup, ‘Objective comments, Ariana Angeles for her Ruling, A. 891, XLIV, 2009. versus Subjective Culpability, and a assistance and Jorge Paladines for Commonsense Balance’, Law and Human 12 See Constitutional Court of the information on Ecuador. Behavior 21, no. 2 (1997): 209–30. Colombia, Sentence C221/94, 1994, 2 Latin American Commission on where the Court declared inapplicable 24 See Amicus Curie presented by the Drugs and Democracy, ‘Drugs and the articles of Law 30 of 1986 that Center for Economic Teaching and Democracy: Toward a Paradigm Shift’, penalised use and possession for Research (CIDE), ‘Amparo Trial’. 2009, http://www.drogasedemocracia. personal use. Later, in sentence C-491 25 See L. Ferrajoli, Derecho Y Razón. org/arquivos/livro_ingles_02.pdf. from 2012, the Constitutional Court of Teoría Del Garantismo Penal (Madrid: Colombia ratified that consumption is 3 Resolution adopted by the general Ed. Trotta, 1989), 489- 90. an activity protected by fundamental assembly on 20 December 2012, United rights and, therefore, possession for 26 N. Jareborg, ‘Criminalization as a Last Nations General Assembly, ‘International personal use cannot be criminalised. Resort (Ultima Ratio)’, Ohio State Journal Cooperation against the World Drug of Criminal Law 2 (2004): 521–27. Problem’, A/RES/67/193, 67th Session, 13 In Mexico, for example, free distribution 23 April 2013, https://www.unodc. of illicit drugs is considered a crime. 27 Von Hirsch uses these same factors org/documents/commissions/CND/ to determine seriousness of a crime. 14 The table below is based on Drug_Resolutions/2010-2019/2012/ ‘Seriousness depends upon two major CEDD, ‘In Search of Rights’. GA_Res-67-193.pdf. factors: (1) the degree of the conduct’s 15 See Criminal Appeals Chamber, Supreme harm or risk of harm, and (2) the extent 4 Organization of American States and Court of Colombia, Sentence No. 29183, of the actor’s culpability in committing Scenarios Team, Scenarios for the M.P. José Leonidas Bustos Martínez, 2008. that conduct. The model thus does not Drug Problem in the Americas 2013 – call for mechanical equality among all 2025 (Washington, D.C.: Organization 16 However, according to the Supreme offenders convicted of a given species of American States, 2012). Court, when the possession is above of crime. Differentiations would have to the established thresholds for personal 5 General Attorney’s Office, ‘Statistical be made, depending on the particular use, additional criteria can be used Report on Narcocriminality. circumstances, to account for variations to demonstrate that possession Regarding the Distribution of Criminal in the extent of injury involved, and in is for personal use and should Investigations Initiated for Drugs, the degree of the actor’s culpability in not be criminalised. See Criminal Population and Employees in the inflicting that injury’, in A. Von Hirsh, Appeals Chamber, Supreme Court of Fiscal Public Prosecutor’s Office, Year ‘Criminology: Commensurability and Colombia, Sentence N° 42617, M.P. 2012’ (Buenos Aires: Narcocriminal Crime Prevention: Evaluating Formal Gustavo Enrique Malo Fernández, 2014. Attorney’s Office, 2014), http://www. Sentencing Structures and Their Rationale’, Journal of Criminal Law and mpf.gob.ar/procunar/files/2014/04/ 17 Resolution 001 CONSEP-CD-2013 Criminology 74, no. 1 (1983): 209. informe-procunar_5-5.pdf, see also established the admissible thresholds. General Attorney’s Office, ‘Law of ‘Registro Oficial No 19 - Jueves 28 A. Ashworth, ‘Is Criminal Law Partial Defederalization of Criminal 20 de Junio de 2013 Segundo a Lost Cause?’, Law Quarterly Jurisdiction Regarding Narcotics Suplemento’, Revista Judicial, 28 June Review 116 (2000): 225–56, p.239. (Law N° 26.052)’ (Buenos Aires: 2013, http://www.derechoecuador.com/ Narcocriminal Attorney’s Office, 2014). productos/producto/catalogo/registros- 29 Ibid. p.239. oficiales/2013/junio/code/20953/ 6 Ibid. 30 Article 159 of the Mexico City Criminal registro-oficial-no-19---jueves-20-de- code establishes that a person who (even 7 C. Pérez Correa and K. Silva, ‘The state junio-de-2013-segundo-suplemento. not knowing that he or she has a disease) before use and users of illicit drugs in 18 See Amicus Curie presented by the infects another will be punished with up Mexico’, Drug Policy Program Papers Center for Economic Teaching and to two and a half years’ imprisonment. (CIDE, 2014) available at http://www. Research (CIDE) to the 9th district Judge mpf.gob.ar/procunar/files/2014/04/ 31 Such is the case of Criminal Enterprise in the State of Guanajuato, ‘Amparo Trial informe-procunar_5-5.pdf (in Spanish). laws (asociación delictuosa) in Mexico 1139/2013-III’, 2013, http://ppd.cide.edu/ sanctioning whoever forms part of a 8 Public Defenders Office of Ecuador, documents/302668/0/20140602%20 group of people with the intention to ‘Aids in Drug-related Crimes Amicus%20Curiae%20Rev- commit crime, with four to eight years’ from 2007-2014’ (Quito: Office of VP.pdf (in Spanish). imprisonment. In this case, no harm Applied Research - SDGP, 2014). 19 J. Paladines, ‘Nuevas Penas Para is necessary, but the mere intent is 9 Research Consortium on Drugs and the Delitos de Drogas En Ecuador: “Duros sufficient to merit punishment (Article Law (CEDD), ‘In Search of Rights: Drug Contra Los Débiles Y Débiles Contra 253 of the Mexico City Penal Code). Users and State Responses in Latin Los Duros”’, Transnational Institute, 8 32 One could argue that harm could be America’ (Mexico, 2014), http://www. October 2015, https://www.tni.org/es/ done to the possessor (self inflicted drogasyderecho.org/publicaciones/ art%C3%ADculo/nuevas-penas-para- harm), yet this would mean that use prop_del/reporte-completo.pdf. delitos-de-drogas-en-ecuador-duros- would also need to be criminalised. 38 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 39

33 General Attorney’s Office, ‘Statistical 41 Some legal references for this have been Report on Narcocriminality’. established in several appeals issued by the Third Chamber of the Supreme 34 Mexico, General Attorney’s Court, where custodial sentences for Office, petition for information people who had in their possession up no. 0001700072215 to 200 grams of marijuana or cocaine 35 Public Defenders Office of Ecuador, ‘Aids were revoked for lack of evidence to in Drug-related Crimes from 2007-2014’. prove the intent of distribution or sale of the seized drugs. See E. Cortés 36 See G. Bardazano, ‘Respuestas Estatales a Amador, ‘Control social del consumo Los Usuarios de Sustancias Psicoactivas de drogas en Costa Rica: Para orientar En Uruguay: Entre La Alternativa Y La las políticas nacionales de drogas hacia Profundización de La Guerra Contra Las el enfoque de derechos humanos’ Drogas’ (Research Consortium on Drugs (Universidad para la Cooperación and the Law (CEDD), 2014), http://www. Internacional, 2013), http://www.uci. drogasyderecho.org/publicaciones/ ac.cr/Biblioteca/Tesis/PFGMCSH45.pdf. prop_del/uruguay-usuarios.pdf. 42 A. Von Hirsh, ‘Criminology: 37 Bardazano, ‘Respuestas Estatales Commensurability and Crime Prevention: a Los Usuarios de Sustancias Evaluating Formal Sentencing Structures Psicoactivas En Uruguay’, p.15. and Their Rationale’, Journal of Criminal 38 See Criminal Appeals Chamber, Supreme Law and Criminology 74, no. 1 (1983): 209. Court of Colombia, Sentence N° 42617. 43 R. W. Burgh, ‘Do the Guilty 39 See CEDD, ‘In Search of Rights’. Deserve Punishment?’, The Journal of Philosophy 79, no. 4 40 See Fiscalía General de la República (1982): 193–210, p.210. and Ministerio Público de Costa Rica, Poder Judicial, ‘Instructivo General 02/2010’, February 2010 ; and Fiscalía General de la República and Ministerio Público de Costa Rica, Poder Judicial, ‘Instructivo General 01/2011’, January 2011. See also E. Cortés Amador and D. Amighetti López, Políticas de Drogas Y Derechos Humanos: Reformas En Costa Rica (Costa Rica: Perspectivas, FES, 2014). 40 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 41

Legalising Drugs Prudently: The Importance of Incentives and Values

Jonathan P. Caulkins

his is yet another paper about legalising drugs. But it’s different. The usual slant is debating the pros and cons of legalisation, with academics who chose to SUMMARY Twrite on the topic almost always coming out in favor; defending the status quo may not be innovative enough to satisfy academics’ contrarian urges or tenure

■■ For the first time in the modern era, committees’ expectations. jurisdictions are legalising not just cannabis use but also its production, A newer genre takes legalisation – of only industry insiders and (hopefully) a distribution and sale. cannabis at least – as a fait accompli, but handful of unusually attentive do-gooders. ■■ Legalisation could make cannabis recognises that legalisation is not a simple The big choices, such as what kinds of use relatively safer – if it increases yes/no choice.1 There are a myriad ways organisations get to participate in the occasional users who experience no of implementing legalisation, and those market, will be made all at once in a rush and problems. However, it could just as choices matter. A bad legalisation could then rapidly become ossified. easily go the other way, with lower underperform a good prohibition just as prices, higher potency, and greater The catch is that this one-time-only a bad prohibition could underperform an advertising, facilitating escalation of opportunity for getting the regulatory problematic cannabis use. idealised legalisation. Publications in this architecture right comes before we vein evaluate the pros and cons of including ■■ The notions developed herein have actually have much experience with or this or that regulation or setting taxes at this a potential relevance for a number of evidence concerning legalisation in a other illicit drugs. rate vs. another rate.2 modern industrial society. At the moment ■■ Regulatory architectures should be This paper has a similar goal – informing of legalisation, society will be debating based on acknowledging that: how to best implement legalisation – but passionately but largely in ignorance. (1) Heavy users are prone to takes one step back. Instead of asking, in This suggests that the most important abuse dependence-inducing effect, what regulatory regime should a intoxicants. decisions to be made on legalisation day or benevolent dictator impose by fiat? It asks very soon thereafter are: (1) What kinds of (2) Industry prioritises profit what supply and regulatory architectures organisations get to supply cannabis legally? over protecting customers, are appropriate, given the realities of recognising that most sales and And (2) What are the powers and motives political processes and economic incentives profits flow from the minority of the regulatory agencies who oversee in a modern democracy. of people who consume very those suppliers? Rather than debating heavily (e.g., the ‘whales’ in the The moment of legalisation presents two whether the ideal excise tax is $1.00 or $1.50 gambling industry). special opportunities and one special per gram when no one has the empirical (3) Regulatory bodies are prone challenge relative to the ensuing decades evidence necessary to support objective to industry capture, and their of grubby regulatory rule-making. First, it analysis, we might instead think about political overlords are more is only at the moment of legalisation that who gets to decide how those tax rates will responsive to large numbers 3 of affluent voters than to small voters and lawmakers can act free of the be adjusted over time. And rather than numbers of poor ones. constraints created by an extant legal deciding whether billboards advertising industry with all of its parochial interests. cannabis sales must be 200 meters or 400 ■■ As such, the regulatory architecture should be stacked in favor of There is a one-time opportunity to work meters away from the nearest school, maybe protecting public health, most with a relatively clean slate. we should be thinking more about what notably the welfare of the heavy types of organisations are allowed to make Second, legalisation is a high-stakes act that users who lose control over their those sales. consumption. can focus the attention of busy lawmakers and voters, increasing the diversity of The goal of this paper is to spur thinking ■■ At least two basic strategies (not mutually exclusive) are available: viewpoints and stakeholder interests that are along these lines. I begin by laying out three represented. Once the watershed moment foundational observations, and then identify (1) To place regulatory control in passes, the day in and day out drudgery key recommendations that flow from those the hands of a public-health minded agency. of deciding whether production licenses observations. I couch the discussion in terms should be denominated in plants, square of cannabis legalisation, since only cannabis (2) To keep for-profit industry out of the picture altogether. feet or kilograms, and whether wattage rules legalisation is a live policy topic today, but should be adjusted for growers using LED close with some thoughts about how the rather than incandescent lights, will concern analysis might or might not carry over to 40 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 41

other substances. The data concerning different even from today. Anyhow, let us according to the 2013 US household survey). use patterns are drawn mostly from the US suppose for the moment that it will also be Hence, the lifetime risk that heavy marijuana household survey, because that survey is true in the future that 9 – 15% of those who use will lead to abuse or dependence is quite well-run, large, and makes its data available try cannabis will become dependent on it. high, perhaps considerably greater than 27 – 45%. to the public via a convenient online tool that That still would not mean using marijuana permits easy replication of the calculations creates little risk of dependency because Logic and the limited empirical evidence 4 underpinning the figures given below. most people who try marijuana only ever available suggests that liberalising cannabis I suspect that the general patterns – including use it occasionally. As such, all of that policies will increase the prevalence of use the concentration of use among the minority dependence risk loads up on the smaller and, to an even greater extent, increase the of heavy users – may have parallels in some number of people who use it more often. intensity of use. For example, the number other countries. of daily and near-daily cannabis users in the US has increased sevenfold from its nadir in 1992.12 Not all of that increase can be pinned The most important on policy changes. And precisely estimating decisions to be made on the effects of any given policy change is Foundational Premise #1: ‘legalisation day or difficult for many reasons. For one, changes Heavy users are prone very soon thereafter are: in cannabis laws tend to follow – not trigger to abuse cannabis (1) What kinds of organisations –changes in law enforcement practice, get to supply cannabis legally? rendering before and after comparisons

And (2) What are the powers treacherous. Cannabis flows freely across Most people who try cannabis do not and motives of the regulatory state lines, so states meant to serve as become dependent, but a distressing agencies who oversee ‘controls’ in statistical evaluations often get proportion of those who use on an ongoing those suppliers? ‘treated.’ In addition, much of the empirical basis do become dependent. work has erroneously lumped together A commonly cited source for estimates of ’ disparate policy changes by modeling all the lifetime risk of developing cannabis The tobacco literature often counts people types of decriminalisation with a single 6 dependence is Anthony et al.’s study that as ever having smoked only if they have binary indicator variable or using as an used 1990 – 1992 data from the National done so on at least 100 occasions. Those independent variable the existence of a Comorbidity Study. They found that 4.2% of who never cross that threshold are seen as medical marijuana law not its constituent respondents reported having had enough not being relevant for understanding health parts or the number of dispensaries or number 13 problems with their cannabis use to meet the harms (or industry revenue). The same of patients as the predictor variables. criteria for dependence at some point and principle can be applied to marijuana. Few Nevertheless, the most sensible prediction is 46.3% reported ever trying cannabis even whose lifetime consumption totals less than that legalisation will increase cannabis abuse once. Dividing 4.2% by 46.3% suggests that 100 occasions are ever seriously harmed by and dependence to at least some extent, and 9.1% of those who ever tried cannabis had that use. Conversely, most frequent users do the question is really how large the increase developed dependence.6 The corresponding cross that threshold, since it amounts to less will be, not whether there will be one.14 proportion among younger users was 15.3% than six months of daily or near-daily use or - presumably higher because back in 1990– a year of using on weekend days. 1992 many older users never had a chance to try cannabis until they had aged past their US household surveys no longer ask about most vulnerable years. the number of occasions used cumulatively, from initiation to date, but older surveys Supporting Premise: Similar rates are found in other Western did. They show that only about one-third Cannabis Abuse and 7 countries. E.g., Fergusson and Horwood of those who admit trying cannabis report Dependence is Unhealthy report that 69% of 1,265 children in the having used it as many as 100 times in their

Christchurch cohort study had tried cannabis lives. Since almost no one who uses less Systematic reviews identify a variety of by age 21 and 9% had already developed often develops dependence, we should health-harms associated with heavy and cannabis dependence, for a 9 / 69 = 13% triple the 9 – 15% figures to 27 – 45% to find prolonged cannabis use,15 so for many risk of dependence by age 21. By age 25, the lifetime risk of developing dependence people it is obvious that cannabis abuse that proportion had grown to 16% -- with for someone who uses marijuana 100 or and dependence are public health concerns. 12.5% dependent out of 76.7% who had more times in their life.11 tried.8 In an Australian sample (mean age Readers in that camp can skip this section, 21), 12% were dependent at the time of Furthermore, ‘dependence’ was the more which merely presents statistics showing that data collection; lifetime rates of dependence severe of two levels of substance use a significant proportion of marijuana users would be higher to the extent that some disorder (SUD) distinguished before the self-report suffering problems stemming who had been dependent no longer were newer Diagnostic and Statistical Manual of from their use. Mental Disorders (DSM) merged them into so and others may not yet have progressed Rather, this section is written for those 9 the broader category of SUD. The other to dependence. who question whether society should care form was labeled ‘abuse.’ About 1.5 times whether legalisation increases cannabis For various reasons the proportions may be as many people meet the criteria for ‘abuse abuse and dependence. Some skepticism is different now, notably the sharp increase in or dependence’ as meet the stricter criteria 10 not unreasonable. After all, caffeine induces cannabis potency, and the future could be for dependence (4.1 million vs. 2.8 million tolerance, withdrawal and other hallmarks 42 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 43

of substance abuse, and the DSM labels respondents might indicate they believe are caffeine-use disorder as a condition meriting being caused by their substance use. There Most people who further study.16 Yet few view the tribulations is a discernible pattern to the responses. try cannabis do not of those who over-indulge their caffeine Cannabis looks the worst, relative to alcohol, ‘ become dependent, but habit as rising to the level of a societal on questions about life functioning.21 a distressing proportion problem. Even though the Drug Abuse Cannabis also generates greater rates of of those who use on an Warning Network recorded about 21,000 people saying they tried to limit or cut down ongoing basis do emergency department episodes involving their use, but failed. The only commonly become dependent. energy drinks and there are occasional answered question for which alcohol’s reports of associated deaths,17 some argue ratio was larger than marijuana’s was ‘Did that caffeine and energy drinks do not pose you regularly drink alcohol and then do ’ a significant public health problem, aside something where being drunk might have Altogether respondents to the 2013 survey 18 from adverse effects on sleep. Perhaps put you in physical danger?’ (0.08 for alcohol report 287 million days of cannabis use in the cannabis abuse and dependence is likewise vs. only 0.07 for cannabis.) past month.24 Of that total, 229 million (80%) a reality but not a concern. Indeed, Room So not only is cannabis abuse and depen- come from respondents who are 21 or older et al.19 argue that cannabis not only has a dence fairly common now among those (the usual definition of adult for purposes of lower risk of addiction than other common who use cannabis regularly for a half-year or using legal cannabis or alcohol in the United drugs, including tobacco, alcohol, cocaine, more, that abuse and dependence interferes States). 137 million (60%) of those days come stimulants, and heroin, but also that the with life functioning at rates per past-month from people who do not self-report enough degree of dependence is less. user that are greater than those for alcohol problems to merit a diagnosis of substance Still, less harmful does not mean not harmful, (albeit still nowhere near alcohol’s effects on abuse or dependence. Less than half of as a comparison with the familiar case of death or violence). Conceivably, legalisation use-days (80% * 60% = 48%) are by adults alcohol makes clear. Alcohol is obviously could make cannabis use look relatively safer who are not identified as having abuse or much more harmful than cannabis in several – if it leads to a flood of occasional users who dependence problems.25 very important respects, including the risk experience no problems, but it could just as The survey does not ask on which days of of death from acute intoxication and the easily go the other way, with lower prices, the week respondents used. As a proxy for tendency to induce violence. On those higher potency, and greater advertising, ‘only on weekends,’ consider those who dimensions, marijuana looks exceedingly safe. facilitating escalation. report using on fewer than 10 days in the However, self-reports to the US household past month (if someone used both weekend survey suggest that marijuana produces days on all four weekends, they would have challenges to life functioning and self- used on 8 days). Adults who suffer from no 20 abuse or dependence problems and who control. In 2013, twenty million Americans Foundational Premise #2: consume on fewer than 10 days per month self-reported past-month marijuana use The marijuana industry is and 4.1 million self-reported enough report 13 million past-month days of use or prone to abuse heavy users problems with that use to meet DSM-IV 4.7% of the 287 million total. Since frequent clinical definitions for marijuana abuse or users also tend to use a greater amount per dependence. Based on parallel questions in Problem marijuana use may be a public day of use, this market segment’s share of the same survey, the corresponding figures health concern, but it is a profit opportunity consumption is probably more like 3% of for alcohol were 136 million past-month for those selling marijuana. Indeed, it is marijuana consumption. users and 18.9 million suffering alcohol not just a profit opportunity, it is the only Some might think the definition of non- abuse or dependence. important profit opportunity. Simple problem use above was drawn too narrowly. All of those figures are presumably under- arithmetic reveals that controlled, occasional Figure 1 shows how this proportion varies estimates because they are based on use by adults does not generate enough with the cut-off frequency above which use survey self-report and denial is a hallmark sales to fulfill Jamen Shively’s forecast is defined to be problematic. Unless one of addiction. But the ratio of ratios is that the cannabis industry will mint more expands the definition of non-problematic instructive. The ratio of marijuana abuse and millionaires than Microsoft. to encompass daily or near-daily use, dependence to current use (4.1 / 20 = 0.21) is For the moment, let us define non-problem unproblematic use by adults is less than 10% about 60% higher than is the corresponding use as weekend consumption by adults of the market in terms of days of use, and ratio for alcohol (18.9 / 136 = 0.13). So who do not suffer from substance abuse even less in terms of amount consumed. under current patterns of use in the United or dependence (of any intoxicant, not just Two things reconcile this with the fact that States, marijuana appears to generate more marijuana, so marijuana use by alcoholics is most cannabis users suffer no adverse abuse and dependence per user than does counted as problem use).22 consequences. First, even daily use does alcohol. If one focuses on the more serious The US household survey does not ask not always harm every user of cannabis or, diagnosis of dependence, then marijuana for that matter, even more deadly drugs. produces 140% as many victims per user, respondents how much cannabis they used; people have a hard time answering The proportion of pack-a-day smokers who since the ratios are 0.14 for marijuana vs. 0.06 get lung cancer is ‘only’ 5 – 20%, depending for alcohol. questions in terms of grams of cannabis, let alone milligrams of THC. The best measure on how old they were when they started SAMHSA imputes abuse and dependence for these purposes is the number of days smoking. But obviously lung cancer from answers to about a dozen questions of use.23 associated with daily smoking is nonetheless concerning specific problems that a health concern at the population level. 42 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 43

50% Marijuana producers’ 45% profit interests are ‘ at odds with the welfare 40% of their customer base, and of society more generally. 35% 30% ’ 25% 20% 15% 10% 5% 0% 0 5 10 15 20 25 30

Figure 1. Proportion of Cannabis Use Reported in Household Surveys that is by Adults with No Identified Substance Use Disorder and Who Use No More Often than the Number of Days per Month Specified on the Horizontal Axis

Second, one heavy user consumes more – a person contributing that typical day used by someone who reports using literally every lot more – than does one occasional user.26 over the last 12 months. The answer is single day in the past month. Indeed, since So the person involved in the typical episode 312 days – or 26 days per month, not just their average consumption of 1.6 grams of use is very different from the typical user. once a week. That striking difference arises per day is enough for roughly 3-4 joints, Again, a little arithmetic makes the point. because the minority of daily and near daily and each joint produces intoxication that (this time we include the 13 million people users account for a disproportionate share of lasts several hours, the following striking who report use in the past-year but not the the days of use. The 50% of past-year users statement is probably literally true: The past-month). who consume weekly or less often account majority of cannabis in the US is consumed for just 7% of the days-of-use. by people who spend the majority of their In the 2013 survey, 53.4% of past-year users waking hours intoxicated.29 reported using on 52 or fewer occasions in Finally, we can do a similar exercise with the past year. So if we created a sorted table grams consumed. Although the US In sum, we have three contrasting descrip- with a row for each frequency of use, wrote household survey does not ask about grams tions of typical use, all simultaneously true. in the number of respondents belonging in used, RAND conducted web-surveys in seven ■■ The typical marijuana user consumes each row, and marched down that ordered European countries and again in the state of weekly or less often. table until we got to the median user – Washington that showed users pictures of meaning the user such that half of all users piles of cannabis alongside everyday objects ■■ The typical day of marijuana use involves someone who uses nearly consume less often and half consume more like coins, paper clips, and credit cards.27 daily (26 times per month) often – then that typical user would report These prompts helped respondents answer having used 52 times in the past year. It is what otherwise would be difficult questions ■■ The typical gram of marijuana is fair to say that the typical cannabis user about the weight of marijuana consumed. used by someone who spends consumes about once a week, on average. The key finding from Washington is that the majority of their waking hours people who report using daily or near-daily intoxicated. We can do the same exercise with days of average about 1.6 grams per day of use, and use. The row for the 2 million people who So marijuana companies cannot expand that is about two to three times as much per report using twice in the last 12 months now sales significantly by selling to occasional use-day as for the occasional users. Light contains the number 4 million, since those users. They must push additional people et al.28 obtained similar results from parallel 2 million people produced 4 million days of into a state of more or less perpetual data collection in Colorado. use. Likewise, the row for the 700,000 who intoxication or intensify the intoxication of report using 10 times in the last 12 months Folding that information in with the survey those who are already in that state. Neither contains the number 7 million, and so on. data on number of days used produces the is healthy. In short, marijuana producers’ The survey respondents collectively report following estimate. The 13% of past-year profit interests are at odds with the 3.9 billion days of use in the last year, so we users who report using on each and every welfare of their customer base, and of society can march down the ordered table until we day in the last month account for 45% of more generally. reach the 3.9 / 2 = 1.95 billionth day of use. the days-of-use reported in the last month The next question is whose side regulators That might be viewed as the typical day of and more than 50% of the grams consumed. will take. use. We can then ask how frequently the Hence, the typical gram of marijuana is used 44 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 45

treat any other consumer – as competent adults Foundational Premise #3: who can look after their own interests. They are not Regulators are prone to neglect suffering appreciable harms and whatever harms It is only the public health interest they suffer are likely more than offset by the benefits at the moment ‘ they derive from their consumption. of legalisation that voters and After legalisation, the regulatory agency responsible The interests of such controlled users lie in having lawmakers for overseeing the new industry could focus on any many conveniently-located stores offering a wide can act free of the of three interests: variety of products, clear and accurate labeling, constraints created ■■ The regulated companies and low prices – which implies both low taxes and a minimum of burdensome regulations that drive by an extant legal ■■ Typical consumers industry up production costs. That list of desiderata overlaps ■■ The public health interest with all of its considerably with the industry’s wish-list. The first two have political clout; the third does not. parochial interests. Indeed, the cannabis industry can, like the alcohol In an ideal world public agencies would be defenders and gun industries but unlike the tobacco industry, of the weak; in the real world, clout often wins out. call on a cadre of happy customers whenever ’ The idea that regulated industries generally have its interests are threatened by the prospect of clout and exercise it to bend rules to their benefit unfavorable laws or regulations. needs no explanation,30 and there is no reason to By contrast, the public health interest lies in expect the cannabis industry to be any different. dependent and abusive patterns of consumption, In Mark Kleiman’s words, the marijuana advocacy but there are relatively few such people. The 4.1 movement is already morphing into the cannabis million people who report enough problems on lobby,31 with the National Cannabis Industry surveys to meet DSM criteria for marijuana abuse or Association front and centre. This is natural and not dependence are outnumbered three to one by the a problem per se – unless one is naïve enough to be 11.7 million adults who use 50 or fewer times per surprised by it. year and do not suffer from abuse or dependence. Still, the brazenness of the cannabis industry’s They are also less educated and poorer, which matters ambitions are breathtaking. Oregon’s Cannabis Tax inasmuch as political and bureaucratic institutions Act proposition of 2012 (which almost passed) would respond to money, not just headcounts. Only 10% have charged a newly constituted Oregon Cannabis of those who abuse or are dependent on marijuana Commission with responsibility for overseeing the have college degrees. The corresponding figure is industry. The proposition stipulated that five of the 40% among controlled, adult users. So the number seven commissioners ‘shall be elected at large by the of college graduates who use marijuana in ways [licensed] growers and processors.’ In other words, that align their interests with industry outnumbers regulatory-capture was built in. eleven-to-one the number of college graduates That plan did not pass, but reality under the 2014 suffering from marijuana abuse or dependence. proposition which did pass is also troubling. One- It is perhaps obvious that the interests of industry third of the Oregon Liquor Control Commission’s and these problem users differ. Industry wants them cannabis rules advisory committee hail from industry to consume more; their doctors generally want them (four entrepreneurs on the production side and the to consume less. But what is less widely appreciated founder of a cannabis testing company, as well as is that the heavy users’ accountants also ought to the chief petitioner for the proposition). Needless weigh in on the side of moderation. At present this to say, the FDA does not allow pharmaceutical group spends about 4.5% of its household income representatives to play a similar role. on marijuana, a vastly greater proportion than the The most dramatic example to date, though, is 0.25% share among controlled, adult users.33 Sensible Ohio, which pushed for an amendment In sum, natural political processes will nudge to the State Constitution that would have created regulators to serve the industry (which lobbies and a legally-protected oligopoly, with production makes campaign donations) and the modal users (who limited to sites owned by ten people who each are numerous and relatively more affluent, so more contributed $2 million to the campaign to get this likely to vote), not the circumstances surrounding the proposition passed.32 typical gram of use – which involves daily users who Likewise, it would be surprising if a regulatory spend the majority of their waking hours under the bureaucracy did not pay attention to the interests influence of a performance-degrading drug. of typical consumers in a democracy. Median Hence, if the public, and the law makers they elect, voters hold the power in elections, and we would generally want legalisation to be conducted in a expect median users to be on the minds of way that protects the public interest, the overall cannabis regulators. As noted above, the median architecture within which producers and regulators user consumes only weekly. Most such people are operate will have to be slanted toward achieving fully in command of their consumption and so can that end. reasonably be treated the way government agencies 44 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 45

of prohibition and free market supply. They argue Conclusion: Legalisation ought that both are prone to dangerous excesses and to stack the deck toward that some middle ground, such as a government At least in theory protecting heavy users monopoly over production and distribution, is an industry might much safer for substances, like marijuana, that are ‘ make more money prone to harmful use. That is the path Uruguay has selling high-priced 36 From these three premises, it is possible to adopted, along with co-ops and home growing. products to rich assert that: The US has not heeded such warnings. All four users, even if they use 1. Heavy users are prone to abuse marijuana states that have legalised large-scale production moderate quantities, (and they themselves say it harms them) as of this writing have embraced the private- than it does selling 2. Industry is prone to abuse heavy users enterprise commercial model.37 The problem, low-priced products of course, is that companies have no interest to poor users who 3. Regulators are prone to neglect public in protecting users’ health beyond keeping consume more in health interests them alive so they can keep on buying the total. If companies It follows that at the moment of legalisation – companies’ products. catering to the rich when the topic has captured the attention of dominate the industry Moreover, a government monopoly also might diverse people and industry interests have not associations, they not fit well with a free-market American culture, yet become entrenched – the deck should be might lobby for particularly at this time when hostility toward stacked in favor of protecting public health, most regulations that favor government is so high, and as a practical matter notably the welfare of the heavy users who lose lower-volume, higher- government monopoly at the state level may be control over their consumption. At least two basic quality and higher- problematic while marijuana remains prohibited strategies are available for achieving this. cost production by the federal Controlled Substances Act. But patterns. The first is to place regulatory control in the hands as Caulkins et al.38 note, there are many ways to of a public-health minded agency that views its provide for legal supply besides government job as protecting those who abuse cannabis from monopoly and commercial legalisation. being abused by industry.34 There are agencies ’ One alternative would maintain all of the industry that are willing to be tough on the industries structure and regulations that states like Colorado they regulate, notably the FDA vis-à-vis the and Washington impose on licensed producers tobacco industry and the EPA vs. the coal industry. and retailers, but in addition limit licenses to non- However, that is not the norm. Even leaving profits or public benefit-corporations.39 Public aside extreme instances of regulatory capture benefit corporations are for-profit, but they have (the Interstate Commerce Commission being the pledged to manage their organisation in order textbook example), many agencies construe their to advance a triple bottom line of people, planet, role as being neutral toward the industry, insisting and profits, rather than sacrificing all to maximise that companies follow the rules but not worrying profits. One could go further and require these whether the rules are protecting the public health. organisations to have governing boards whose Alcohol beverage control agencies are thought to members come from – or are selected by – the operate in this fashion, and some inherit regulatory public health and child welfare communities. oversight of marijuana (e.g., Washington State’s Just as the charters of some universities set aside Liquor and Cannabis Board). Other agencies are a certain number of board seats for alumni, and explicitly dual mission, such as the Federal Aviation the charters of some religiously affiliated colleges Administration being responsible for both airline set aside board seats for church representatives, safety and promoting air travel. Colorado placed the state could refuse to issue a license to any regulatory control in its Department of Revenue, organisation that does not build in a voice on which presumably has a culture of viewing tax its governing board for those most likely to be collection as a central function; taxes depend on harmed if the organisation embarked on a single- revenue, which for cannabis in turn depends on minded pursuit of profits. sales to people who abuse the drug. Eliminating or softening the mission-driven For those who believe good government incentive for promoting sales to heavy users is stronger than industry lobbying and the may be particularly valuable vis-à-vis control of political pressures of the median user, simply advertising in the US, where First Amendment choosing an appropriate regulatory body may speech protections extend to commercial free be sufficient. But others might want additional, speech, greatly limiting regulators’ options for structural protections. constraining advertising. If the suppliers do One powerful way to accomplish that is keeping not want to promote sales to consumers who for-profit industry out of the picture altogether. harm themselves via that consumption, then it Rolles and Murkin35 warn against the two extremes does not matter whether regulators can block such promotion. 46 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 47

If we want to probe for instances in which More such examples could be cited. But Discussion: Does the the risk is smaller, and so special precautions these suffice to suggest that the thesis Principle Extend to are less necessary, we might try thinking of developed above for cannabis probably has Other Drugs? substances for which the premises do not relevance for a number of other drugs, but as hold. Some examples follow. a general rule subject to exceptions, not as ■■ Some banned substances do not an iron-clad law of nature. This essay was motivated by the trend toward induce dependence and so are Indeed, at some level this entire essay boils cannabis legalisation. That is the drug whose less likely to lead to compulsive down to stating the obvious. For goods and legalisation is a present possibility, and it is or otherwise uncontrolled services over which consumers maintain the one for which direct empirical evidence consumption. Examples include full control of their consumption decisions, is beginning to develop. However, even for steroids and some hallucinogens. and make those decisions wisely, there is cannabis that evidence is thin, because no ■■ Most consumer goods – not just little need for a benevolent government modern jurisdiction had legalised large-scale drugs – obey some form of ‘Pareto to regulate in ways that favour consumers’ production and sale for non-medical use Rule’ in which consumption is interests over producers’ interests. The until Colorado and Washington State did in concentrated among a minority of consumers can look after themselves very 2012, and even there, cannabis stores did not heavy users, but not all do. To the well, thank you. open until 2014. extent that MDMA rapidly produces short-term tolerance to its desired However, for goods and services that have a Nevertheless, it is natural to wonder what effects, the average consumption systematic tendency to defeat the heuristic portion of the logic would carry over to other rate among heavy MDMA users may decision-making capabilities of the average substances. Since the evidence base with be a smaller multiple of the average human, a paternalistic government may want respect to legalising other drugs is all but rate for typical consumers than is to structure laws and regulatory processes to non-existent, this section moves into more the case for alcohol, marijuana or ensure that consumers are protected – not or less pure speculation. With that caveat cocaine. just from the drug but also from exploitation firmly stated, here is one guess concerning ■■ At least in theory, an industry might by the drug industry. Cannabis is such a generalisability to other substances. make more money selling high- good. Many, though not necessarily all, other priced products to rich users, even if dependence-inducing intoxicants are, too. In broad terms, the foundational premises they use moderate quantities, than hold for many other currently illegal drugs, . it does selling low-priced products so one might expect essential elements to poor users who consume more of the conclusion to pertain. That is, if we in total. If companies catering to restate the three premises in more general the rich dominate the industry form, they seem uncontroversial: associations, they might lobby for regulations that favour lower- volume, higher-quality and higher- 1. Heavy users are prone to abuse cost production patterns. dependence- inducing intoxicants. ■■ If most of the drug-related harms 2. Industry prioritises profit over fall on third parties, rather than protecting customers, and recognises on the user, then the political that most sales and profits flow from marginalisation of the heavy users the minority of people who consume matters less. Politicians might very heavily (e.g., the ‘whales’ in the care as much about helping those gambling industry). third-party victims as they do about catering to industry needs. Banning 3. Regulatory bodies are prone to indoor smoking to protect the industry capture, and their political public against second-hand tobacco overlords are more responsive to smoke might be an example. But large numbers of affluent voters than the case of alcohol is troubling in to small numbers of poor ones. this regard. Alcohol generates a Hence, there is a risk that the minority of fairly high ratio of harm to third consumers who use heavily will be (1) harmed parties (drunk driving, violence, etc.) relative to harm to users by their abuse, (2) exploited by industry, and (cirrhosis, heart disease), and yet (3) neglected by regulators. So if one wishes only a handful of countries truly to minimise that risk, it is prudent to slant the adopted a public health approach design or ‘architecture’ of legalisation in ways to alcohol regulation (the so-called that resist these tendencies. ‘Nordic model’)40; many take action against the externalities themselves (e.g., with tough penalties for drunk driving), but otherwise are fairly industry-friendly. 46 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 47

For other indicators, it is true that these are on metrics poor: prevalence of use does not directly matter that much since total prevalence An important is usually dominated by users who use ‘ contribution With regards to recent discussions infrequently, and so have few or no on the metrics surrounding metrics and indicators, it problems.41 With cannabis use in the US, side would be to seems as if some of the debates have been RAND has switched to mostly talking about develop methods concerned with attacking a straw man: no and measuring the number of daily and to support the thoughtful person has ever pretended that near-daily users, in addition to past-month monitoring of enforcement statistics are an adequate or a days of use: which is a much better proxy (purity-adjusted) complete set of measures to be employed in for both the quantity used and the amount price, and also the international drug control system. of use-related harm than is total prevalence. have purity itself as These statistics are further broken down in an indicator. The frequent use of enforcement statistics various ways, such as days-of-use by people when assessing ‘success’ in drug control who have a substance use disorder versus is in part due to the fact that they are those who do not. available at near zero cost as by-products of ’ administrative record systems. For example, Moreover, whereas public health officials the amount of drugs seized will typically be tend to measure drug-related deaths, measured whether or not it is considered this is a poor measure of addiction since to be an indicator of drug control success. deaths per year of dependence tends to be Keeping track of amounts seized is a basic much higher for opioids than stimulants or administrative function that ensures that the other substances: and some interventions right evidence gets associated with the right are highly efficient at reducing overdose- court case and reduces the risk that some of related fatality (notably Naloxone for opioid the seized drugs will be diverted for re-sale overdoses), but not very good at reducing in later stages of the enforcement process dependence. Although some of the strong (in particular in settings where corruption supporters of the public health approach is rampant). Thus, from an economic may claim that drug-related deaths matter so perspective, when the cost of something is much more than all other metrics that it is a near zero, one should ‘consume,’ i.e. use, such sufficient statistic in itself, this author argues statistics even if they are not highly useful in that it is incomplete. Drug dependence in measuring drug control success. and of itself wrecks a significant amount of lives: of the dependents and their families. It is also worthwhile touching upon the This is not reflected in drug-related death obsession with hectares of coca eradicated statistics. Nor are amounts spent on black as a measure of either effort or success. market transactions and crime and violence Importantly, there can be a world of difference fuelled by that spending. An intervention between a hectare of coca eradicated by that cut black market spending by 50% while aerial spraying and a hectare eradicated by leaving the number of overdoses unchanged manual removal. The former may have little would be a substantial gain from a public effect – if the peasants get to the field within health as well as social welfare perspective, a few hours, they can often still harvest and an exclusive focus on deaths of drug the leaves that have been sprayed and the users would not give it due credit. roots will not generally get infected with the herbicide. Thus, it has little effect except Moreover, there is only limited sub-literature forcing the farmer to harvest at a suboptimal on drug-related Emergency Room (ER) time. However, when eradicated by hand, the mentions. Such data does get used, which farmer would have to start over by planting it should. However, the key challenge is to anew. As such, a fundamental error that work out the extent to which the drug was has been committed for almost 20 years is the primary cause of the ER mention or if it the narrative that hectares eradicated by was just detected inside the ER and played air + eradicated manually = total hectares some ancillary role in the health event eradicated. Although eradication in and of precipitating the need for emergency care. By itself is a method with very limited success, and large, the kind of data that ERs routinely if continuing the pursuit of this strategy collect does not answer that question very drug enforcement officials at least need to well, and we cannot ask ER doctors to take a provide a clear delineation between aerial break from saving their patients, in favour of and manual eradication filling out longer data instruments. 48 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 49

This author has been arguing that an illicit drugs, the supply side estimates are important contribution on the metrics side almost all highly dubious and/or not very would be to develop methods to support useful. For example, the UN makes a good the monitoring of (purity-adjusted) price, faith effort at estimating Afghan opium and also have purity itself as an indicator. production, but since Afghanistan supplies If this is done correctly, it is possible to get 90% of the world’s illegal opioids, this is not high-frequency measures of price and purity, terribly useful for any individual country whereas many traditional demand side since no one country consumes a dominant measures are only available on an annual or share of Afghan production. Contrast that quarterly basis. with the situation with cocaine in the 1980s. At that time, the US dominated cocaine These are mostly not new ideas; the consumption – and thus estimating global literature on these issues is long-standing. production shed some light on the likely That said, there have been some important magnitude of US cocaine consumption. innovations, including developing methods of wastewater testing for drugs, and perhaps Similarly, post-legalisation proponents will Siddharth Chandra’s use of price gradients have to ask many finer-grained questions to infer trafficking flows.42 Eric Sevigny’s about outlet density and concentration of recent work on drug harm measures may be outlets in disadvantaged neighbourhoods, consulted for something which this author among other things – just like what is think reflects the state of the art, at least in done for alcohol. Likewise, there should be the US43 monitoring of marketing efforts, both in traditional media and internet and social One area which needs further work network based marketing. Hopefully, in an is thinking about how these metrics era of legalisation we will have more useful and measures would be different post- data. Indeed, to some extent that may be legalisation. The obvious point here is that inevitable if one impact of legalisation is we might get much better supply side data simply to increase drug use enough that on quantities sold from tax records, just as surveys will be more precise. Whereas today estimates of total amount of alcohol the consumption of alcohol, tobacco and consumed comes from tax records – and cannabis are so common that a random not so much from self-report surveys. The sample of 1,000 people produces a limitation here is the inability to distinguish reasonable number of users, the same is not between people who are problem drinkers true for heroin or cocaine. For substances from those who are not. Generally speaking, whose frequent use seriously disrupts lives, we do know that most alcohol is consumed i.e. cocaine, crack, and meth (as opposed to by people who have a drinking problem or cannabis and tobacco) we will still face the at least drink rather alarming amounts.44 This problem that the most frequent users may is the Pareto Law in action. Figuring such not be living in circumstances that render things out tends to be a research project, them easy to survey. and not something that is easily derived . from administrative data. In contrast, for 48 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 49

Notes

1 E.g., Caulkins, J. P., B. Kilmer, M. Substances, and Inhalants: Basic Health Regulations for Marijuana.’ A. R. Kleiman, R. J. MacCoun, G. Findings from the National (2014): 1021–28 ; Pacula, R. L., Midgette, P. Oglesby, R. L. Pacula, Comorbidity Survey.’ Experimental B. Kilmer, A. C. Wagenaar, F. J. and P. H. Reuter. ‘Considering and Clinical Psychopharmacology Chaloupka, and J. P. Caulkins. Marijuana Legalization: Insights for 2 (1994): 244–68. ‘Words Can Be Deceiving: A Review Vermont and Other Jurisdictions.’ of Variation Among Legally Effective 6 Technically this is not the estimate Santa Monica, California: Medical Marijuana Laws in the of lifetime prevalence but RAND Corporation, 2015. United States.’ Journal of Drug rather of prevalence of having Policy Analysis 7, no. 1 (2014): 1–19 2 B. Kilmer, J. P. Caulkins, G. developed dependence to date; ; Smart, R. ‘The Kids Aren’t Alright, Midgette, L. Dahlkemper, R. some respondents who had but Older Adults Are: How Medical J. MacCoun, and R. L. Pacula. not yet developed dependence Marijuana Market Growth Impacts ‘Before the Grand Opening: could have gone on to become Adults and Adolescent Substance- Measuring Washington State’s dependent later in life. Related Outcomes,’ 2015. http:// Marijuana Market in the Last Year 7 D. M. Fergusson, and L. J. ssrn.com/abstract=2574915. Before Legalized Commercial Horwood. ‘Cannabis Use Sales.’ Santa Monica, California: 14 Kleiman, M. A. R. Legal Commercial and Dependence in a New RAND Corporation, 2013 ; R. J. Cannabis Sales in Colorado and Zealand Birth Cohort.’ New MacCoun, ‘The Paths Not (yet) Washington: What Can We Learn? Zealand Medical Journal 113, Taken: Lower Risk Alternatives Washington, D.C.: Brookings no. 1109 (2000): 156–58. to Full Market Legalization of Institution, 2015 ; Kleiman, M A Cannabis.’ In Something’s in the 8 J. M. Boden, D. M. Fergusson, and R. Against Excess: Drug Policy for Air: Race and the Legalization of L. J. Horwood. ‘Illicit Drug Use and Results. New York: Basic Books, Marijuana, edited by K Tate, J. L. Dependence in a New Zealand 1992 ; Kilmer, B., J. P. Caulkins, R. Taylor, and M. Q. Sawyer, 40–53. Birth Cohort.’ Australia and New L. Pacula, R. J. MacCoun, and P. H. Routledge, 2013 ; Rolles, S., and Zealand Journal of Psychiatry Reuter. ‘Altered State? Assessing G. Murkin. How to Regulate 40, no. 2 (2006): 156–63. How Marijuana Legalization Cannabis: A Practical Guide. in California Could Influence Bristol: Transform Drug Policy 9 C. Coffey, J. B. Carlin, L. Marijuana Consumption and Foundation, 2013 ; Kilmer, B. ‘Policy Degenhardt, M. Lynskey, L. Sanci, Public Budgets.’ Santa Monica, Designs for Cannabis Legalization: and G. C. Patton. ‘Cannabis California: RAND Corporation, Starting with the Eight Ps.’ The Dependence in Young Adults: 2010 ; Caulkins et al. ‘Considering American Journal of Drug and An Australian Population Study.’ Marijuana Legalization’, 2015. Alcohol Abuse 40, no. 4 (2014): Addiction 97, no. 2 (2002): 187–94. 15 Volkow, N. D., R. D. Baler, 259–61 ; R. L. Pacula, B. Kilmer, 10 Z. Mehmedic, S. Chandra, D. W. M. Compton, and S. R. B. A. C. Wagenaar, F. J. Chaloupka, Slade, H. Denham, S. Foster, A. S. Weiss. ‘Adverse Health Effects and J. P. Caulkins. ‘Developing Patel, S. A. Ross, I. A. Khan, and of Marijuana Use.’ New England Public Health Regulations for M. A. ElSohly. ‘Potency Trends of Journal of Medicine 370 (2014): Marijuana: Lessons from Alcohol Δ9-THC and Other Cannabinoids 2219–27 ; Hall, W. ‘What Has and Tobacco.’ American Journal of in Confiscated Cannabis Research over the Past Two Decades Public Health 104, no. 6 (2014): Preparations from 1993 to 2008.’ Revealed about the Adverse 1021–28 ; Fijnaut, C., and De Journal of Forensic Sciences Health Effects of Recreational Ruyver, B. The Third Way: A Plea 55, no. 5 (2010): 1209–17. Cannabis Use?’ Addiction for a Balanced Cannabis Policy. 110, no. 1 (2015): 19–35. Leiden: Brill Nijhoff, 2015. 11 The prevalence among all who try is the weighted average of the 16 Meredith, S. E., L. M. Juliano, J. 3 And perhaps tax bases as well prevalence for those who do use R. Hughes, and R. R. Griffiths. (cf., Caulkins et al. ‘Considering more than 100 times, and those ‘Caffeine Use Disorder: A Marijuana Legalization,’ 2015 ; who do not. So if those who use Comprehensive Review and Oglesby, P. ‘States May Be Stuck fewer than 100 times essentially Research Agenda.’ Journal with Second-Best Marijuana never become dependent, then of Caffeine Research 3, no. Taxes.’ State Tax Notes 72, no. 9 overall prevalence = prevalence 3 (2013): 114–30. http://doi. (June 2, 2014). http://ssrn.com/ among those who use often * 1/3 + org/10.1089/jcr.2013.0016. abstract=2455961). Initially an 0 * 2/3, so prevalence among those ad valorem (percentage of value) who use often = 3 * prevalence 17 Center for Science in the Public tax has appeal, because it is so among all who try the drug. Interest. ‘Documents Link More simple, but it has drawbacks Deaths to Energy Drinks,’ June and over time – as the industry 12 J. P. Caulkins, B. Kilmer, and M. A. 25, 2014. http://www.cspinet. stabilises and testing technology R. Kleiman, Marijuana Legalization: org/new/201406251.html. improves –switching to a different What Everyone Needs to Know, tax base, such as taxing THC 2nd ed. (Oxford University 18 Wesensten, N. J. ‘Legitimacy of content, may be prudent. Press, 2016 (forthcoming). Concerns about Caffeine and Energy Drink Consumption.’ 4 Most analysis herein can be 13 R. L. Pacula, R. J. MacCoun, P. Nutrition Reviews 72 replicated using the SDA tool H. Reuter, B. Kilmer, K. Harris, L. Suppl 1 (2014): 78–86. available at http://www.icpsr.umich. Paoli, and C. Schäfer. ‘What Does It doi:10.1111/nurer.12146. edu/icpsrweb/ICPSR/studies/35509. Mean to Decriminalize Marijuana? A Cross-National Empirical 19 Room, R., B. Fischer, W. Hall, S. 5 J. C. Anthony, L. A. Warner, Examination.’ Advances in Health Lenton, and P. H. Reuter. Cannabis: and R. C. Kessler. ‘Comparative Economics and Health Services Moving Beyond the Stalemate. Epidemiology of Dependence Research 16 (2005): 347–69 ; Oxford, United Kingdom: on Tobacco, Alcohol, Controlled Pacula et al. ‘Developing Public Oxford University Press, 2010. 50 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 51

20 Caulkins, J. P. ‘Is Marijuana Safer 28 M. K. Light, A. Orens, B. 37 Washington DC took the more than Alcohol? Insights from Users’ Lewandowski, and T. Pickton. modest step of legalisation with Self-Reports.’ Carnegie Mellon ‘Market Size and Demand for only home growing, but that may University Heinz College Working Marijuana in Colorado.’ Prepared be a temporary bow to political Paper, 2014. http://repository.cmu. for the Colorado Department reality as the national capital. edu/cgi/viewcontent.cgi?article of Revenue by The Marijuana 38 Caulkins et al. ‘Considering =1401&context=heinzworks ; J. Policy Group, 2014. https://www. Marijuana Legalization’. P. Caulkins, ‘The Real Dangers of colorado.gov/pacific/sites/default/ Marijuana’, National Affairs, 2016. files/Market%20Size%20and%20 39 Caulkins, J. P. ‘Nonprofit Motive: Demand%20Study,%20July%20 How to Avoid a Likely and 21 For example, the ratio for marijuana 9,%202014%5B1%5D.pdf. Dangerous Corporate Takeover was 2.8 times higher than the ratio of the Legal Marijuana Market.’, for alcohol concerning the question 29 Thus many decisions to use Washington Monthly, 2014, ‘Sometimes people who drink cannabis are made at least partially March/April/May edition. alcohol [use marijuana or hashish] under the influence of cannabis. Note: Even though non-profits have serious problems at home, Joint size varies considerably do not pay corporate income work or school - such as: Neglecting and systematic data on size are taxes, entrusting legal supply to their children, Missing work or rarely reported. For the higher non-profits would still generate school, Doing a poor job at work potency forms that are becoming considerable tax revenue from or school, Losing a job or dropping increasingly common 0.4 grams sales and excise taxes and income out of school. During the past 12 of cannabis per joint may be taxes on employees. Non-profit months, did drinking alcohol [using typical, although various older does not mean no tax revenue. marijuana or hashish] cause you sources often refer to 0.5 – 1.0 to have serious problems like this grams. Sometimes larger estimates 40 R. Room, ed., The Effects of either at home, work, or school?’ refer to mixtures of tobacco and Nordic Alcohol Policies (Helsinki: cannabis, not just cannabis. Helsinki: Nordic Council for Alcohol 22 This can be seen as a simple and Drug Research, 2002). version of Fischer et al.’s (Fischer, 30 Stigler, G. ‘The Theory of Economic B., V. Jeffries, W. Hall, R. Room, Regulation.’ The Bell Journal of 41 See for example the UNODC’s E. Goldner, and J. Rehm. ‘Lower Economics and Management World Drug Report(s), wherein Risk Cannabis Use Guidelines for Science 2, no. 1 (1971): 3–21. there is clear delineation between Canada (LRCUG): A Narrative problem users (often dependent 31 Brookings Institution. ‘Improving Review of Evidence and users) and other users. Global Drug Policy: UNGASS 2016 Recommendations.’ Canadian and Beyond.’ Washington, D.C., Journal of Public Health 102, no. 5 42 See, e.g., C., Siddharth and J. Joba, 2015. http://www.brookings.edu/~/ (2011): 324–27.) guidelines for low- ‘Transnational cocaine and heroin media/events/2015/04/30-ungass- risk cannabis use that can readily flow networks in western Europe: A drug-policy/20150430_global-drug- be ascertained using variables comparison’, International Journal policy_transcript--corrected.pdf. available in the household survey. of Drug Policy 26, no. 8(2015): 772-780 ; C., Siddharth, S. Peters, 32 J. Warner, ‘Marijuana Legalization 23 As measured by the survey and N. Zimmer, ‘How Powdered 2015: Ohio’s Push to Legalize variable IRMJFM. Cocaine Flows Across the United Pot Creates Rifts within pro- States Evidence From Open-Source 24 As noted above, anyone with an Pot Movement.’ International Price Data’, Journal of Drug Issues internet connection can replicate Business Times, September 10, 44, no. 4 (2014): 344-361 ; C., these calculations using the SDA 2015. http://www.ibtimes.com/ Siddharth and M. Barkell, ‘What tool at http://www.icpsr.umich.edu/ marijuana-legalization-2015- the price data tell us about heroin icpsrweb/ICPSR/studies/35509. ohios-push-legalize-pot-creates- flows across Europe’, International rifts-within-pro-pot-2088133. 25 The true proportion may be lower Journal of Comparative and Applied than 48% since many people 33 I am indebted to Steve Davenport Criminal Justice 37, no. 1 (2013): are in denial about the problems for doing these calculations. They 1-13 ; C., Siddharth, M. Barkell, created by their addiction. exclude a few people who may be and K. Steffen, ‘Inferring cocaine purchasing for resale and attribute flows across Europe: Evidence 26 Burns, R. M., J. P. Caulkins, S. a household income of $100,000 from price data’, Journal of Drug S. Everingham, and B. Kilmer. to the top income respond Policy Analysis 4, no. 1 (2011). ‘Statistics on Cannabis Use bracket of $75,000 or more. Skew Perceptions of Cannabis 43 See, e.g., E. L. Sevigny and M. Use.’ Frontiers in Psychiatry 34 Blue Ribbon Commission on Saisana, ‘Measuring Interstate 4 (2013): 138. doi:10.3389/ Marijuana Policy. ‘Pathways Report: Variations in the Consequences fpsyt.2013.00138. Policy Options for Regulating of Illegal Drugs: A Composite Marijuana in California,’ 2015 Indicator Approach’, Social 27 Kilmer et al. ‘Before the Grand https://www.safeandsmartpolicy. Indicators Research (2015): 1-29. Opening’, 2013 ; van Laar, org/wp-content/uploads/2015/07/ M., T. Frijns, F. Trautmann, and 44 See Phil Cook’s work, P. J. BRCPathwaysReport.pdf ; L. Lombi. ‘Cannabis Market: Cook, Paying the tab: The Caulkins et al. ‘Considering User Types, Availability and costs and benefits of alcohol Marijuana Legalization’. Consumption Estimates.’ In control (Princeton, NJ: Princeton Further Insights into Aspects 35 Rolles, and Murkin. How University Press, 2007). of the Illicit EU Drugs Market, to Regulate Cannabis. edited by F. Trautmann, B. Kilmer, 36 Walsh, J., and G. Ramsey. and P. Turnbull, (Luxembourg: Uruguay’s Drug Policy: Major Publications Office of the European Innovations, Major Challenges. Union, 2013, 73–182.) Washington, DC. (Washington, D.C.: Brookings Institution, 2015.) 50 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 51

If Tougher Enforcement Cannot Reliably Raise Drug Prices, What Are Appropriate Goals and Metrics?

Peter Reuter, Harold A. Pollack and Bryce Pardo

classic and critical assumption of the war on drugs was that more stringent summarY enforcement would raise price. Whether higher price was a desirable outcome was Ahotly debated. Higher prices, under most reasonable assumptions about demand, meant higher revenues for dealers, more property crime and perhaps more violence. On ■■ There is minimal evidence supporting the other hand, it meant fewer users and less drug consumption, and so perhaps less the core proposition that drug drug-related harm over the long-run. enforcement raises the price on illicit drugs: which has been a classic and Though the drug war may have ended, This paper is an early exploration of that critical assumption of the global war on drugs. drug enforcement is likely to still dominate question, with no claim to a firm conclusion. budgets in most countries for the We are sure that there is no unitary goal to ■■ Through a careful analysis of four foreseeable future. Change occurs slowly drug enforcement policies. Rather, there are levels of the cocaine industry; production, smuggling, high-level and enforcement is generally much more multiple proper goals. Goals and measures domestic distribution and low-level expensive than prevention, treatment or vary by agency, substance, and level of domestic distribution – this article harm reduction. In a previous review of the market targeted. An imaginary drug czar, highlights how illegal drug markets empirical evidence on the effects of tougher cannot ask her supply side office to identify a differ in important ways from the supply side enforcement on prices,1 two of us single indicator of success, as she might once simplified models taught in Economics 101. found little support for the proposition that have if she subscribed to what we will refer to higher toughness produced higher prices. as the standard model of drug markets. ■■ Rather than simply increasing However, the research to date is sparse, price and limiting the supply, drug For simplicity, we focus on policing (broadly heterogeneous in terms of methodology enforcement strategies prioritising defined as apprehending or otherwise market disruption have caused and of enforcement programmes assessed, altering the behaviour of drug dealers, disorder and violence: as can be marred by limited data sets and thus fragile traffickers and producers through police seen in Mexico where organisational methodologies. The problems are inherent decapitation has contributed to actions), rather than prosecution or in the topic. There is little likelihood of cartel fragmentation as increasing regulation.3 We ignore demand side policing, a major breakthrough in understanding number of groups fight over fewer since we think decriminalisation of simple trafficking routes. the effects of the many forms of drug possession might be most desirable. enforcement (from eradication of crops ■■ Whereas arrests and quantities seized have long been the two metrics used to longer sentences for street dealers) on Section I briefly summaries the research to evaluate operational success, the purity-adjusted prices. evidence available on enforcement and authors propose that an alternative set prices, justifying our initial skepticism. Moreover, many theoretical arguments call of metrics should be used. A coherent Section II then provides a more detailed framework for assessing the goals of into question prior models used to justify theoretical account of how the standard drug enforcement can be applied from the assumption that tougher enforcement model might apply to some components of the analysis of demand side policy, mechanically translates into corresponding namely harm reduction; i.e. reducing the distribution chain but is unlikely to apply price increases. Though complications to the harms that drug users inflict on to other components and the consequences the model, in particular dynamic aspects, themselves, others, and also the in terms of the effect of higher stringency on harms caused by illicit markets in the have been discussed elsewhere,2 we believe prices. Section III explores the consequences, production, trafficking and distribution that this paper offers some useful advances both positive and negative, of more stringent of drugs. in understanding of why enforcement might enforcement: some of these are unintended ■■ Overall, the supposed efficacy of fail, at the margin, to raise prices. effects and others are the result of strategic supply-side enforcement remains challenged as there is little evidence The question then is what are appropriate choices. Section IV draws some policy that marginal increases in enforcement goals for drug enforcement if we can implications from the analysis. raise equilibrium prices. This realisation neither assume that such measures raise should allow law enforcement to focus prices nor assume that raising prices would on those social harms most amenable automatically reduce the social harms to police interventions. associated with drug use? How should progress be measured? 52 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 53

I. What do we know Venezuelan border (exploited by Mejia and Restrepo)10 that can help empirically but about the effect of drug only in a limited way. enforcement on price?4 The evidence comes almost exclusively The current public debate

from the US. The intensity of enforcement, over drug policy largely Simply put, there is minimal evidence certainly in terms of incarceration, may ‘centres on adverse in support of the core proposition that be so much higher in that country that unintended consequences drug enforcement raises price. We word the findings, which are about marginal of drug policing, whether that cautiously not merely from scholarly changes in enforcement, have little claim to in American cities at the prudence, but because the research base generalisability to other nations. There is retail end or the spraying is so weak that any stronger statement no consistency across the few studies of any of coca crops as part of is unwarranted. one stage of the distribution system. eradication programmes. We have identified only eight published Given the number and variety of these studies, meeting minimal research problems, it is hard to see that the literature standards, relating price at some point ’ is likely to be strengthened in the near in the drug distribution system to drug future. Policy decisions will have to be made enforcement efforts, varying from the source with minimal research guidance about the Assume for the moment that these notions country level to retail sale. There is limited impact of increasing the intensity of policing characterised the drug markets. Then the additional literature on the price effects of or penalties at any stage of the distribution most basic enforcement strategies that aim tighter regulation of precursors, dominated system. to reduce drug consumption are readily by the contributions of Cunningham illustrated in a standard supply-demand and collaborators;5 we do not include Note that we have considered only framework. Interdiction and other supply- that because it involves use of regulatory the incremental or marginal effects of side enforcement efforts raise marginal rather than police authority, raising input enforcement in mature markets. That reflects production costs, shifting the supply costs directly. the difficulty of obtaining such measures for smaller and emergent markets with limited curve up by this amount at whatever The studies are primarily of cocaine supply chains and small consumer bases of stage in the supply chain is affected by markets, with just two involving heroin. mostly new users. Enforcement, mounted the particular enforcement action. The The programmes covered include: early enough and targeted appropriately, resulting equilibrium price will rise, and the eradication, interdiction, high-level domestic may sufficiently raise prices or otherwise quantity of drugs sold will decline, as the enforcement and retail enforcement. The deter users and sellers so the market does market equilibrium moves along the market studies employ a variety of measures of not reach maturity. Such successes would demand curve. enforcement (seizures, arrests, incarceration) not be susceptible to this kind of evaluation. In fact, drug markets are not well- and use prices at different levels of the functioning by the standards applied to the distribution system. Mejia, Restrepo and global markets for sneakers or breakfast Rozo6 found that a variety of interventions cereal or even by the standards applied in Colombia may have accounted for the II. What are the valueS to more concentrated markets such as rise in retail prices in the US in 2007. One and limits of the word processing software or smartphones. interdiction study found short-term retail economic model of drug Illegal drug markets differ in important price increases resulting from enforcement enforcement/markets? ways from the simplified models taught in surges.7 Moreover, one of the retail studies Economics 101. They differ even more from found a 5-15% increase in retail cocaine The previous section informs our sceptical the competitive ideal than do many legal prices from 1983-1996 as a consequence of take on the empirical evidence. But what markets that are characterised for example enforcement intensification, which included about the theory? by monopoly or asymmetric information a ten-fold increase in incarceration for (i.e. where sellers know more than buyers cocaine offenses.8 The other studies have Here we set out the standard model or vice-versa). Illegal drug markets display found no effect. that has been used to predict that more many distinctive features such as imperfect stringent enforcement will raise price, and The challenges facing such studies information about product quality (sellers then consider how applicable it might are numerous and daunting. Purity- are often as ignorant as buyers about purity), be to different segments of the market. adjusted price is difficult to measure and about other prices (since transactions are Within the standard economic framework, rarely available.9 The proper measure of clandestine) and self-selection into the trade competitive markets are characterised enforcement is a rate of penalty per unit flow. on characteristics such as a willingness to by free entry and exit by firms, no one of However, the numerator has many elements take physical and legal risks. The addictive which is able to dictate prices. Within such (arrest, incarceration, asset seizure, drug character of illegal drugs introduces other markets, prices closely reflect marginal costs. seizure), and there is no basis for determining market failures, as well. Information (including pricing information) the appropriate weights for each. In is transparent. Transaction costs are All of these characteristics have been addition, the denominator is impossible negligible. Firms structure themselves to discussed in earlier papers.12 None of them to measure, and very difficult to proxy. The most efficiently meet market demand at the have considered, as we do in the following problems are both conceptual and empirical. prevailing price of what they produce. These pages, how these characteristics might There may be natural experiments or quasi- are the assumptions underlying the widely lead to different responses to enforcement experiments, such as the restriction on the used Risks and Prices model.11 interventions and how they might differ spraying of Colombian coca fields near the 52 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 53

across the many distinct elements of the for expensive corruption payments (e.g. elaborate undercover operations that drug trade, particularly the many levels of sending submersibles from the Colombian increase uncertainty about the reliability of the cocaine and heroin trades. to the Mexican coast)16 and yet others use customers and colleagues. higher risk methods that economise both We consider here, for expositional purposes, For the retail and low-level wholesale on corruption and technology (e.g. sending four levels of the cocaine industry; markets we are back to very large numbers shipments concealed in legitimate freight).17 production, smuggling, high-level domestic of supply side participants. Even for a single distribution and low-level distribution. This The smugglers’ costs are often determined city retail market, Caulkins and Reuter,21 should be seen as describing a mature mass in idiosyncratic bargaining. What does a using standard numbers, suggest that a market; there are other sources of deviation Honduran colonel charge for allowing a metropolitan area with 1 million inhabitants from the standard model when the drug is 250 kg shipment to land safely at a remote (e.g. Birmingham, Alabama around 2005) still emerging. airport? How much market power does might have had 3,300 cocaine sellers, the he have in this transaction: he might be Producers: We start with the segment for vast majority of them retailers. Buyers shop constrained by awareness that an equally 22 which the difference between the standard around, both because drug dealers are biddable colonel controls a neighbouring competitive model and what is observed in unreliable (often sick, jailed or out of stock) border zone that is almost as convenient drug markets is slightest. Farmers growing and perhaps to learn about prevailing price for cocaine smuggling. Do the pilots who coca in the Andes are many in number and quality. Sellers’ major costs include time, fly these planes even have a rough estimate (according to the UN, in Colombia alone both their own and those of others that they of the risk they face of apprehension and there are over 300,000 people living in employ: there may well be a standard wage the expected penalty conditional on being 65,000 households that cultivate coca), are for working as a look-out for a street cocaine apprehended?18 price takers, perhaps facing a monopsonist dealer in Atlanta in 2005. The standard (a single buyer of a good or service), model, on its face, looks more plausible and purchase all relevant inputs in for this segment of the market. The factor competitive markets. 13 One of the retail studies found intensity within the production process a 5-15% increase in retail of enforcement-vulnerable inputs, and These producers operate under varying ‘ cocaine prices from 1983- producers’ ability to shield or to substitute degrees of legal pressure that will affect their 1996 as a consequence of away from these vulnerable inputs, would efficiency relative to a legal producer; for enforcement intensification, both influence the translation between example, they cannot effectively invest in which included a ten-fold enforcement and ultimate market prices. R&D and generate rents from developing a increase in incarceration for new strain of coca bush that might be more In fact, though, it may be weak for many cocaine offences. The other different reasons. As noted above, Caulkins productive. Yet the simple model ought to studies have found no effect. do well in predicting their response to such and various collaborators have already interventions as eradication or alternative identified a long list of threats. For example, development. Because this stage accounts ’ assume that policing tends to weed out the for such a small proportion of the value- Standard economic models appear more most violent sellers first, this may not be a added between the original plants and final strained for this sector of the industry: result of drug policing strategy but because product markets, it is unclear how much though competitive pressures are not wholly homicidal drug dealers get picked up by increases in farmers’ marginal costs (and unfamiliar from other complex network the homicide squad. Then, Caulkins, Reuter, 23 thus equilibrium prices of their output) raises models of industrial organisation. Because and Taylor show that this might lead to actual drug prices paid by users. local opportunities and local knowledge are reductions in price as the market becomes so important, efficient producers may not less violent and attracts more sellers with The fully competitive model seems less be able to expand or replicate their efforts in high aversion to physical risks; this is purely applicable to the next two levels in the supply broader contexts. a theoretical result, though one that perhaps chain, though some aspects of these markets is more rooted in the realities of mature drug are familiar from industrial organisation The high-level domestic distribution sector markets than are other models that generate accounts of oligopoly and monopolistic within the US or any European country is perverse results.24 19 competition. less well understood. Corruption and violence certainly play a smaller role than None of this reasoning and observation Smuggling: Relatively few smuggling in the smuggling market: cases involving suggests that economics is irrelevant to organisations account for a large share of high-level cocaine distributors paying US understanding drug markets or that such the market. Following the break-up of the enforcement agencies are rare and pay- enforcement efforts are unwise or ineffective. Cali and Medellin syndicates in the 1990s, a offs to high-level Dutch or British police It is just a reminder that the standard models greater number of autonomous organisations almost unheard of. DEA records a total of of how increasing risks and certain other smuggle multi-tonne shipments of cocaine 5 agents killed in the line of duty between costs, the tool that policing/eradication/ out of Colombia. Simple arithmetic suggests 2006 and 2010, underscoring the rarity of interdiction brings to bear, may not have that the largest ten organisations might systematic violence directed at US drug the consequences predicted by the simple 14 account for about 50 % of the total. enforcement personnel.20 Direct evidence is economic model. With neither theory nor The technology of smuggling is varying rare regarding the commercial calculations evidence supporting the proposition, it is and non-standard; some use corrupt of high-level domestic distributors, though time to turn to the other consequences of connections in Venezuela,15 others many investigative strategies aim to drug enforcement. substitute relatively expensive technology increase perceived risk, for example through 54 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 55

Drug policing, even if aimed at sellers (many Some police departments, faced with III. Other Effects of of whom are also users) can negatively increases in overdoses—particularly Drug Enforcement impact the immediate health and wellbeing from heroin and prescription opioid use, of drug users as it induces unsafe behaviours are starting to depart from traditional

and displaces criminal activity. For example, enforcement goals that emphasise the The current public debate over drug policy users begin to fear law enforcement market itself. In these cases, police have largely centres on adverse unintended involvement and adopt unhygienic practices been issued with Naloxone kits to reverse consequences of drug policing, whether such as the rental of drug paraphernalia to overdose. One study in Ohio found that in American cities at the retail end or the avoid detection.33 Drug law enforcement training and equipping officers with spraying of coca crops as part of eradication can displace drug use activity; arresting Naloxone is associated with reduced opioid programmes. Legalisation proponents or citing users that possess paraphernalia, overdose deaths.39 stress these harms as the principal reason such as syringes, are associated with higher to consider a dramatic alternative.25 Public One important, but poorly articulated, aspect incidence and prevalence of HIV and HCV.34 health advocates, even if not pressing of drug law enforcement is the manner in legalisation or depenalisation, emphasise which agents of the state maintain the rule the harms from current enforcement efforts of law and state legitimacy. Poorly governed as the basis for major policy reforms.26 Yet, or impoverished communities and territories as we describe below, drug policing can also Illegal drug markets are susceptible to drug production or selling have positive consequences, unrelated to display many distinctive activity. This includes cities in consumer any price effects. ‘ features such as imperfect nations and sparsely populated hinterlands information about product of producer nations. Smartly applying drug Aggressive enforcement has been criticised quality (sellers are often law enforcement, by focusing on violent for contributing to the alienation and further as ignorant as buyers and disruptive actors, may improve the rule marginalisation of minority communities, for about purity), about other of law as well as community relations. The example in Seattle.27 The Wire grimly and prices (since transactions Drug Market Initiative in High Point, North persuasively documents the accompanying are clandestine), self- Carolina and the Colombian government’s harms in extreme form for Baltimore. selection into the trade on shift toward security and state presence Such policing efforts have contributed characteristics such as a post-Plan Colombia are examples by which substantially to the incarceration of low- willingness to take physical the state can reassert itself in communities level retailers and drug couriers who are and legal risks. The addictive and territories that are troubled by drug easily replaced.28 Prioritising drug law character of illegal drugs activity and violence.40 enforcement may contribute to increases in introduces other market property crime as manpower and resources failures as well. That said, as noted above, policing is are directed away from such crimes.29 probably most successful at preventing the establishment of new drug markets: such ‘You can’t regulate what you prohibit,’ markets are vulnerable to the removal of a dictates an old policy adage. By prioritising ’ few key providers and to simple interruption controlling drug markets, police ignore Police also have the power to shape the where networks are not yet established and some of the negative consequences of their supply of drugs in more socially positive new users are most readily deterred or diverted actions, and may lead police to overlook ways.35 Drug policing can improve into the use of other substances. Enforcement opportunities for more socially-useful community safety by focusing on ‘hotspots’ is weaker at controlling mature markets. enforcement practices. Efforts to suppress such as open-air markets or areas known The elimination or substantial shrinkage local drug markets may focus enforcement to retail drugs and which contribute to of established markets may necessitate resources on dealers with the greatest violence or public disorder.36 It turns out, unsustainable levels of enforcement that do market share or on those who can be most against criminology theory expectations, not conform to the democratic principles of a readily apprehended rather than those who that there is a diffusion of benefits rather free and equal society. impose the greatest social harms. than displacement of crime. In some In sum, drug law enforcement, like any other In some instances, prioritising market circumstances, domestic drug enforcement state intervention in a market, has many disruption may itself introduce disorder may reduce crime and violence through consequences, intended and unintended. which can increase violence in the short- other mechanisms, improving community Well targeted, normatively sensitive and term.30 For example, enforcement strategies safety by policing criminogenic drug users intelligently informed policing that takes in Mexico that focused on organisational or dismantling violent retail operations.37 into account the lifecycle of a drug market41 decapitation have contributed to cartel Local police can directly address supply-side will often improve social welfare. This is fragmentation and a surge in violence as threats to public health by implementing or not always possible in the real world, with increasing numbers of groups fought over supporting harm reduction interventions individuals and agencies that have their fewer trafficking routes.31 and through orienting investigation to own interests and constraints. A simplified Interdiction efforts can shape smuggling reduction of harms. Police can identify version of our task then is to maximise the routes, sometimes with mixed results. and warn the public about adulterated net benefit, taking into account both the A shift away from maritime toward terrestrial or exceedingly potent batches of drugs positive and negative consequences. The trafficking routes for Colombian cocaine in entering the market.38 Efforts can then be final section turns to goals and metrics. Given the last decade has been devastating for made to investigate and shut down the space limitations, we focus here on policing many smaller nations in Central America supply of these sources. of markets in American cities. and Mexico.32 54 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 55

IV. Goals and Metrics for Drug Enforcement Caulkins and Reuter,42 attempting to bring human rights to drug enforcement generally, suggested that drug enforcement could have four positive goals: ‘1. Reducing the amount of drug use Drug markets present a particular challenge (which one might denote use reduction). to police. Both buyer and seller are willing participants in a market transaction. The 2. Reducing the harm that drug users experience per unit of drugs used lack of any complainant or victim removes (which might be denoted as micro harm reduction). a central prop of policing against violent 3. Reducing the harms that drug users impose on others and property crimes, even white-collar (which might be denoted as use-externality reduction). crimes. In contrast to robbery or assault, police often rely on undercover or intrusive 4. Reducing the harms caused by production, trafficking and distribution of drugs means to infiltrate drug markets. At the (which might be denoted as market-externality disruption).’ other end of the production system, coca farming, the task is similarly complicated by the fact that the police and/or military are being asked to deprive low-income Useful as Caulkins and Reuter’s four Reducing the harm that drug users experience rural households of a principal source categories above are, this list is incomplete per unit drug consumed: These involve the of income. because it fails to recognise the role that classic harm reduction issues. Having police drug policing may play in crime control distribute Naloxone, in addition to not Drug market enforcement also defies simple generally. Drug sellers and producers making needle possession a target for arrest, outcome measures. For modern police, with are frequently involved in other criminal exemplifies the positive approach, as does their increasingly sophisticated geographic activities, both as part of the drug business the spread of warnings about dangerous databases, reports of crime incidents are (e.g. violence and corruption) and separately. batches, discussed previously. Curbing the standard measure of success. Flawed To the extent that drug-market participation enforcement practices that promote though reports may be, they have a face, complements or promotes other crimes, needle-sharing (e.g. aggressive enforcement validity and reality. For drugs there is as yet drug policing can thus be a means of of paraphernalia laws) reduces harms no counterpart. Arrests (perhaps weighted apprehending offenders who pose a risk stemming from blood-borne infectious by importance) and quantities seized have apart from their provision of illegal drugs. Of diseases. long been the two metrics used to evaluate course drug-market participation may also operational success. From this standpoint, Reducing the harms that drug users impose on substitute for participation in other types of a department police may look good at its others: The classic example of these harms crimes. Street-level drug sellers earn wages job. However, often the other consequences, is property crimes generated by the high and act under the managerial supervision discussed above, are more salient. cost of a drug habit. Caulkins and Reuter44 of drug-selling organisations. It is at least note that drug users are often irresponsible We focus on established mass markets since theoretically possible that suppressing parents and partners, and that police can these are almost certainly responsible for a particular drug market may lead some attempt to systematically ameliorate this by most of the harm associated with drugs. New participants to commit other types of crime. checking whether social services are needed markets may involve drugs that are more We briefly consider each of the goals in turn, in the households of those arrested for drug dangerous to users but it is precisely that identify the mechanisms by which policing selling. However, that goes beyond what danger which typically leads to the demise can attain these goals, and then turn to the might reasonably be assigned to supply or at least sharp shrinking, of these markets. issue of metrics. side policing. Supply-side enforcement One way to provide a coherent framework can sometimes be especially helpful when Reducing drug use: Even without reliable for assessing the goals of drug enforcement it is focused on substances associated with price effects, policing of drug suppliers is to apply the same framework that now is large user-induced externalities. can reduce the quantity consumed. so widely used in the analysis of demand side Making sellers discreet and markets less Reducing the harms caused by production, policy, namely harm reduction. Although geographically concentrated can raise the trafficking and distribution of drugs: Many the term ‘harm reduction’ is often used time required and difficulty faced by drug drug enforcement efforts aim to close down to denote specific interventions such as buyers to find a willing seller. That old insight open-air retail markets or at least to force syringe exchanges, the term is most helpful of Moore43 has been only lightly explored these markets to be discreet. Such measures in identifying a set of guiding questions in the research literature and is not part of reduce the actual or perceived danger of which ought to inform drug policy and drug the discussion of drug policing generally. specific neighbourhoods, even if these have law enforcement. Cell phones and internet connections may negligible impact on the prices or quantities have transformed the ways in which buyers of drugs actually consumed. At the other We ignore demand side policing, and sellers find each other, but the fact end of the production system, that goal can since we think decriminalisation that traditional drug policing still turns up lead to targeting strategies for eradication: ‘ of simple possession might be so many sellers and buyers on the street to target producing areas where alternative most desirable. suggests that the transformation is far development programmes give farmers from complete. more opportunity for obtaining a decent living ’ without growing coca or opium poppies. 56 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 57

Even if we have articulated the correct principles, to be useful we must turn these Policing is probably into metrics that can be used by managers to motivate their officers to take them most successful ‘ seriously. We offer just three suggestions here: at preventing the establishment of 1. Develop criteria for the existence and harmfulness of drug markets, new drug markets; drawing on relatively easily obtained information. One outcome criterion such markets are might be the number and severity of such markets, at least in areas where vulnerable to the such markets are at a high risk of emerging. Criteria might include violent removal of a few key offenses, weapons charges or serious property crimes committed by likely providers and to simple users and sellers in a particular location. interruption where 2. Track the criminal histories of those arrested by the drug squad so that there networks are not is an incentive to target those who are involved in the most serious non- yet established and drug crimes as well as major dealers. Particular emphasis might be placed new users are most on buyers and sellers involved in gun offences, since gun violence in drug readily deterred or markets is strongly associated with homicide. diverted into the use of other substances. 3. Track the flow and engagement of drug selling arrestees with the drug Enforcement is weaker treatment system for some period after arrest. at controlling The feasibility of such metrics must be established and requires greater mature markets. management and implementation skills than we possess. However, there is no ’ doubt that a new set of metrics to align with a new set of goals is required.

Reducing crime: One of the oldest insights At first blush, this is a chastening turn in the about policing is that specialised units focus Conclusion research and policy consensus. On reflection, only on the offences for which they are though, this is neither good nor bad news.

responsible. In a world of non-specialised However disappointed police might be Drug policy discourse was once anchored offenders, such units often ignore other that their efforts rarely appreciably move in debates over whether supply-side crimes; the burglary squad was uninterested equilibrium drug prices, this knowledge enforcement could appreciably increase in the drug activities or the gun sales of might also be liberating. Law enforcement production costs, thus raising equilibrium burglars.45 Much of the harm caused by might now enjoy greater leeway to focus on prices, reducing use and ultimately reducing drug dealers arises from other offences. those social harms most amenable to police drug-related social harms. The supposed Drug enforcement should therefore target interventions. efficacy of supply-side enforcement is now the most dangerous or the most violent contested across the supply chain in most Police can also, in good conscience, do less drug-involved offenders within a particular markets for most substances. In mature if this reduces the harms associated with drug market. markets, there is surprisingly little evidence enforcement efforts which do not, at the that marginal increases in enforcement raise margin, seriously disrupt drug markets. equilibrium prices. The overall market impact Police will have plenty to do in most large of more-intensive supply-side measures is cities of Europe or North America. If their role generally limited. in drug markets is now less central or urgent, they will hardly be standing idle.. 56 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 57

Notes

1 H. A. Pollack and P. H. Reuter, of Chicago Press, 2005), 315–38; 21 Caulkins and Reuter, ‘How Drug ‘Does Tougher Enforcement Make Caulkins and Reuter, ‘How Drug Enforcement Affects Drug Prices’. Drugs More Expensive?’, Addiction Enforcement Affects Drug Prices’, 22 K. J. Riley, Crack, Powder Cocaine, 109, no. 12 (2014): 1959–66. P. H. Reuter and J. P. Caulkins, ‘Purity, and Heroin : Drug Purchase and Use Price and Production: Are Drug 2 J. P. Caulkins and P. Reuter, Patterns in Six US Cities (Washington, Markets Different?’, in Illicit Trade ‘How Drug Enforcement Affects D.C.: U.S. Dept. of Justice, Office and the Global Economy, by C. C. Drug Prices’, Crime and Justice of Justice Programs, National Storti and P. De Grauwe (Cambridge, 39, no. 1 (2010): 213–71. Institute of Justice, 1998). MA: MIT Press, 2011), 7–30. 3 J. K. Cunningham, R. C. Callaghan, 23 J. P. Caulkins, P. Reuter, and L. J. 13 UNODC, ‘Monitoreo de Cultivos de and L. Lon-Mu, ‘US Federal Cocaine Taylor, ‘Can Supply Restrictions Coca 2014’ (United Nations Office Essential (‘precursor’) Chemical Lower Price? Violence, Drug Dealing on Drugs and Crime, July 2015). Regulation Impacts on US Cocaine and Positional Advantage’, The Availability: An Intervention 14 This is a very crude calculation. B.E. Journal of Economic Analysis Time–series Analysis with Temporal Drawing on Kilmer et al’s (2015) & Policy 5, no. 1 (2006), Article 3. Replication’, Addiction 110, no. estimate that total consumption 24 S. Poret, ‘Paradoxical Effects of 5 (May 1, 2015): 805–20. in 2007 was about 250 tons and Law Enforcement Policies: The assuming a seizure rate of about 4 This section draws heavily Case of the Illicit Drug Market’, 40%, total shipments to the US from on Pollack and Reuter, ‘Does International Review of Law and Colombia (almost the exclusive Tougher Enforcement Make Economics, 18th Annual Conference supplier to the US) were about Drugs More Expensive?’. of the European Association of 400 tons. The DEA often reports Law and Economics, Vienna, 5 E.g. Cunningham, Callaghan, and in press releases that it has made Austria, 22, no. 4 (2002): 465–93. Liu, ‘US Federal Cocaine Essential cases against drug smugglers (‘precursor’) Chemical Regulation handling 2-3 tons per month; 25 J. Miron, ‘The Economics of Drug Impacts on US Cocaine Availability’. this would suggest that the top Prohibition and Drug Legalization’, 10 might account for 200 tons. Social Research 68, no. 3 (2001): 6 D. Mejia, P. Restrepo, and S. V. Rozo, 835–55 ; W. E. Block and V. Obioha, ‘On the Effects of Enforcement on 15 J. Forero, ‘Venezuela’s Drug- ‘War on Black Men: Arguments for Illegal Markets: Evidence from A Trafficking Role Is Growing Fast, the Legalization of Drugs’, Criminal Quasi-Experiment in Colombia’, US Report Says’, The Washington Justice Ethics 31, no. 2 (2012): 106–20. SSRN Scholarly Paper (Rochester, NY: Post, July 19, 2009, http://www. Social Science Research Network, washingtonpost.com/wp-dyn/ 26 W. Small et al., ‘Impacts of August 15, 2014), http://papers. content/article/2009/07/18/ Intensified Police Activity on ssrn.com/abstract=2480999. AR2009071801785.html. Injection Drug Users: Evidence from an Ethnographic Investigation’, 7 B. D. Crane, A. R. Rivolo, and G. 16 D. Kushner, ‘Drug-Sub Culture: The International Journal of Drug Policy, Comfort, ‘An Empirical Examination Latest Way to Get Cocaine Out of Cities and drugs: responding to of Counterdrug Program Colombia? Underwater’, The New drugs in the City of Vancouver, Effectiveness’, Institute for Defense York Times, April 23, 2009, http:// Canada, 17, no. 2 (2006): 85–95. Analysis, January 1997, p.87. www.nytimes.com/2009/04/26/ magazine/26drugs-t.html. 27 K. Beckett, ‘Race, Drugs, and Law 8 I. Kuziemko and S. D. Levitt, ‘An Enforcement’, Criminology & Public Empirical Analysis of Imprisoning 17 P. R. Keefe, ‘How a Mexican Drug Policy 11, no. 4 (2012): 641–53 ; K. Drug Offenders’, Journal of Cartel Makes Its Billions’, The New Beckett, K. Nyrop, and L. Pfingst, Public Economics 88, no. 9–10 York Times, June 15, 2012, http:// ‘Race, Drugs, and Policing: (August 2004): 2043–66. www.nytimes.com/2012/06/17/ Understanding Disparities in Drug magazine/how-a-mexican-drug- Delivery Arrests*’, Criminology 9 C. F. Manski, J. V. Pepper, and C. V. cartel-makes-its-billions.html. Petrie, ed., Informing America’s Policy 44, no. 1 (2006): 105–37. on Illegal Drugs: What We Don’t Know 18 S. H. Decker and M. T. Chapman, 28 M. Kleiman, When Brute Force Keeps Hurting Us (Washington, D.C.: Drug Smugglers on Drug Smuggling: Fails: How to Have Less Crime National Academy Press, 2001). Lessons from the Inside (Philadelphia: and Less Punishment (Princeton: Temple University Press, 2008). 10 D. Mejia and P. Restrepo, ‘The Princeton University Press, 2009). War on Illegal Drug Production 19 M. Tzvetkova et al., ‘Dealing with 29 B. L. Benson et al., ‘Is Property and Trafficking: An Economic Cocaine and Heroin in Italy: Crime Caused by Drug Use or by Evaluation of Plan Colombia’, in Business Strategies and Operations’, Drug Enforcement Policy?’, Applied Illicit Trade and the Global Economy, in Reframing Addictions: Policies, Economics 24, no. 7 (1992): 679–92. ed. C. C. Storti and P. De Grauwe Processes and Pressures, by P. (The MIT Press, 2011), 229–56. Anderson, G Bühringer, and J. 30 J. E. Prieger and J. Kulick, ‘Violence Colom, The ALICE RAP Project, in Illicit Markets: Unintended 11 P. H. Reuter and M. A. R. Kleiman, 2014, 74–89, http://www.alicerap. Consequences and the Search for ‘Risks and Prices: An Economic eu/resources/documents/ Paradoxical Effects of Enforcement’, Analysis of Drug Enforcement’, Crime doc_download/216-alice-rap-e- SSRN Scholarly Paper, ID 2517824 and Justice 7 (1986): 289–340. book-reframing-addictions-policies- (Rochester, NY: Social Science 12 J. P. Caulkins and R. J. MacCoun, processes-and-pressures.html. Research Network, 2013), http:// papers.ssrn.com/abstract=2517824. ‘Deterring Imperfectly Rational 20 See http://www.dea.gov/about/ Actors: The Case of Drug wall-honor/wall-of-honor_bios.shtml Enforcement’, in The Law and Economics of Irrational Behavior, by F. Parisi and V. Smith ed. (University 58 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 59

31 D. Shirk and J. Wallman, Arrests Among Injection Drug Decreased Opioid Overdose Deaths’, ‘Understanding Mexico’s Drug Users in California’, Journal of Urban The American Journal of Emergency Violence’, Journal of Conflict Health 84, no. 3 (2007): 423–35. Medicine 33, no. 9 (2015): 1201–4. Resolution 59, no. 8 (2015): 1348–76 35 J. P. Caulkins and P. H. Reuter, 40 A. A. Braga, ‘Getting Deterrence ; J. Osorio, ‘The Contagion of Drug ‘Towards a Harm Reduction Right?’, Criminology & Public Policy Violence Spatiotemporal Dynamics Approach to Enforcement’, Safer 11, no. 2 (2012): 201–10 ; D. Kennedy of the Mexican War on Drugs’, Journal Communities 9, no. 1 (2009): 9–24. and S. Wong, ‘The High Point Drug of Conflict Resolution 59, no. 8 (2015): Market Intervention Strategy’ 1403–32 ; G. Calderón et al., ‘The 36 D. Weisburd and L. Green, ‘Policing (Washington, D.C: Department Beheading of Criminal Organizations Drug Hot Spots: The Jersey City Drug of Justice, July 2009), https:// and the Dynamics of Violence in Market Analysis Experiment’, Justice www.highpointnc.gov/police/ Mexico’, Journal of Conflict Resolution Quarterly 12, no. 4 (1995): 711–35 D. docs/The_High_Point_Drug_ 59, no. 8 (2015): 1455–85. Weisburd et al., ‘Is Problem-Oriented Market_Intervention_Strategy. Policing Effective in Reducing Crime 32 P. H. Reuter, ‘The Mobility of Drug pdf ; D. Mejía, M. J. Uribe, and A. M. and Disorder?’, Criminology & Public Trafficking’, in J. Collins ed., Ending Ibáñez, ‘Una Evaluación Del Plan Policy 9, no. 1 (2010): 139–72 N. the Drug Wars (London: LSE IDEAS, de Consolidación Integral de La Corsaro et al., ‘Overview of: “The 2014), http://www.lse.ac.uk/IDEAS/ Macarena (PCIM)’, Documentos Impact of Drug Market Pulling publications/reports/pdf/LSE-IDEAS- CEDE (Universidad De Los Andes- Levers Policing on Neighborhood DRUGS-REPORT-FINAL-WEB01.pdf. CEDE, 2011), https://ideas.repec. Violence: An Evaluation of the High org/p/col/000089/008740.html. 33 K. M. Blankenship and S. Koester, Point Drug Market Intervention,”’ ‘Criminal Law, Policing Policy, CAPP Criminology & Public Policy 41 J. P. Caulkins et al., ‘Markov Chain and HIV Risk in Female Street Sex 11, no. 2 (2012): 165–66. Modeling of Initiation and Demand: Workers and Injection Drug Users’, The Case of the US Cocaine 37 M. Kleiman, Against Excess: Drug The Journal of Law, Medicine & Ethics Epidemic’, Health Care Management Policy for Results (BasicBooks, 30, no. 4 (2002): 548–59. ; L. Maher Science 7, no. 4 (2004): 319–29. 1993) ; M. Moore and M. Kleiman, and D. Dixon, ‘Policing and Public ‘The Police and Drugs’ (US 42 Caulkins and Reuter, ‘Towards Health: Law Enforcement and Harm Department of Justice, Office a Harm Reduction Approach Minimization in a Street-Level Drug of Justice Programs, National to Enforcement’, p.10. Market’, British Journal of Criminology Institute of Justice, 1989). 39, no. 4 (1999): 488–512 ; Small et 43 M. H. Moore, ‘Policies to Achieve al., “Impacts of Intensified Police 38 J. S. Denton et al., ‘An Epidemic Discrimination on the Effective Price Activity on Injection Drug Users.” of Illicit Fentanyl Deaths in Cook of Heroin’, The American Economic County, Illinois: September Review 63, no. 2 (1973): 270–77. 34 S. Burris et al., ‘Addressing the ‘Risk 2005 through April 2007’, Environment’ for Injection Drug 44 Caulkins and Reuter, ‘Towards Journal of Forensic Sciences Users: The Mysterious Case of the a Harm Reduction Approach 53, no. 2 (2008): 452–54. Missing Cop’, Milbank Quarterly 82, to Enforcement’. no. 1 (2004): 125–56 ; A. N. Martinez 39 J. Rando et al., ‘Intranasal Naloxone 45 J. H. Skolnick, Justice without Trial: et al., ‘The Impact of Legalizing Administration by Police First Law Enforcement in Democratic Syringe Exchange Programs on Responders Is Associated with Society (Wiley, 1966). 58 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 59 Drug Policing: What is it Good For?

Michael Shiner

ears ago I spoke at a drugs conference alongside a police chief from Canada. summary We were both fans of The Wire, which he described as ‘the most realistic’ depiction Yof drug policing he had ever seen. In the show’s ‘bravest and most radical storyline,’ Major ‘Bunny’ Colvin creates a series of ‘free-zones’ in Baltimore’s Western District, where ■■ The notion that policing cannot drug enforcement is not a police priority and dealers are given immunity from arrest and stamp out demand for drugs and prosecution.1 The aim is to push the street level drug trade into the free-zones where it will should be reoriented to reduce be ‘least harmful.’ The experiment is successful in clearing drug dealing off residential street associated harms is not new. corners, which show signs of coming back to life; public health workers and harm reduction ■■ The difficulties of enforcement experts move into the free-zones, distributing condoms and clean injecting equipment; and are reflected in the emergence of a global drug trade ‘of enormous the crime rate drops by 14 per cent in five weeks. When Bunny informs his bosses about proportions’ – 3% of world trade, this policy of selective non-enforcement they accuse him of having ‘legalised drugs’ and of making it the third largest sector having ‘lost his fucking mind.’ He is effectively demoted and forced into premature retirement behind oil and arms. on a reduced pension. During the subsequent post-mortem, the Mayor, impressed by the ■■ The prevalence of drug use varies reduction in crime, thinks about trying to salvage the initiative, musing: if only ‘we can call sharply between countries, but not this shit something other than what it is.’ But he is quickly reminded of the political realities in a way directly related to drug and the free-zones are shut-down. This apparently fanciful tale encapsulates the central policy: repressive regimes do not have lower rates of use than paradox of drug policing - what is politically acceptable cannot be achieved, but what is liberal regimes. achievable is not politically acceptable. ■■ The claim that prohibition represents an effective price control mechanism is problematic, not The Origins of Harm ‘Given that crimes such as drug least because there are other, more Reduction Policing distribution may be occasioned in ways efficient, ways of achieving the same which are more or less socially harmful goal. Under legalisation, taxes could The notion that policing cannot stamp (e.g. with or without shootings), it follows increase drug prices. out demand for drugs and should be that the policy of harm minimization ■■ Established drug markets have reoriented to reduce the associated can be invoked. This concept is now proved highly resilient in the face of harm is not new and nor is the idea widely accepted as an aim in relation to significant seizures. of free-zones entirely fictitious. Dorn drug consumers: minimizing the social, legal, and medical harms that may be ■■ Policing can cause or and South made the case for harm exacerbate drug-related harm reduction policing some 25 years ago associated with drug consumption, through ineffectual market on the basis that it ‘seems easier for the as well as trying to reduce drug consumption itself, are now accepted as reduction strategies. legal apparatuses to reshape patterns the twin goals of prevention. It may now ■ The alternatives are problem of crime, including drug markets, than ■ be time to discuss harm minimization oriented strategies which reduce 2 to prevent them.’ In making their case, in relation to drug distribution. The harm even if the size of the market Dorn and South describe how policing remains unaltered. question is, given that we cannot totally is implicated in creating or exacerbating prevent illegal drug markets (and ■■ Problem oriented strategies some of the harms associated with there is reasonable consensus on that may also mitigate the police’s drug markets. Noting that suppliers proposition), what sort of markets do we reputational damage associated least dislike, and how can we adjust the with enforcement-led approaches. and enforcement agencies interact with each other, they argue that the control mix so as to push markets in the cultivation of informants and the least undesired direction?’3 escalation of penalties pushed the drug trade into being more security conscious The practicalities of harm reduction policing and violent than it would otherwise were simultaneously being explored in Zurich, have been. This increasing brutality, Switzerland, where something like a free-zone they claim, had been used to legitimise was created in Platzspitz park, with a view to heavier law enforcement, reinforcing the containing the city’s growing heroin problem.4 spiral of violence. It was to reverse this Police tolerated small-scale dealing and public spiral that Dorn and South raised the injecting so long as it remained geographically possibility of extending the principle of contained, while clean needles were distributed harm reduction to policing: to users to combat the spread of HIV. 60 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 61

The Platzspitz attracted users and dealers illicit drugs account for 3% of world trade, that can be used for state services, including from outside the city and the ‘needle- making it the third largest sector behind oil healthcare:19 ‘Raising tobacco taxes so park,’ as it came to be known, was closed and arms.11 The global prevalence of drug that they account for at least 70 percent of down in 1992 amid complaints from local use is currently considered to be stable, retail prices would lead to significant price residents and concerns among politicians with around 246 million people aged 15 increases, induce many current users to quit, about the city’s international reputation. to 64 years or 5% of the population having and deter numerous youth from taking up The social workers and doctors involved in engaged in such behaviour during the tobacco use, leading to large reductions in the Platzspitz initiative insisted that it had its last year.12 Official estimates also point to the death and disease caused by tobacco advantages, noting that the concentration 187,100 drug-related deaths over the same use.’20 of users in one place meant they could period. The prevalence of drug use varies While insisting that prohibition pushes prices be given clean injecting equipment and sharply between countries, but does not do up, Caulkins acknowledges that it ‘clearly be helped quickly in cases of overdose. so in a way that is straightforwardly related fails if it is saddled with the impossible Problems persisted despite the closure of to drug policy: countries with stringent aspiration of eliminating all drug use’ and the needle-park and were arguably more regimes do not have systematically lower has been pursued in the US ‘far beyond the difficult to address because the addict rates of use than those with more liberal point of diminishing returns.’21 Established population had dispersed. In time, various regimes.13 Despite massive investment in drug markets have proved highly resilient harm reduction initiatives, including needle enforcement efforts, for example, the US in the face of significant seizures and market exchanges, supervised injecting sites and, and UK have been left with significant drug disruptions are mostly due to happenstance eventually, heroin assisted therapy were problems.14 rather than concerted enforcement efforts: introduced across Switzerland, displacing there are no clear examples of large-scale the traditional reliance on law enforcement. arrests of dealers disrupting a market and These innovations have yielded significant Drug offences pose a it is extremely difficult for enforcement benefits in the form of HIV prevention and particular challenge to agencies to achieve sufficient reductions crime reduction, convincing policy-makers ‘ law enforcement because 22 in supply to increase retail price. Despite and persuading a sceptical Swiss public.5 they represent a form of massive investment in enforcement efforts ‘victimless’ or ‘consensual’ and substantial increases in the number of crime. The crux of the people imprisoned for drug offences, the problem here is that if price of heroin and cocaine has fallen in ‘the victim’ is a willing the US over the last 30 years; an apparent The Challenge of participant then ‘there is Drug Policing paradox that led Caulkins and Reuter no party to the act who to conclude: ‘Most of the advantages of has an interest in prohibition can be attained with modest Drug offences pose a particular challenge being the plaintiff.’ levels of overall enforcement coupled with to law enforcement because they represent targeting of dealers whose behaviour poses a form of ‘victimless’ or ‘consensual’ crime. a particular risk to the community (e.g., use It has, nonetheless, been suggested’ that The crux of the problem here is that if ‘the of juvenile distributors, violence against the failure of prohibition may have been victim’ is a willing participant then ‘there is competitors).’ Ultimately then, Caulkins and overstated. Caulkins argues this point, no party to the act who has an interest in Reuter seem to agree with Dorn and South: claiming that prohibition increases drug being the plaintiff.’6 This creates practical elimination of the drug market is unrealistic prices far beyond what they would be in difficulties for policing, because crimes and enforcement should concentrate on a legalised market, thereby constraining are typically investigated and convictions reducing associated harms. A problem availability and use.15 Elsewhere, with secured on the basis of information provided remains, however, because some of what Reuter, Caulkins suggests that ‘enforcement by victims and witnesses. In the absence of prohibition does to push prices up - even acts almost like a tax’ and that ‘it is hard to specific intelligence, police tend to rely on a with modest levels of enforcement - causes identify any large costs of delivering drugs more proactive and discretionary approach or exacerbates harm. Caulkins and Reuter to final users other than those directly to drug offences than other forms of street themselves have noted ‘in passing’ that related to illegality and enforcement.’16 crime.7 Such tactics can reshape local drug high prices are responsible for some of There is broad agreement that prohibition markets, but are resource intensive and their the violence in drug markets, since they does increase the price of illegal drugs, effects are difficult to sustain over the longer- provide an incentive for theft and make the though the size of the increase is a matter term: activities that may be displaced to trade attractive to those with a proclivity to of dispute,17 and there is reasonable other areas often return once the operation violence.23 We might add that prohibition evidence that demand for some drugs, at is over.8 also provides near monopoly-profits for least, is responsive to price.18 The claim that those willing to break the law, creating The difficulties of enforcement are reflected prohibition represents an effective price opportunities for corruption and criminal in the emergence of a global drug trade ‘of control mechanism remains problematic, diversification, while pushing dependent enormous proportions.’9 A flurry of activity however, not least because there are other, drug users into acquisitive crime in order to aimed at strengthening international more efficient, ways of achieving the same fund their drug use.24 drug control during the early 1970s was goal. Under legalisation, governments could followed by an ‘explosive worldwide growth levy taxes on drugs to push prices up. The Faced with resilient drug markets and in production and trafficking of virtually WHO has noted that raising taxes ‘is the the limitations of what enforcement can all types of illicit drugs.’10 The scale of the most cost-effective measure for reducing achieve, few national governments have problem can be gauged from estimates that tobacco use,’ while also increasing revenues been willing to be as openly ‘pragmatic’ 60 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 61

as the Swiss. A more common response the police.34 Although drug distribution is has been one of evasion and denial in an The Harms of Drug Policing replete with possibilities for violence, its effort to maintain the foundational ‘myth’ actual role is often overstated. Criminal of sovereign state control.25 Drug offences, Harm reduction recognises that policy organisations do not lie outside the general perhaps more than any other, have exposed interventions may have adverse rules of human organisation and drug the inability of nation states to control consequences.30 That attempts to limit the dealing networks adapt to environmental crime within their territorial borders and availability of controlled substances are factors, particularly the need for security: yet political administrations have routinely themselves a source of significant harm highly flexible networks, often based on disregarded evidence that ‘drug use is not is not seriously in dispute. In 2008, the relationships of trust that are insulated by responsive to criminal penalties and that Executive Director of the UNODC identified frequent ‘cut-outs’, seem best adapted to this criminalisation brings its own pathologies 35 the following unintended consequences of context. The primary motives are economic (notably street violence and disrespect drug control:31 rather than criminal, moreover, and ‘to a for authorities).’26 The US ‘war on drugs’ large degree, those who participate in drug provides one of the clearest manifestations • The consequences of a huge dealing and brokerage are most usefully of the desire to re-impose control and criminal black market which thrives viewed as small business entrepreneurs has ‘all the hallmarks of a sovereign state by getting prohibited substances and as rational economic actors.’36 Based dealing with its limitations by denying from producers to consumers. The on their study of middle market drug they exist.’27 Away from the gaze of the financial incentives to enter this distribution in the UK, Pearson and Hobbs mass media and politicians, however, the market are enormous and there ‘is note that business principles predominate criminal justice state has had to come to no shortage of criminals competing and ‘violence-avoidance’ is the general rule terms with the realities of widespread to claw out a share of a market in because violence attracts attention and offending. Various ‘adaptive strategies’ have which hundred fold increases in is ‘bad for business;’ that violence is most been used to preserve the viability of the price from production to retail are usefully understood as a consequence of system and to maintain a sense of efficacy. not uncommon.’32 market dysfunction and disorganisation; As well as making much greater use of • Policy displacement: the need and that, where it does occur, violence is cautions and fixed penalties to divert cases for law enforcement has diverted essentially instrumental, to secure contract away from courts, police have scaled down 37 attention away from public health, compliance or to enforce debt collection. expectations, redefined their aims, and which is ‘clearly the first principle Although law enforcement provides modified the criteria by which success is of drug control’ but has been the default response to violence in drug judged.28 Rather than seeking to eliminate ‘displaced into the background, markets, the evidence suggests that the drugs trade, the focus has shifted onto more honoured in lip service and such responses are likely to be counter- managing or containing the problem by rhetoric…[than] in actual practice.’33 productive. According to a recent systematic disrupting the market and settling for review of the literature: modest improvements at the margins. • Geographical displacement or the Success is proclaimed not on the basis of balloon effect: squeezing drug prevalence of drug use or even price, but supply in one place through tighter ‘…drug law enforcement interventions on the number of arrests made and the control often produces an increase are unlikely to reduce drug market amount of drugs seized. The rationale here in activity in another place. violence. Instead, and contrary to the is summarised by Bean: conventional wisdom that increasing drug • Substance displacement: if the law enforcement will reduce violence, the use of one drug is controlled existing scientific evidence base suggest ‘If low-level policing means moving dealers by reducing supply or demand, that drug prohibition likely contributes to a different site, displacing them, then suppliers and users move on to drug market violence and increasing so be it. This constitutes an advance. It to another drug with similar homicide rates and that increasingly means the new site is likely to be second sophisticated methods of disrupting illicit best as far as the dealers are concerned, psychoactive effects, but less drug distribution networks may in turn otherwise they would have selected it as stringent controls. increase levels of violence.’38 their favoured site, and it also means that it will take longer to re-establish contacts. • The way we perceive and deal Dealing is about creating an atmosphere with users of illicit drugs: a system Faced with this apparently ‘paradoxical’ of trust, which means trust regarding the appears to have been created in association, the authors identify several security of the deal as well as the quality which those who are addicted to ‘causative mechanisms’ that explain how of the drug supplied. Low-level policing drugs find themselves excluded and helps destroy that trust, and makes the policing might reshape drug markets in drug market less secure for those operating marginalised, heavily stigmatised, ways that increase violence. Research, within it... No-one is suggesting that these and often unable to find treatment they note, has shown how the removal of measures solve the problem, but they offer even when they may be motivated existing drug distribution networks has a more coherent approach than chasing to want it. the perverse effect of creating a lucrative high-level dealers, busting them and then chasing their replacements… A uniformed Policing can cause or exacerbate drug- vacuum that others will seek to fill. Under police presence, posted strategically in the related harm in three main ways: firstly, by these circumstances, ‘violence may be an middle of the drug market, may be all that is increasing the violence associated with drug inevitable consequence of drug prohibition required and it is likely to act as a reassuring distribution; secondly, by increasing the when groups compete for massive profits’ sig to the local population that something without recourse to courts and other means is being done. Whether this will eliminate health harms directly related to drug use; 39 dealing is a moot question.’ 29 and thirdly, by damaging the legitimacy of of resolving disputes peacefully. The authors also point to a process of ‘target 62 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 63

hardening,’ whereby drug organisations become as well as use of physical restraints (chokeholds), Despite massive increasingly militarised in the face of enhanced law stun guns and pepper spray: perhaps the most investment in enforcement. severe example of such harm comes from Thailand, ‘enforcement efforts ‘where a federally ordered police crackdown resulted As well as displacing potential public health in reports of thousands of extra-judicial killings of and substantial responses, policing contributes to the ‘risk suspected drug users and dealers.’46 increases in the environment’ of drug use by encouraging high- number of people risk behaviours and undermining harm reduction Enforcing drug laws runs the risk of significantly imprisoned for drug efforts.40 In their ‘seminal’41 ethnographic study damaging the legitimacy of the police and criminal offences, the price of of Australia’s principal street level heroin market, justice system. The impact of police contact on public heroin and cocaine has Maher and Dixon describe how users and dealers trust and confidence is famously asymmetrical: fallen in the US over adapt to intense police pressure to avoid detection.42 poor or unsatisfactory contact has a large negative the last 30 years; an Among other things, police crackdowns were found effect, while good or satisfactory contact has a much apparent paradox that to encourage oral and nasal storage and transfer of smaller positive effect.47 This pattern is particularly led Caulkins and Reuter heroin, increasing the risk of transmitting infectious marked in relation to police initiated encounters and to conclude: ‘Most diseases and overdose (if heroin is swallowed is likely to be all the more so when such encounters of the advantages inadvertently or to conceal it from the police). are based on a high degree of discretion. For most of prohibition can Numerous studies have shown how police pressure of the last decade, police in England and Wales be attained with can exacerbate the risks associated with injecting.43 have conducted close to a million stop-searches modest levels of Access to sterile syringes is one of the main planks a year, around half of which have been for drugs.48 overall enforcement of harm reduction, but injecting drug users are The vast majority of these drug searches were coupled with targeting often reluctant to access syringe exchanges or targeted at low-level possession offences (mainly of dealers whose carry syringes for fear of being arrested. Under such of cannabis) and fewer than one-in-ten resulted in behaviour poses a conditions, users are more likely to share syringes arrest. Ethnographic research suggests that drug particular risk to the with others, use discarded syringes or attend searches are often based on stereotypes about community (e.g., use ‘shooting galleries,’ increasing the risk of transmitting who ‘looks likely,’49 while a recent inspection found of juvenile distributors, blood-borne pathogens such as HIV. The threat of that more than a quarter of stop-searches lacked violence against detection and confiscation creates pressure to inject sufficient grounds to justify the lawful use of the competitors).’ quickly and users may rush the process, further power.50 Speculative searches for minor ‘consensual’ increasing the risks of abscesses, bacterial infections offences in the absence of objective grounds are ’ and overdose. Police crackdowns also increase likely to promote defiance and a sense of alienation, careless disposal of syringes as users may simply undermine respect for the law and co-operation drop their injecting equipment on the street to avoid with the police, and may even lead to self-help being stopped or arrested. Having documented this violence.51 kind of heightened risk-behaviour, Maher and Dixon The policing and prosecution of drug offences is show that police pressure resulted in an ‘alarming’ not applied equally to all those who use drugs increase in Hepatitis C among injecting drug users.44 and the ‘deliberately inflicted pains of drug control A similar link was identified by a US study, which have usually fallen most heavily on the poor and found that various indicators of legal repressiveness, visible minorities.’52 Drug policing in England and including the number of ‘hard’ drug arrests and Wales weighs heavily on black and minority ethnic police employees, were positively associated with the communities and is a key driver of ethnic disparities prevalence of HIV among injecting drug users, while throughout the criminal justice system.53 Massive having no effect on rates of injecting drug use.45 disparities are also evident in the US, where the As well as prompting increases in risk-behaviour, ‘war on drugs’ reproduces historically entrenched police activity can disrupt users’ engagement patterns of racial disadvantage.54 These disparities with services if it is undertaken in the vicinity of challenge the promise of equality before the needle exchanges or treatment agencies and may law and foster a sense of disillusionment that is discourage users from seeking medical assistance contributing to a crisis of legitimacy: most African during or following an overdose out of fear that Americans consider the ‘war on drugs’ to be ‘unfair they will be arrested. Finally, physical confrontation by design’ and this perception negatively affects between drug users and police is ‘a common source their expectations of the police and the nature of of health-related harm’ involving physical searches their engagement with the criminal justice system.5 62 63 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY |

injecting drug users during the injecting process; should not arrest or The Challenge of Harm Reduction Policing interfere with people for possessing syringes or confiscate injecting equipment; and should keep their distance from needle exchanges,

treatment centres and supervised injecting facilities.61 Caulkins and Harm reduction targets the proximate causes of specific harms Reuter identify various ways in which police may play a more active and demands that the potential costs of an intervention are or ‘positive’ role in promoting harm reduction, noting that they are weighed against its potential benefits.56 This requires an analytic already engaged in some such practices. This more active role might perspective that, in the context of policing, has an affinity with involve referring drug users to treatment and/or social services; being problem oriented approaches. The emphasis here is on developing trained in overdose resuscitation and the use of related medications; a robust understanding of a particular issue and developing a more warning users when there are tainted or particularly dangerous drugs effective strategy for dealing with the underlying problem rather on the market; participating in early warning systems designed to than simply responding to a specific incident.57 Problem oriented detect emerging drug trends; cracking down on particularly violent policing also places considerable value on preventative responses dealers; and helping to enforce health, safety, and building codes to that do not depend on the criminal justice system and engage protect drug users (for example, by ensuring dance venues provide other public agencies, the community and the private sector. It also free water to reduce the risks associated with club drugs).62 carries a commitment to implementing the new strategy, rigorously evaluating its effectiveness, and building a body of knowledge The positive contribution police can make to reducing harm to users that supports further professionalisation. According to a recent is evident from jurisdictions with very different approaches to drug review of street-level drug law enforcement, problem-oriented control. In Portugal, for example, the emphasis on enforcement has policing is more effective than community-wide policing or targeted been displaced by a general shift toward public health interventions. enforcement activities in ‘hot spots,’ all of which were found to be a Drug possession was decriminalised in 2001 and police now refer marked improvement on ‘standard’ law enforcement tactics (such as users to a ‘dissuasion commission,’ made up of medical experts, social preventive patrols) that are geographically unfocused.58 workers and legal professionals. While non-dependent first-time offenders rarely face any further action, the commission can draw on The UK Drug Policy Commission advocated a similar ‘problem- various sanctions to encourage dependent users into treatment.63 solving’ approach when it called for drug-related law enforcement The introduction of this new arrangement was supported by a raft to be refocused on addressing harms. Such an approach ‘requires of harm reduction measures, including significant expansion of drug a more explicit consideration and broader understanding of drug treatment and methadone maintenance, and has been followed by harms at all stages of the enforcement process.’59 This entails: reductions in problematic drug use, HIV infection and drug-related deaths.64 The role of enforcement is also being reconsidered in the 1. Defining the problem: both in terms of the harms caused and US even though drug possession remains firmly criminalised. Several the features of drug markets that produce these harms. cities have adopted Law Enforcement Assisted Diversion (LEAD) for low-level drug and prostitution offences. This innovative programme 2. Prioritising areas for action: consult with community members provides officers with specialised harm reduction training and to understand their concerns and perceptions of how drug enables them to refer drug users directly to housing support, markets affect their lives. treatment and other services without sending them to court.65 If 3. Considering possible responses and their likely impact: to an offender agrees to participate in the programme and completes ensure that even when displacement and the potentially the intake process, criminal charges from the arrest are not filed.66 harmful side effects of enforcement are taken into account, Early indications suggest that LEAD not only reduces the number of there is likely to be a clear ‘net reduction’ in harm to people processed by the criminal justice system, but also reduces communities. recidivism and improves health and well-being among participants. 4. Identifying measures of success and impact: these should The most distinctive contribution policing can make to harm reduction go beyond numbers of arrests and seizures, price or levels of is by addressing market related harms.67 While the adaptability of purity, to demonstrate real gains in reducing drug problems. drug markets frustrates efforts to eradicate supply, it is this very flexibility that enables police to mould distribution practices in ways 5. Implementing an operation: taking steps to mitigate any likely that reduce harm even if the size of the market remains unaltered: increase in harms caused by enforcement interventions, while an open market may be changed into a closed one, for example or maximising the potential for reductions in harm. be pushed into a non-residential area. According to Caulkins and 6. Evaluating to understand the impact of operations on ‘real Reuter: ‘For enforcement to suppress a particularly noxious part of world’ harms: considerably more effort and resources are the market, it is not necessary to make that submarket or that selling required to demonstrate a sustainable improvement for the practice uneconomical; it is only necessary to make it uncompetitive relevant communities. relative to other, less noxious forms of selling.’68 They go onto identify three broad policing strategies for achieving this kind of Policing can combat drug-related harms in various ways other than market regulation: trying to limit the extent of drug use. It can do so by reducing the harm users experience per unit of consumption, by reducing the Focused deterrence or ‘pulling levers’ is a problem-oriented harms users impose on others, and/or by reducing the harms caused strategy that targets specific criminal behaviours carried out by production, trafficking and distribution of drugs.60 Most existing by a small number of chronic offenders who are vulnerable to studies focus on unit-harm to users and identify enforcement sanctions and punishment. Offenders are directly confronted with activities that should be avoided to reduce such harm. To this end, carefully collected evidence of their involvement and are informed it has been recommended that police should not interact with that continued offending will result in all potential sanctions, 64 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 65

or levers, being applied. This message is reinforced Conclusion and brief comments through crackdowns on those who continue to offend. on the ‘metrics debate’ Desistance among targeted offenders is rewarded through positive incentives, including access to social services as well as education and job opportunities. Prohibition sets the police an impossible task, the morality Focused deterrence was pioneered by The Boston Gun of which is weakened when enforcement itself becomes Project, which led to a sharp reduction in youth homicide, a source of harm.74 Reorienting police activity toward and has been widely replicated in the form of Operation the goal of harm reduction offers a viable alternative Ceasefire. It has also been successfully used to combat that is not only more efficient, but is also more ethical. open drug markets. A recent meta-analysis concluded There are, no doubt, significant barriers to such a move, that focussed deterrence is a very promising approach not least within police agencies,75 but there are good that has medium-sized crime reduction effects.69 reasons to think that these barriers can be overcome. Place-based enforcement uses police resources to move Harm reduction fits comfortably with key developments drug markets into areas where they are less harmful. in modern policing, including the rise of intelligence- This may mean pushing dealing activity away from led approaches and problem-oriented strategies, as schools, treatment centres, play-grounds and residential well as the emphasis on community engagement and 76 neighbourhoods into abandoned industrial areas. Where partnership-working. In other words, harm reduction the aim is to displace rather than eradicate the market, does not represent an alternative to current police police can use methods that are less expensive than arrest practices so much as a reorientation of focus. A recent and prosecution. Caulkins and Reuter cite the example of a survey of police enforcement personnel carried out by the particularly problematic crack house in Charleston, South UK Drug Policy Commission found widespread support for Carolina, that was shut down simply by parking a marked the basic premise of harm reduction: 90 % of respondents police car in front of the house for a few days: ‘Customers thought ‘it is very unlikely that the UK drug market will be were unwilling to walk past the car to buy drugs, so the eradicated in the foreseeable future;’ 68 % that the success crack house was soon abandoned. The sellers presumably of enforcement activity should be judged by its impact shifted operations elsewhere, but the pressing problem on drug harms; and 64 % that it is possible to reduce the was addressed quickly and with minimal resources.’70 harms caused by drug-markets without a reduction in use or sales.77 Targeting behaviours that are particularly harmful, including the use of violence, employment of juveniles Policing should not undermine other aspects of drug or selling near schools and treatment centres is a ‘natural policy, but should form part of a coherent strategy. extension’ of problem-oriented policing, which recognises The prevalence of drug use does not provide a good ‘there are many important drug-related problems target for drug policy as a whole because it is largely above and beyond drug use per se.’71 Concentrating unresponsive to prevention and law enforcement efforts, enforcement activities on dealers who engage in such while treatment and harm reduction programmes yield damaging behaviours may put them at a competitive other benefits, including lower crime, less transmission disadvantage compared with those who engage in less of blood-borne pathogens and fewer drug-related harmful practices. deaths. These metrics would make for good police Problem oriented strategies may also mitigate the performance indicators, alongside drug-related violence. reputational damage associated with enforcement-led The key point here is the same for policing as it is for approaches. By promoting preventative responses that do treatment, prevention or any other aspect of drug policy: not depend on the criminal justice system, such strategies are less reliant on the kind of speculative, coercive tactics ‘The proposition that policy can do little to that are so damaging to public trust and confidence. influence prevalence of use may seem nihilistic. The emphasis on working with partners, responding to Far from it. We know that bad policy choices community concerns, and reducing the collateral damage can make drug use, drug distribution, and associated with drug markets would also be expected production more harmful. All that policy changes to enhance police legitimacy. This kind of approach is can in fact do is to reduce the harmfulness of these activities…. [and] this proposition has particularly important for communities that are at the enormously liberating effects for policy. At sharp end of enforcement-led activities. The US based present, many laws and interventions are justified LEAD programme emerged out of litigation over racial because they might reduce drug use, even disparities in drug arrests and is attracting considerable though we know with greater confidence that interest from political leaders and law-enforcement they cause harms. If prevalence of use is no longer officials as a means of improving police/community seen as a plausible policy goal, then the harms relations in the post-Ferguson era.72 Where coercion can be avoided.’78 is deployed, trust and confidence may be protected by This is precisely what 30 years on the job had taught ensuring officers proceed in ways that are - and are seen to Bunny Colvin. be - procedurally and distributively fair.73 . 64 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 65

Notes

1 P. Owen, ‘The Wire Re-Up: Season 13 L. Degenhardt, et al., ‘Toward a 25 D. Garland, The Culture of Control Three, Episode Nine – Is Hamsterdam Global View of Alcohol, Tobacco, (Oxford: Oxford University, 2001) ; Realistic?’, The Guardian, 13 October Cannabis, and Cocaine Use: Findings M. Shiner, ‘British Drug Policy and 2009, http://www.theguardian.com/ from the WHO World Mental Health the Modern State: Reconsidering media/organgrinder/2009/oct/13/ Surveys’, PLoSMedicine 5, No. 4 the Criminalisation Thesis’, Journal of wire-drugs-season-3-episode-9. (2008): 1053–67 ; MacCoun and Social Policy 42, no. 3 (2013): 623-643. Reuter, Drug War Heresies ; Stevens, 2 Dorn and N. South, ‘Drug Markets 26 Garland, The Culture of Control, p.132. ‘Assessing UK Drug Policy from and Law Enforcement’, British a Crime Control Perspective’. 27 Ibid. Journal of Criminology 30, no. 2 (1990): 171–88, p.185. 14 MacCoun and Reuter, 28 N. Dorn and M. Lee, ‘Drugs and Drug War Heresies. Policing in Europe: From Low 3 Ibid. p.186. Streets to High Places’, in N. South 15 J. P. Caulkins, ‘Effects of Prohibition, 4 I. Foulkes, ‘Ten Years on from Needle (ed.), Drugs: Cultures, Controls and Enforcement and Interdiction on Park’, SwissInfo.Ch, 4 February Everyday Life (London: Sage, 1999) ; Drug Use’, in J. Collins (ed) Ending 2002, http://www.swissinfo.ch/ M. Lee and N. South, ‘Drugs Policing’, the Drug Wars (London: London eng/ten-years-on-from needle- in T. Newburn (ed.), Handbook of School of Economics, 2014). park/2517882 ; R. J. MacCoun and Policing (Collumpton: Willan, 2008). P. H. Reuter, Drug War Heresies: 16 J. P. Caulkins and P. H. and Reuter, 29 P. Bean, Drugs and Crime Learning from Other Vices, Times and ‘How Drug Enforcement Affects (Collumpton: Willan, 2008), Places (Cambridge, United Kingdom: Drug Prices’, in M. Tonry (ed) Crime p.179/180. Cambridge University Press, 2001). and Justice: A Review of Research, Volume 39, (Chicago: University 30 L. Maher and D. Dixon, ‘Policing and 5 J. Csete and P. J. Grob, ‘Switzerland, of Chicago Press, 2010), p.229. Public Health: Law Enforcement HIV and the Power of Pragmatism: and Harm Minimization in a Street Lessons for Drug Policy 17 J. Miron, ‘The Effect of Drug Level Drug Market’, British Journal of Development’, International Journal Prohibition on Drug Prices: Evidence Criminology 39, no. 4 (1999): 488-512. of Drug Policy 23, no. 1 (2012): 82–86. from the Markets for Cocaine and Heroin’, The Review of Economics and 31 UNODC, Making Drug Control ‘Fit 6 T. Duster, The Legislation of Morality: Statistics 85, No. 3 (2003): 522-530. for Purpose’: Building on the UNGASS Law, Drugs, and Moral Judgment Decade: Report by the Executive (New York; Free Press, 1970), p.244. 18 Caulkins and Reuter, ‘How Drug Director of the United Nations Office Enforcement Affects Drug Prices’. 7 M. Alexander, The New Jim on Drugs and Crime as a Contribution Crow: Mass Incarceration in the 19 WHO, WHO Technical Manual to the Review of the Twentieth Age of Colorblindness (New on Tobacco Tax Administration, Special Session of the General York: New Press, 2010). (Geneva: WHO, 2010), p.9. Assembly (Vienna: UNODC, 2008). 8 L. Mazerolle, D. Soole, and S. 20 Ibid., p.11. 32 Ibid., p.10. Rombouts, Street-Level Drug Law 21 Caulkins, ‘Effects of Prohibition, 33 Ibid. Enforcement: A Metaanalytic Enforcement and Interdiction Review (Oslo: The Campbell 34 A. Stevens, Applying Harm Reduction on Drug Use’, p.16. Collaboration, 2007) ; L. Mazerolle, Principles to the Policing of Retail D. Soole, and S. Rombouts , 22 Caulkins and Reuter, ‘How Drug Drug Markets (London: International Disrupting Street Level Drug Markets Enforcement Affects Drug Prices’; Drug Policy Consortium, 2013). (Washington DC: US Department McSweeney et. al., Tackling Drug 35 P. Kopp, Political Economy of Illegal of Justice Office of Community Markets and Distribution Networks in Drugs (London: Routledge, 2004). Oriented Policing Services, 2007); the UK ; P. H. Reuter and A. Stevens, T. McSweeney, P. J. Turnbull, and An Analysis of UK Drug Policy (London: 36 G. Pearson, ‘Drug Markets and M. Hough, Tackling Drug Markets UK Drug Policy Commission, 2007). Dealing: From “Street Dealer” to and Distribution Networks in the “Mr Big”’, in M. Simpson, T. Shildrick, 23 J. P. Caulkins and P. H. Reuter, UK (London: UK Drug Policy and R. McDonald (eds) Drugs in ‘Towards A Harm-Reduction Commission, 2008) ; P. H. Reuter, and Britain: Supply, Consumption and Approach to Enforcement’, A. Stevens, ‘Assessing UK Drug Policy Control (Basingstoke: Palgrave Safer Communities 8, no. from a Crime Control Perspective’, Macmillan, 2007), p.77. Criminology and Criminal Justice 1 (2009): 9-23, p.12. 37 G. Pearson, and D. Hobbs, 8, no. 4 (2008): 461-482. 24 E. Schur, Our Criminal Society: The Middle Market Drug Distribution Social and Legal Sources of Crime 9 A. Klein, Drugs and the (London: Home Office, 2001). World (London: Reaktion in America (Englewood Cliffs: Books, 2008), p.119. Prentice Hall, 1969) ; J. Young, The 38 Werb, et al., ‘Effect of Drug Drugtakers: The Social Meaning of Law Enforcement on Drug 10 P. Stares, Global Habit: The Drug Drug Use (London: MacGibbon and Market Violence,’ p.91. Problem in a Borderless World Kee, 1971) ; D. Werb G. Rowell, T. (Washington DC: Brookings Kerr, J. Montaner, E. Wood, ‘Effect 39 Ibid. Institution Press, 1996), p. 119. of Drug Law Enforcement on Drug 40 Stevens, Applying Harm Market Violence: A Systematic 11 Klein, Drugs and the World. Reduction Principles to the Review’, International Journal of Policing of Retail Drug Markets. 12 UNODC, World Drug Report 2015 Drug Policy 22, no. 2 (2011): 87–94 (New York: United Nations, 2015). ; see also Transform Drug Policy Foundation, After the War on Drugs: Options for Control (Transform Drug Policy Foundation: Bristol, 2006). 66 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 67

41 T. Kerr, W. Small and E. Wood, ‘The 56 Caulkins and Reuter, ‘Towards 72 Drug Policy Alliance, Public Health and Social Impacts A Harm-Reduction Approach Law Enforcement Assisted Diversion of Drug Market Enforcement: to Enforcement’. (LEAD); J. R. Emshwiller and G. A Review of the Evidence’, Fields, ‘Seattle LEAD Program to 57 M. S. Scott, ‘Getting the Police to International Journal of Drug Keep Offenders Out of Jail Draws Take Problem-Oriented Policing Policy 16 (2005): 210-220, p.212. Nationwide Interest’, Seriously’, Crime Prevention The Wall Street Journal, 20 July 42 Maher and Dixon, ‘Policing Studies 15 (2003): 49-77. 2015, http://www.wsj.com/ and Public Health’. 58 Mazerolle, et al., Street-Level Drug articles/seattle-lead-program-to- 43 For a summary of the literature Law Enforcement ; Mazerolle, et al., keep-offenders-out-of-jail-draws- see Kerr et al., ‘The Public Disrupting Street Level Drug Markets. nationwide-interest-1437434693. Health and Social Impacts of 59 UK Drug Policy Commission 73 T. R. Tyler Y. J. and Huo, Trust Drug Market Enforcement’. (UKDPC), Refocusing Drug-Related in the Law: Encouraging Public 44 D. Dixon and L. Maher, ‘Policing, Law Enforcement to Address Harms Cooperation with the Police and Crime and Public Health: Lessons (London: UKDPC, 2009), p.10. Courts (New York: Russell Sage, for Australia from the “New 2002) ; M. Shiner, ‘Regulation and 60 Caulkins and Reuter, ‘Towards York” Miracle’, Criminal Justice Reform’, in R. Delsol and M. Shiner A Harm-Reduction Approach 5, no. 2 (2005): 115-143. (eds) Stop and Search: The Anatomy to Enforcement’. of a Police Power (Basingstoke: 45 S. R. Friedman, H. L. F. Cooper, B. 61 Maher and Dixon, ‘Policing and Palgrave Macmillan, 2015). Tempalski, M. Keem, R. Friedman, Public Health’ ; Kerr et al., ‘The P. L. Flom, and D. C. Des Jarlais, 74 M. Shiner, ‘Drugs, law and the Public Health and Social Impacts ‘Relationships of Deterrence Regulation of Harm’, in P. Higate, of Drug Market Enforcement’. and Law Enforcement to Drug- R. Hughes, and R. Lart (eds) Drugs: Related Harms Among Drug 62 Caulkins and Reuter, ‘Towards Policy and Politics (Maidenhead: Injectors in US Metropolitan Areas’, A Harm-Reduction Approach Open University Press, 2006). AIDS 20, no. 1 (2006): 93–99. to Enforcement’. 75 Maher and Dixon, ‘Policing and 46 Kerr et al, ‘The Public Health and 63 R. Rosmarin and N. Eastwood, A Quiet Public Health’ ; Kerr et al., ‘The Social Impacts of Drug Market Revolution: Drug Decriminalisation Public Health and Social Impacts Enforcement’, pp.212-13. Policies in Practice Across the of Drug Market Enforcement’. Globe (London: Release, 2012). 47 B. Bradford, ‘Unintended 76 UKDPC, Refocusing Drug-Related Consequences’, in R. Delsol 64 Stevens, Drugs, Crime Law Enforcement to Address Harms. and M. Shiner (Eds), Stop and Public Health. 77 Ibid. and Search: The Anatomy of a Police Power (Basingstoke: 65 Drug Policy Alliance, Law 78 P. H. Reuter, ‘Why Has US Drug Palgrave Macmillan, 2015). Enforcement Assisted Diversion Policy Changed So Little over 30 (LEAD): Reducing the Role of Years?’, in M. Tonry (ed) Crime and 48 Her Majesty’s Inspectorate of Criminalization in Local Drug Control Justice in America, 1975-2025, Constabulary [HMIC], Stop and (New York: Drug Policy Alliance, Volume 42, (Chicago, The University Search Powers: Are the Police 2015) ; J. Wood, ‘An Innovative Drug of Chicago Press, 2013), p.54. Using them Effectively and Fairly? Policy That Works’, Open Society (London: HMIC, 2013) ; M. Shiner Foundations Voices, (New York: and R. Delsol, ‘The Politics of the Open Society Foundations, 2015). Powers’, in R. Delsol and M. Shiner (eds) Stop and Search: The Anatomy 66 COPS, ‘Seattle LEADS on Law of a Police Power (Basingstoke: Enforcement Diversion’, Community Palgrave Macmillan, 2015). Policing Dispatch 6, no. 4 (2013), http://cops.usdoj.gov/html/ 49 B. Loftus, Police Culture in a dispatch/04-2013/seattle_leads.asp. Changing World (Oxford: Oxford University Press, 2009) 67 Caulkins and Reuter, ‘Towards A Harm-Reduction Approach 50 HMIC, Stop and Search Powers. to Enforcement’ ; UKDPC, Refocusing Drug-Related Law 51 Bradford, ‘Unintended Enforcement to Address Harms. Consequences’; HMIC, Stop and Search Powers. 68 Caulkins and Reuter, ‘Towards A Harm-Reduction Approach 52 A. Stevens, Drugs, Crime and Public to Enforcement’, p.9. Health: The Political Economy of Drug Policy (Abingdon: 69 A. A. Braga and D. L. Weisburd, Routledge, 2011), p.95. ‘The Effects of Focused Deterrence Strategies on Crime: A Systematic 53 N. Eastwood, M. Shiner, and D. Review and Meta-Analysis of the Bear, The Numbers in Black and Empirical Evidence’, Journal of White: Ethnic Disparities in the Research in Crime and Delinquency Policing and Prosecution of Drug 49, no. 3 (2012): 328-358. Offences in England and Wales (London: Release, 2013). 70 Caulkins and Reuter, ‘Towards A Harm-Reduction Approach 54 Alexander, The New Jim Crow. to Enforcement’, p.17. 55 L. D. Bobo and V. Thompson, ‘Unfair 71 Ibid. p.18. by Design: The War on Drugs, Race and the Legitimacy of the Criminal Justice System’, Social Research 73, no. 2 (2006): 445-472. 66 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 67

Uncle Sam’s Cocaine Nosedive: A Brief Exploration of a Dozen Hypotheses

Beau Kilmer

ocaine consumption and trafficking have generated a significant amount of dependence, morbidity, and mortality in the US.1 Of course, SUMMARY Ccalculations of the harms imposed by cocaine must also consider the ■■ Heavy consumption of cocaine has created consequences of government efforts to control cocaine. While prohibition a tremendous amount of morbidity and raises the money price of cocaine, increases search costs and minimises mortality, with the US having spent billions of marketing (which helps suppress consumption), it is also responsible for dollars domestically and internationally trying increasing violence, incarceration and corruption, which has affected cities to reduce its availability. throughout the US as well as production and trafficking countries south of ■■ In the late-2000s, there was an unprecedented the border. decline in the US cocaine market: RAND estimated that the total consumption of pure However, beginning in 2006, there was with cocaine, few observers believe cocaine decreased by roughly 50% from 2006 an unprecedented decline in cocaine that increasing the intensity of supply- to 2010. Concurrently, the purity-adjusted consumption in the US. From 2006 to reduction efforts can have a substantive price increased by more than 40% at the 2010, RAND estimated that the total effect on demand. If supply–reduction retail level. amount of pure cocaine consumed in efforts are responsible for the decrease ■■ Despite the size and the swiftness of the the US may have decreased by 50%,2 in the consumption of cocaine in the consumption decrease, there is no consensus leading Caulkins et al.3 to argue that US, according to conventional wisdom about which policies or factors are responsible ‘the downturn competes with the this would mean that supply-side for the drop. 2001 Australian heroin drought as the interventions can do little to influence ■■ This essay briefly explores twelve hypotheses greatest ‘success’ in modern recorded mature consumption markets. drug history at the population level. for the decline which are neither exhaustive The goal of this essay is to draw attention nor mutually exclusive. It pays special Declines associated with the Australian to the large decline in US cocaine attention to the period immediately preceding heroin drought were proportionately consumption and stimulate discussions the consumption decrease, noting that there larger—closer to 80%—but the US and further research in this area. After was a 40% decline in the purity-adjusted retail cocaine market is vastly larger in providing evidence of the decrease, price from 2000 to 2006. Whether this price absolute size.’ decrease was simply part of a larger trend, it briefly explores twelve potential attributable to policy decisions, a random Despite the size and the swiftness of hypotheses that fall into three general fluctuation or something else, has yet to be the decrease, there is no consensus categories: supply-reduction policies, determined. about what caused the drop. Indeed, other explanations for a reduction ■■ If further research suggests that much of the the stunning decline has garnered in supply, and a shift in demand for consumption drop in the US is attributable to surprisingly little analysis in the research cocaine in the US. It then pays attention supply-side polices, this does not mean that literature.4 Understanding what caused to the period immediately preceding supply reduction is the optimal approach the drop carries with it important policy the consumption decrease, noting for reducing problem consumption; much implications considering the US has that there was a significant drop in depends on the particular drug, stage of the spent billions of dollars domestically cocaine prices between 2000 and 2006 epidemic, characteristics of the country and and internationally trying to reduce informing the twelfth hypothesis: mean the perspective of the decision maker. the availability of cocaine. Much of the reversion in retail cocaine prices.6 These It would, however, challenge the academic literature suggests that supply hypotheses are neither exhaustive nor conventional wisdom that supply-side reduction efforts —at best— can shift mutually exclusive, and some seem interventions can do little to influence trafficking patterns or have a short-lived more plausible than others. mature consumption markets. impact on the retail market.5 Especially 68 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 69

are used as inputs for neither the user ■■ Cocaine border seizures. EVIDENCE FOR AMERICA’S nor the consumption estimates). These Total cocaine seizures fell from about COCAINE NOSEDIVE measures are discussed in more detail 160 tonnes in 2006 to about 80 16 in Kilmer et al.,13 but highlights include: tonnes in 2010. ■■ Interagency Assessment of Cocaine For any addictive substance, a minority Movement (IACM). Estimates of ■■ Colombian cocaine production. of heavy users account for most of the The US gets most of its cocaine cocaine leaving South America for the 7 consumption. Since household surveys from Colombia14 and the US State US were reported to have increased do a poor job of capturing heavy users of Department15 estimated that pure from 2006 to 2007, but were then cocaine, heroin, and methamphetamine cocaine production in Colombia followed by nearly a 50% drop from 17 in the US (see, e.g., Rhodes et al),8 decreased from 510 tonnes in 2006 2007 to 2010. information from other sources must be to 260 tonnes in 2010. combined to generate estimates of the users and how much they consume and 6.0 spend. I worked on a RAND team tasked with generating the 2000-2010 estimates for White House Office of National Drug 5.0 Control Policy (ONDCP). Our approach differed in important ways from previous 4.0 efforts and there was a special focus on displaying the uncertainty surrounding these estimates. 3.0 Figure 1 presents our annual estimates for (in millions) each of the last 10 years of the number 2.0 of individuals who used powder or crack users cocaine Chronic cocaine on four or more days in the 1.0 past month. The ratio of the higher to lower estimates is roughly 2.3:1 and the uncertainty could be larger.9 Focusing on 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 the middle estimates, there was about a Middle 10% increase from 2002 to 2006 followed 3.3 3.1 2.9 2.9 3.1 3.2 3.2 3.0 2.8 2.7 2.5 by a 22% decline between 2006 and 2010. Lower 2.2 2.1 1.9 1.9 2.0 2.1 2.1 2.0 1.9 1.7 1.6 The number of those who used cocaine Higher 5.0 4.6 4.5 4.5 4.8 4.9 4.9 4.7 4.3 4.1 3.9 on 21 or more days in the previous month decreased by 27% from 2006 to 2010 Figure 1. Estimated number of those who used cocaine four or more times in the past 10 while the comparable figure for those month, 2000–2010 (in millions) who used on 4 to 10 days decreased by 19%. Since heavy cocaine users tend to use more per use day than less frequent users (see e.g., Frijns and van Laar),11 we would expect the change in pure cocaine consumed from 2006 to 2010 600 to exceed the change in the number of users consuming on four or more days in 500 the past month. Multiplying the number of users by average annual spending (by 400 type of user) generates total expenditures and dividing this by the average price paid 300 per pure gram purchased generates the total amount of pure cocaine consumed 200 in the US. The middle estimate for pure metric tonnes of cocaine consumed 100 hovered around 325 between 2004 and 2006 and then plummeted by roughly 0 50% (Figure 2). 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 While Figure 2 suggests there is a large Middle 292 258 278 278 324 327 322 282 200 161 145 amount of uncertainty surrounding Lower 193 175 183 182 209 211 208 182 132 105 92 these consumption figures, the size Higher 440 386 428 428 501 501 494 431 302 248 227 of the decline is consistent with a number of supply-side figures (which Figure 2. Pure cocaine consumption in the US (metric tonnes)12 68 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 69

Obviously, no one knows precisely how Supply-reduction policies much pure cocaine is consumed in the US Hypothesis #1. Coca eradication in or anywhere else. Thus, researchers and While each of the Colombia. The UNODC attributes much of decision makers are forced to triangulate aforementioned the reduction in Colombian coca available ‘ estimates has its from multiple data points. While each over this period to intense spraying and a of the aforementioned estimates has its idiosyncratic limits large increase in manual eradication efforts.19 idiosyncratic limits and is surrounded with and is surrounded Figure 3 displays estimates of hectares uncertainty, the fact that each of them with uncertainty, eradicated as well as potential production. suggests the amount of pure cocaine the fact that each The aerial eradication figures did increase, available to be consumed in the US could of them suggests but the available evidence suggests this have decreased by 50% during the last half the amount of pure approach tends to have a small effect,20 of the 2000s is noteworthy. cocaine available if any.21 to be consumed in the US could have Figure 3 also indicates that hectares of coca decreased by 50% bush eradicated manually in Colombia during the last HYPOTHESES FOR THE increased from 6,000 in 2004, and more than half of the 2000s is US COCAINE DROP 30,000 in 2005, to a peak of 96,000 hectares noteworthy... in 2008. Because it typically takes 18–24 explanations are months before coca cultivated in Colombia neither mutually This section highlights a number of ends up on US streets,23 the changes in exclusive nor potential explanations for the reduction manual eradication correlates with the exhaustive and fall in cocaine consumed in the US and/or large drop in consumption observed after into three general reduction in Colombian cocaine available 2007. Since a hectare of coca can produce categories: supply- for consumption (building on Caulkins et al. roughly 3 to 8 pure kilogrammes of cocaine reduction policies, and Kilmer et al.).18 These explanations are hydrochloride (there is a lot of debate about other explanations neither mutually exclusive nor exhaustive this yield figure, see e.g., Washington Office for a reduction in and fall into three general categories: supply- on Latin America),24 manual eradication of supply, and a shift in reduction policies, other explanations for a 90,000 hectares could be part of the story; demand for cocaine reduction in supply, and a shift in demand however, it would require some strong in the US. for cocaine in the US. assumptions about how growers responded ’ to these losses. Further complicating these

180 800

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Figure 3. Coca cultivation, eradication, and potential pure production in Colombia22 70 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 71

calculations, the UN also notes that: ‘Since the most important drug policy paper of for the US (e.g., UNODC notes that Costa Rica 2005, probably due to increased counter- this century or it is wrong. There is little has been a significant source of cocaine for narcotics pressure, the per-hectare yields middle ground.’ He then recommended Europe, but this may have declined in recent of coca fields went down in many growing that; 1), the analysis should be replicated years) and it is important to take these regions of Colombia.’25 by other authors using the same data and data with heaps of salt. First, there may be 2), researchers should conduct similar double-counting as multiple countries may Hypothesis #2. Reduction in the analyses of other countries’ chemical control take credit for the same seizure.32 Second, availability of precursor chemicals used interventions, noting that ‘if chemical these seizures are not potency-adjusted, to produce cocaine hydrochloride. A controls work, then controls implemented so it is unclear how much pure cocaine is 26 paper by Cunningham et al. suggests by any country that supplies chemicals to actually removed from the market. Third, another explanation. Their analysis of the coca laboratories should affect purity, seizures do not tell us what is exported, only seizure data from the DEA’s System to prices and seizures in every country supplied what is detected. Still, the increase from Retrieve Information from Drug Evidence by those laboratories.’ about 35 tonnes seized in Central America (STRIDE) suggests cocaine availability in 2005 to more than 100 tonnes in 2007 Hypothesis #3. Interdiction efforts in dropped in response to US regulations is noteworthy, raising the possibility that Colombia and Central America. Another on two chemicals produced in the US: some of the reduction in US consumption plausible explanation offered by Mejia29 is potassium permanganate in October 1989 may not be entirely attributable to actions in the increased focus on interdiction efforts and sodium permanganate, its direct Colombia.33 substitute, in December 2006.27 Potassium in Colombia after 2007, noting that ‘cocaine permanganate and sodium permanganate seizures increased from 127 metric tonnes Hypothesis #4. Fragmentation of criminal are interchangeable liquid oxidants used in 2006 to 203 in 2009 (an increase of 60%) organisations in Colombia. Garzón and to remove impurities from coca base in and the number of destroyed laboratories Bailey35 argue that the Colombian cocaine cocaine manufacture. The authors report increased from 2,300 to 2,900 (an increase of chain experienced a ‘double shock’ from that the first regulation led to a temporary 26%).’ Mejia argues that this shift reduced the 2006 to 2008. In addition to the increased drop in seizure volume, but the authors find net supply of Colombian cocaine by more than focus on interdiction described in the that after the latter, ‘cocaine seizure amount 50%.30 previous hypothesis, the authors reference work from Rico36 noting that the cartels ‘were dropped 22%, price rose 100%, and purity But the increase in cocaine seizures in weakened by government offensives and dropped 35%’ through at least early-2011. this period was not limited to Colombia: by internal disputes. The demobilisation of UNODC31 reports that beginning in 2006, In a published comment on the paper, paramilitary groups, with more than 30,000 28 there was a large increase in cocaine seizures Caulkins argued that ‘Cunningham et al.’s members, had an important influence on Central America (Figure 4). Not all of the analysis of the apparent effectiveness of the illegal drug chain. Criminal organisations cocaine essential chemical controls is either cocaine seized in Central America is targeted

Figure 4. Distribution of cocaine seizures in Central America, 2000-201134 120

100

80

60 Tons seized Tons 40

20

0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

El Salvador Guatemala Belize Honduras Costa Rica Nicaragua Panama 70 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 71

entered a phase of adaptation characterised by They cautiously conclude, ‘Overall, we consider the fragmentation of the large structures and the that stepped-up bilateral cooperation must be emergence of multiple groups.’ The implication taken into account as a force of change, without is that this changed drug‐trafficking structures overestimating the role that the Merida Initiative in Colombia, leading to less coca production and may have played in this dynamic.’39 fewer exports. This hypothesis also raises questions about what As Kilmer et al. argue, Hypothesis #5. Improved US-Mexico happened to the markets for other drugs that are there may have been cooperation to reduce drug trafficking. exported from Mexico to the US. I discuss this next. ‘a ‘perfect storm’ with Since the mid-1990s, most of the cocaine entering 37 the rapid increase in the US is believed to enter via the Mexican border. Garzón and Baily38 hypothesize that efforts by US Other explanations for a reduction manual eradication, in cocaine available in the US. increase in enforcement agencies near the Mexican border may have had an impact on the cocaine market: interdiction, reduced Hypothesis #6. Increased violence in Mexico availability of sodium made it harder to get cocaine to the US. Given permanganate, ‘A budget reauthorization in 2006 for the the eruption of violence in Mexico following Office of National Drug Control Policy instability in Mexico, President Calderon’s crackdown on drug trafficking (ONDCP) called for a strategic approach to increase in non- organisations in late-2006,40 this might have made drug interdiction on the Southwest border, US demand, etc. it harder for the DTOs to move cocaine though Together, these and the first such strategy report appeared in 2007. The main goal was to improve Mexico and into the US. But if this was the case we events may have had coordination among the scores of local, would also expect other drugs that are produced more of an impact on state, tribal, and federal‐level anti‐drug in Mexico, such as marijuana and heroin, to be cocaine consumption agencies along the border as well as with more expensive in the US. in the US than the their counterparts in Mexico. For example, sum of their effects administrative mechanisms such as Border In the 2000s it was estimated that 40% to 67% of the 41 had they occurred at Enforcement Security Task Forces were marijuana consumed in the US came from Mexico. different times, but created to improve coordination on the US National retail prices were flat over this period this is very much an side and Sensitive Investigative Units were while the THC of commercial-grade marijuana open question. set up to better work with Mexican agencies.’ from Mexico was increasing;42 suggesting that the potency-adjusted price for marijuana likely

decreased. As for heroin, the purity-adjusted In addition to these efforts, Garzón and Baily retail heroin prices in the US fell from $330 a ’ suggest that the Merida Initiative — which infused gram in 2000 to $209 in 2005, increased to $304 more than $2 billion into Mexican efforts to in 2006 and $327 by 2008, and then seemed to disrupt organised crime and support legal reforms fall below $200 by 2011 (all in 2012 $). The large since late 2007 — led to improved cross-border Figure 4. Distribution of cocaine seizures in Central America, 2000-201134 jump in heroin prices appeared to happen before collaboration and intelligence sharing that may Calderon’s crackdown, but a rigorous evaluation have had an impact; however, they are quick to of this hypothesis (and Hypothesis #5) should note the difficulty of assessing the impact of this look beyond national annual prices. More could cooperation on efforts to reduce drug trafficking.

35%

30%

25%

20%

15%

10%

Figure 5. Age Distribution of 5% Adult Crack Cocaine Treatment 0% Admissions, 1992 and 200854 18-20 21-25 26-30 31-35 36-40 41-45 46-50 51-55 56+

1992 TEDS (N=182, 835) 2008 TEDS (N=163,419) 72 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 73

be learned by focusing on both retail and shipped to other countries instead of the Hypothesis #9. Heavy cocaine users were wholesale prices in different regions of US. Amphetamines are and have always aging out of the market. Researchers the US, and, if possible, on a quarterly or been the stimulant of choice in Europe, but have noted that the average age of cocaine biannual basis.43 in the 2000s cocaine became more popular. treatment seekers increased throughout Information about cocaine consumption is the 1990s and 2000s (see Figure 5),52 which Hypothesis #7. Shift away from coca not tracked on an annual basis, but UNODC is consistent with a story that some heavy production in Colombia. Another estimated that between 1998 and 2008 cocaine users were aging out of use.53 While explanation for the drop in Colombia coca the amount of pure cocaine exported in this could be a partial explanation for the production is that there was a shift from coca Europe increased from 63 tonnes to 124 reduction in consumption, it is difficult to crops to illegal gold mining. Rico and Reuter44 tonnes.47 After assessing cocaine-related tell a story about why there was such a sharp note that ‘The rapid rise in the international deaths in nine European countries, Corkery48 decline for this group after 2006. prices of gold combined with the reduction concluded ‘There is a mixed picture … During of the average profit in cocaine smuggling Hypothesis #10. Substitution away from the 2000s, there was generally an increasing for the Colombian [drug trafficking cocaine to other substances. Others have upward trend in such cases, followed by a organization] DTOs as a consequence of hypothesized that some cocaine users may decline in most countries. Peaks occurred the market power of Mexican DTOs (Rico have shifted to other drugs such as cannabis in different years.’ This is consistent with a 2013) created powerful economic incentives during this period.55 While it is plausible review of annual reports submitted to the for a deep and ongoing transformation of that some heavy cocaine users may have EMCDDA from 2007 to 2010 by Mena et al..49 the landscape in Colombian rural areas.’ In replaced cocaine for other substances over addition, one of the authors interviewed Cocaine from multiple countries is exported this period, I am not aware of any studies former coca farmers, who suggested that to Europe, and UNODC estimates that from which have documented this. gold mining provided a larger net income, 2008 to 2010 25% of the cocaine seized in Hypothesis #11. A reduction in lower risk of enforcement interventions, Europe came from Colombia. Of course, disposable income due to the ‘great greater certainty in payment, and less we cannot assume that means 25% of the recession.’ Another hypothesis is that the stigma. Rico and Reuter further note that cocaine used in Europe came from Colombia; ‘great recession’ accelerated the reduction some Colombian DTOs actually prohibited we also do not know how this has changed in consumption since users had less money some farmers from cultivating coca in gold over time. Beyond Europe, there was also a available for cocaine. However, there is mining areas, so as to reduce the prospect of reported increase in cocaine consumption in a bit of timing issue here. Consumption government intervention.45 Brazil and Argentina in the 2000s.50 started to decrease around 2006, but the The question here is how much of this shift Hypothesis #8B. Decline in demand for great recession did not start until December to mining is what caused the reduction in cocaine in the US 2007, and many did not feel its effects until pure cocaine available in the US versus being later.56 Yes, some were feeling the pinch A reduction in supply that increases the a consequence.46 before the official start, but this could not price of cocaine will subsequently reduce have been the only driver, especially given Hypothesis #8A. Increased demand for consumption (see, e.g., Gallet).51 But there the price increase beginning in 2006 (Figure Colombian cocaine outside of the US. are other reasons why the demand for 6). However, one cannot rule out that the Another explanation for the reduction cocaine may have decreased in the US that reduction in income may have intensified in cocaine consumption is that some of may be independent of or intertwined with the price effect for some users. the cocaine produced in Colombia was the price change.

$800

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$200 Figure 6. Retail powder cocaine prices in the US (per gram), $100 1981-2012 (adjusted to 2012 $)57 $0 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 72 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 73

WHAT HAPPENED IN THE US BEFORE 2006?

The long-standing price decline in Figure 7. Retail powder and crack cocaine prices in the US (per gram), 1986-2012 the purity-adjusted price of cocaine (adjusted to 2012 $)60 in the US before 2006 has been well documented, and used by $450 some to raise questions about the ability of supply-side interventions $400 to raise prices (e.g., Pollack and $350 Reuter).58 Since the ONDCP price $300 series begins in 1981 and there $250 was a very large drop in retail $200 powder prices in the 1980s, charts such as those in Figure 5 (often $150 with a measure of a supply side $100 intervention such as incarceration $50 on the other Y-axis) make it hard $0 to see what has happened since 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 that drop. Separate prices for crack- cocaine (which accounted for about Powder Crack 75% of cocaine consumption in the 2000s)59 were not included in the ONDCP price series until 1986. Figure 6 plots the retail prices for both powder and crack cocaine from 1986 to 2012. After the large drop in the 1980s, Figure 7 suggests the inflation-adjusted prices stabilised, fluctuating around $200 per gram for most of the 1990s (in 2012 $). After 2000, purity-adjusted prices 61 steadily declined, bottoming out in Figure 8. Treatment admissions mentioning cocaine in TEDS, 1991-2011 2006 at about 40% of the 2000 value. We can also get some insight into 40% the pre-2006 period by examining 700000 other indicators. Figures 8 and 9 35% display publicly-funded treatment 600000 30% admissions involving cocaine and 500000 cocaine-involved overdose deaths, 25% respectively. In both of these series 400000 there seems to be a steady increase 20% 300000 from 2001 through 2006, followed 15% by a large decline. While the number 200000 of total treatment admissions to 10% facilities receiving public funding 100000 0% over this period increased by 11%, 0 the share of admissions mentioning cocaine increased 17% from 535,000 1992 1993 1994 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 to 624,000. Treatment admissions involving cocaine Percent of admissions involving cocaine 74 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 75

Insights from Figures 7 through 9 could be used when the outcome of the interest was to tell this story about the 2000 to 2006 period; particularly high or low. Going back to Figure as the price of cocaine plummeted, more people 7, there was a lot of fluctuation in the purity- Even if further experienced problems with cocaine; some died, adjusted crack prices in the 1990s (around $200 research suggests others were more likely to seek treatment.63 Of per gram), with a three-year increase from 1998 ‘ much of the course, one cannot prove this based on a simple to 2000 before the big decrease; however, the consumption drop trend analysis, but it is consistent with the sharp price in 1998 was very close to the price in 2003 is attributable to reversals in treatment admissions and overdose (circa $165 per gram). There was a further $30 supply-side polices, deaths over the 2006-2010 period when retail decline from 2003 to 2006, followed by the this does not mean prices increased by 40%. historic increase that bought the prices back that this is the closer to $200 per gram benchmark. This reversal suggests another potential optimal approach for explanation for some of the post-2006 Whether this price decrease was simply part of reducing problem price increase (and subsequent decline in a larger trend, attributable to policy decisions, a consumption. Much consumption): ‘mean reversion.’ random fluctuation or something else has yet depends on the to be determined; however, Figure 2 suggests particular drug, the Hypothesis #12. Mean reversion in that there was a large decrease in potential characteristics of cocaine prices pure production in Colombia from 700 tonnes the country, and Mean reversion is a statistical concept often in 2001 to 410 tonnes in 2004. Thus, it will be the stage of the used in the finance literature to suggest that hard to tell a story about an increase in cocaine epidemic. prices and stock returns eventually move back supply to the US leading to the 2000 to 2006 to their historic mean.64 Like its statistical cousin price drop unless it involves storage and/or ’ ‘regression to the mean,’ it can cause problems cocaine produced from coca grown outside for policy analysts, especially when the policy of Colombia. change being evaluated was implemented

Figure 9. National Overdose Deaths from Cocaine in the US, 2001-201462

8,000

7,000

6,000

5,000 Total 4,000 Male 3,000

2,000 Female

1,000

0 2001 2002 2003 2004 200 5 2006 2007 2008 2009 2010 2011 2012 2013 2014

Source: National Center for Health Statistics, CDC wonder 74 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 75

Conclusion Metrics

At this point it is not possible to say how much of the decline in The elimination of the Arrestee Drug Abuse Monitoring (ADAM) US cocaine consumption can be attributable to policy decisions. programme in the United States makes it more difficult to understand Caulkins et al.65 suspect that some combination of supply-side drug problems and drug markets in the Western Hemisphere. Drug factors likely accounted for the large price increase and subsequent consumption in the U.S. fuels drug production, drug trafficking, consumption decline, but do not make any statements about the and drug problems throughout the Western Hemisphere. Thus, role of eradication versus other supply-side phenomena. Garzón knowledge about consumption in the U.S. as well as data on drug and Bailey66 conclude that ‘supply reduction through disruption expenditures and drug markets is critical for measuring changes and interdiction can reduce and redirect cocaine trafficking but at in revenues to criminal organisations, and also in assessing the the cost of negative outcomes and collateral damage, at least in the efficacy of various drug control efforts. Given the concentration of short term.’ heavy drug users who are arrested and incarcerated in the U.S., the ADAM programme — which interviewed arrestees on drug use, drug As Kilmer et al.67 argue, there may have been a ‘perfect storm’ with purchases, and conducted drug tests (for validation purposes only) the rapid increase in manual eradication, increase in interdiction, — was an invaluable source for informing these metrics. While the reduced availability of sodium permanganate, instability in Mexico, National Survey on Drug Use and Health is useful for understanding increase in non-US demand, etc. Together, these events may have what is happening with alcohol and marijuana, it does a poor job of had more of an impact on cocaine consumption in the US than the tracking heavy users of cocaine, heroin and methamphetamine. sum of their effects had they occurred at different times, but this is very much an open question. This essay also pays attention to the period immediately preceding Along with colleagues, the author of this paper used a plethora of the consumption drop and raises the possibility of another potential data sources to generate the 2000-2010 national estimates of drug explanation: mean reversion. While much of the emerging discussion consumption, drug users, and drug expenditures for the White about cocaine consumption focuses on the post-2006 period, this House Office of National Drug Control Policy (ONDCP), but ADAM insight suggests that future research should also attempt to explain was arguably the most important source for understanding what why the retail purity-adjusted price of both powder and crack cocaine was happening with the markets for the more expensive drugs. decreased nearly 40% from 2000 to 2006. Since the pre-2006 price Unfortunately, ADAM was eliminated in 2004, partially resuscitated collapse may also be attributable to policy choices, this suggests that in 2007, and eliminated again after 2013. Until the programme is existing hypotheses may need to be updated. re-funded, or a suitable alternative that collects information from heavy users (in non-treatment settings) in the U.S. is developed, Even if further research suggests much of the consumption drop our efforts to understand the dynamics of cocaine, heroin, and is attributable to supply-side polices, this does not mean that this methamphetamine consumption and trafficking in the Western is the optimal approach for reducing problem consumption. Much hemisphere will be hampered. depends on the particular drug, the characteristics of the country, . and the stage of the epidemic. For example, Tragler et al.68 argue that the optimal mix of supply- and demand-side reduction policies can shift depending on the stage of the drug epidemic, with demand reduction generally becoming more attractive as the markets mature. In addition, assessments will also depend on one’s perspective: what may be optimal from a US perspective may not be optimal in other countries. For example, after noting that supply-reduction can reduce and redirect cocaine trafficking in the short run, Garzón and Bailey69 argue ‘that for Latin American countries the ‘benefits’ of maintaining an anti‐drug strategy that emphasises interdiction are far outweighed by the costs in terms of instability, insecurity, and public health problems.’ Finally, it is important to remember there are a number of different policies with varying levels of efficacy that fall under the labels of ‘supply’ or ‘demand’ reduction. Policy discussions are more productive when debates focus on specific interventions, programmes or laws instead of these vague categories—especially since actions by criminal justice agencies do not exclusively fall into the ‘supply reduction’ category.70 76 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 77

Notes

1 See, e.g., J. P. Caulkins, R. L. Pacula, 7 See P. J. Cook, ‘Paying the Tab: Policy (ONDCP), ‘Cocaine S. M. Paddock, J. Chiesa, ‘School- The Costs and Benefits of Alcohol Smuggling in Year 2010’ Based Drug Prevention: What Control’ (Princeton, NJ: Princeton (Washington, DC: ONDCP, 2012). Kind of Drug Use Does It Prevent?’ University Press, 2007) ; Kilmer et 18 Caulkins et al., ‘Cocaine’s Fall (RAND Corporation, 2002) ; NIDA, al., ‘What America’s Users Spend and Marijuana’s Rise’ ; B. Kilmer, ‘What Is the Scope of Cocaine Use on Illegal Drugs, 2000–2010’. G. Midgette, and C. Saloga, ‘Back in the United States?’, 2010, http:// 8 W. Rhodes et al., ‘What America’s in the National Spotlight: An www.drugabuse.gov/publications/ Users Spend on Illegal Drugs, 2000– Assessment of Recent Changes in research-reports/cocaine/what- 2006’ (Washington, DC: Executive Drug Use and Drug Policies in the scope-cocaine-use-in-united-states. Office of the President, 2012). United States’ (Washington, DC: 2 B. Kilmer, S. Everingham, J. Brookings Institution, 2015), http:// 9 From Kilmer et al., ‘What America’s Caulkins, G. Midgette, R. Pacula, www.brookings.edu/ /media/ Users Spend on Illegal Drugs, P. Reuter, R. Burns, B. Han, and R. Research/Files/Papers/2015/04/ 2000–2010’ : ‘The error band in Lundberg, ‘What America’s Users global-drug-policy/Kilmer–United- this figure reflects only one source Spend on Illegal Drugs, 2000–2010’ States-final-2.pdf?la=en. of uncertainty: The 95-percent (Washington, DC: Prepared for the confidence interval surrounding the 19 UNODC, ‘UNODC Reports Steep Office of National Drug Control share of adult male arrest events Decline in Cocaine Production in Policy. Washington, DC: Executive involving a positive drug test for Colombia’, 19 June 2009, https:// Office of the President, 2014). cocaine. There are many other www.unodc.org/unodc/en/ 3 J. P. Caulkins, B. Kilmer, P. H. Reuter, sources of uncertainty, but those press/releases/2009/june/unodc- and G. Midgette, ‘Cocaine’s Fall other sources of uncertainty do reports-steep-decline-in-cocaine- and Marijuana’s Rise: Questions not stem from sampling variability production-in-colombia.html. and Insights Based on New and so do not lend themselves to 20 D. Mejia, P. Restrepo, and S. Rozo, Estimates of Consumption and quantification. Thus, readers should ‘On the Effects of Enforcement on Expenditures in US Drug Markets’, not consider these as lower or Illegal Markets: Evidence from A Addiction 110 (2015): 728–36. upper bounds or as a 95-percent Quasi-Experiment in Colombia’, confidence interval for the number 4 Notable exceptions include recent August 2014, http://ssrn.com/ of chronic cocaine users.’ analyses by J. K. Cunningham, abstract=2480999, offer some R. C. Callaghan, and L. M. Liu, 10 From Kilmer et al., ‘What ideas about mitigation strategies: ‘US Federal Cocaine Essential America’s Users Spend on ‘Given this risk, they may still (“Precursor”) Chemical Regulation Illegal Drugs, 2000–2010’. grow coca bushes and play their Impacts on US Cocaine Availability: luck, or mitigate the effects of 11 T. Frijns and M. van Laar, An Intervention Time–Series the herbicide using a variety of ‘Amphetamine, Ecstasy and Cocaine: Analysis with Temporal Replication’, techniques. For instance, farmers Typology of Users, Availability and Addiction 110, no. 5 (2015): can spray molasses on the coca Consumption Estimates’, in Further 805–20 ; D. Mejia, ‘Plan Colombia: bushes to prevent the herbicide Insights into Aspects of the Illicit EU An Analysis of Effectiveness and from penetrating the foliage and Drugs Market, ed. Franz Trautmann, Costs’ (Washington, DC: Brookings killing the plant. In addition, they Beau Kilmer, and Paul Turnbull Institution, 2015), http://www. can cut the stem of the plant a few (Luxembourg: Publications Office brookings.edu/~/media/Research/ hours after the fumigation event, of the European Union, 2013), Files/Papers/2015/04/global-drug- enabling the plant to grow back a http://ec.europa.eu/justice/anti- policy/Mejia--Colombia-final-2. few months later. Finally, farmers can drugs/files/eu_market_full.pdf. pdf?la=en ; J. C. Garzón and J. reallocate their crops to areas less Bailey, ‘Displacement Effects of 12 From Kilmer et al., ‘What likely to be sprayed. However, these Supply‐Reduction Policies in Latin America’s Users Spend on alternatives are costly, which forces America: A Tipping Point in Cocaine Illegal Drugs, 2000–2010’. some farmers to start cultivating Trafficking, 2006–2008’, in The solely legal crops that are not Handbook of Drugs and Society, 13 See Chapter 7 of Kilmer et al., targeted by spraying campaigns.’ ed. H. H. Brownstein (West Sussex: ‘What America’s Users Spend 21 Based on an analysis of a natural Wiley, 2016) ; D. Rico and P. H. on Illegal Drugs, 2000–2010’. experiment, Mejia et al., ‘On the Reuter, ‘Taking the Balloon Effect 14 UNODC, ‘Transnational Organized Effects of Enforcement on Illegal Seriously: Assessing Plan Colombia’, Crime in Central America Markets’, argue that spraying (Forthcoming).5 J. P. Caulkins and and the Caribbean: A Threat campaigns have a small and P. H Reuter, ‘How Drug Enforcement Assessment’ (Vienna, 2012), significant effect. Rico and Reuter, Affects Drug Prices’, Crime and https://www.unodc.org/toc/en/ ‘Taking the Balloon Effect Seriously’, Justice 39, no. 1 (2010): 213–71. reports/TOCTACentralAmerica- raise questions about this finding 6 Given the serious data lags and loss Caribbean.html. that will hopefully be addressed in of an important data system, this 15 United States Department of future research. Also, see S. Rozo, essay does not attempt to provide State, ‘International Narcotics ‘On the Unintended Consequences insights to what has happened Control Strategy Report’, 2013, of Anti-Drug Programs in Producing to US cocaine consumption since http://www.state.gov/j/inl/rls/ Countries’, Online-Paper Collection 2010. These gaps are further nrcrpt/2013/vol1/index.htm. Association for Public Policy discussed in the section on Analysis and Management, 2014. metrics at the end of this paper. 16 See Figure 7.2 in Kilmer et al., ‘What America’s Users Spend 22 Created by ONDCP from multiple on Illegal Drugs, 2000–2010’. sources, published in Kilmer et al., ‘What America’s Users Spend 17 Office of National Drug Control on Illegal Drugs, 2000–2010’. 76 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 77

23 Ehleringer, J.R., Casale, J.F., Barnette, in enforcement in Colombia, (Santa Monica, CA: RAND, 2010). J.E., Xu, X., Lott, M.J., and Hurley, J.M., see J. C. Castillo, D. Mejia, and 42 Kilmer et al., ‘What America’s Users ‘14C Calibration Curves for Modern P. Restrepo, ‘Scarcity without Spend on Illegal Drugs, 2000–2010’. Plant Material from Tropical Regions Leviathan: The Violent Effects of of South America’, Radiocarbon 53, Cocaine Supply Shortages in the 43 One might also attempt to gain no. 4 (2011): 585–94 ; Ehleringer, Mexican Drug War’ (Center for additional insights by examining J.R., Casale, J.F., Barnette, J.E., Xu, Global Development, 2014), http:// purity-adjusted methamphetamine X., Lott, M.J., and Hurley, J.M., ‘14C www.cgdev.org/sites/default/ prices, but accounting for the large Analyses Quantify Time Lag Between files/scarcity‐leviathaneffects‐ amount of production in the US (and Coca Leaf Harvest and Street-Level cocaine‐supply‐shortages_1.pdf. production in other countries like Seizure of Cocaine’, Forensic Sci Canada), would complicate these 31 UNODC, ‘Transnational Organized Int 214, no. 1–3 (2012): 7–12. efforts. Also, there is tremendous Crime in Central America and the uncertainty about what happened 24 Washington Office on Latin Caribbean: A Threat Assessment’. with the US methamphetamine America, UN and US Estimates for 32 UNODC, ‘The Transatlantic Cocaine consumption from 2006 to 2010 (see Cocaine Production Contradict Market’ (Vienna, 2011), https:// Kilmer et al., ‘What America’s Users Each Other., 31 July 2012, http:// www.unodc.org/documents/ Spend on Illegal Drugs, 2000–2010’). www.wola.org/commentary/ data-and-analysis/Studies/ un_and_us_estimates_for_cocaine_ 44 Rico and Reuter, ‘Taking the Transatlantic_cocaine_market.pdf. production_contradict_each_other. Balloon Effect Seriously’. 33 UNODC, ‘Transnational Organized 25 UNODC, ‘World Drug Report’, 2011, 45 Ibid. Crime in Central America and https://www.unodc.org/documents/ the Caribbean’, notes that by the data-and-analysis/WDR2011/ 46 For additional thoughts about mid-1990s ‘an ever-increasing The_coca-cocaine_market.pdf. the complexity of this relationship share of the cocaine entering using data through 2014, see J. C. 26 Cunningham et al., ‘US Federal the United States did so over the Garzón and J. Wilches, ‘The Reasons Cocaine Essential (“Precursor”) southwestern land border. Initially, for the Surge in Coca Cultivation Chemical Regulation Impacts direct shipments to Mexico were in Colombia’ (Washington, DC: on US Cocaine Availability’. favoured, with stopovers in Central Woodrow Wilson Center, 2015), America largely limited to refueling. https://www.wilsoncenter.org/ 27 As Cunningham et al., ‘US Federal After 2000, and especially after article/the-reasons-for-the-surge- Cocaine Essential (“Precursor”) 2006, law enforcement increased coca-cultivation-colombia. Chemical Regulation Impacts on the risks of shipping directly to US Cocaine Availability’, note: ‘To Mexico. Consequently, Central 47 UNODC, ‘The Transatlantic date, four US regulations have America took on new importance as Cocaine Market’. targeted cocaine manufacturing a transit and storage area, and parts chemicals. The first, implemented 48 J. M. Corkery, ‘Analysis of the of the Caribbean were reactivated.’ 30 October 1989, regulated Data Sources, Numbers and potassium permanganate and 34 Reproduced from UNODC, Characteristics of Cocaine- the solvents methyl ethyl ketone ‘Transnational Organized Crime in Related DRD Cases Reported in (MEK), toluene, ethyl ether and Central America and the Caribbean’. Special Mortality Registries, or acetone. The second, implemented Eventually in General Mortality 35 Garzón and Bailey, ‘Displacement 22 October 1992, regulated sulfuric Registries (GMR) When Necessary’ Effects of Supply‐Reduction acid and hydrochloric acid. The (Lisbon: EMCDDA, 2012). Policies in Latin America’. third, implemented 19 May 1995, 49 Mena, G., Giraudon, I., Álvarez, E., regulated methyl isobutyl ketone 36 D. Rico, ‘Las Dimensiones Corkery, J.M., Matias, J., Grasaasen, (MIBK), a solvent whose use in Internacionales Del Crimen K., Llorens, N., Griffiths, P. and cocaine manufacturing increased Organizado En Colombia: Las Vicente, J., ‘Cocaine-Related Health following the 1989 regulation BACRIM, Sus Rutas Y Refugios’, in Emergencies in Europe: A Review [20]. The fourth, implemented 18 The Criminal Diaspora: The Spread of of Sources of Information, Trends December 2006, targeted sodium Transnational Organized Crime and and Implications for Service permanganate, a direct potassium How to Contain Its Expansion, ed. J. Development’, European Addiction permanganate substitute. Of these C. Garzón and E. Olson (Washington, Research 19, no. 2 (2013): 74–81. chemicals, potassium permanganate DC: Woodrow Wilson Center, 2013). and sodium permanganate, being 50 See CEBRID (Centro Brasileiro choke chemicals, may be most 37 UNODC, ‘Transnational de Informações sobre Drogas critical to realizing impacts on Organized Crime in Central Psicotrópicas), ‘VI Levantamento cocaine availability. Potassium America and the Caribbean’. Nacional Sobre O Consumo de Drogas Psicotrópicas Entre permanganate’s regulation in 38 Garzón and Bailey, ‘Displacement Estudantes Do Ensino Fundamental the United States is of particular Effects of Supply‐Reduction E Médio Das Redes Pública E interest, as the world’s largest Policies in Latin America’. potassium permanganate Privada de Ensino Nas 27 Capitais producer is a US company.’ 39 Garzón and Bailey, ‘Displacement Brasileiras’ (Sao Paulo: UNIFESP, Effects of Supply‐Reduction 2010) ; UNODC, ‘The Transatlantic 28 J. P. Caulkins, ‘Commentary on Policies in Latin America’. Cocaine Market’ ; B. Bagley, ‘Drug Cunningham et al. (2015): Essential Trafficking and Organized Crime in 40 V. Rios and D. Shirk, ‘Drug Violence Chemical Controls‐Miracle the Americas: Major Trends in the in Mexico: Data and Analysis From a Black Box?’, Addiction Twenty-First Century’ (Washington, through 2010’ (San Diego, CA: 110, no. 5 (2015): 821–22. DC: Woodrow Wilson Center, 2012). Transborder Institute, 2011). 29 Mejia, ‘Plan Colombia: An Analysis 51 C. A. Gallet, ‘Can Price Get the 41 B. Kilmer, J. P. Caulkins, and of Effectiveness and Costs’. Monkey off Our Back? A Meta- B. M. Bond, ‘Reducing Drug Analysis of Illicit Drug Demand’, 30 Mejia, ‘Plan Colombia: An Analysis Trafficking Revenues and Violence Health Econ 23 (2014): 55–68. of Effectiveness and Costs’. For in Mexico: Would Legalizing additional insight on the shift Marijuana in California Help?’ 78 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 79

52 H. Pollack, E. Sevigny, and P. H. 61 Based on Inter-University Reuter, ‘If Drug Treatment Works So Consortium for Political and Social Well, Why Are So Many Drug Users Research [distributor], ‘United Incarcerated?’, NBER Working Paper States Department of Health No. 16731 (2011), www.nber.org/ and Human Services’. Includes papers/w16731 ; Beau Kilmer et any mention, not just primary. al., ‘The US Drug Policy Landscape: 62 Chart reproduced from NIDA, Insights and Opportunities ‘Overdose Death Rates’, 2015, for Improving the View’ (Santa http://www.drugabuse.gov/ Monica, CA: RAND, 2012). related-topics/trends-statistics/ 53 A. Golub, E. Luther, and A. S. overdose-death-rates. Bennett, ‘A Socio‐Cultural View 63 Some may wonder if this increase of Trends in Drug Use Indicators’, in cocaine treatment admissions Addiction 110, no. 5 (2015). had lasting impact on the market; 54 Based on the annual Inter-University thus, contributing to the post-2006 Consortium for Political and Social decline. The increase may have Research [distributor], ‘United had some effect, but I have seen States Department of Health no research assessing this claim. and Human Services. Substance 64 See, e.g., J. Poterba and L. Summers, Abuse and Mental Health Services ‘Mean Reversion in Stock Prices: Administration. Center for Behavioral Evidence and Implications’, Journal of Health Statistics and Quality. Financial Economics 22 (1988): 27–59 (Annual) Treatment Episode Data ; S. Mukherji, ‘Are Stock Returns Still Set – Admissions (TEDS-A), Annual.’ Mean-Reverting?’, Review of Financial (Ann Arbor, MI), originally appeared Economics 20, no. 1 (2011): 22–27. in Kilmer et al., ‘What America’s Users Spend on Illegal Drugs, 2000–2010’. 65 Caulkins et al, ‘Cocaine’s Fall and Marijuana’s Rise’. 55 B. Nosyk, E. Wood, and T. Kerr, ‘The Rise of Marijuana and the Fall of 66 Garzón and Bailey, ‘Displacement Cocaine in the United States: For Effects of Supply‐Reduction Better, for Worse?’, Addiction 110, no. Policies in Latin America’. 5 (2015): 737–38 ; D. Weatherburn, ‘We Know Too Little About Demand: 67 Kilmer, Midgette, and Saloga, Comments on “Cocaine’s Fall”’, ‘Back in the National Spotlight’. Addiction 110, no. 5 (2015): 738–39. 68 G. Tragler, J. P. Caulkins, and G. 56 M. W. L. Elsby, B. Hobijn, and A. Feichtinger, ‘Optimal Dynamic Sahin, ‘The Labor Market in the Allocation of Treatment and Great Recession’ (Washington, Enforcement in Illicit Drug DC: Brookings Institution, 2010), Control’, Operations Research http://www.brookings.edu/ / 49, no. 3 (2001): 352–62. media/Projects/BPEA/Spring- 69 Garzón and Bailey, ‘Displacement 2010/2010a_bpea_elsby.PDF, Effects of Supply‐Reduction note: ‘Unemployment rose from a Policies in Latin America’. prerecession low of 4.4 percent to reach 10.1 percent in October 2009.’ 70 For example, diversion to treatment and other services; reducing 57 ONDCP, ‘National Drug Control overdose deaths by administering Strategy: 2014 Data Supplement’, Naloxone; abstinence orders in 2015, https://www.whitehouse. combination with frequent testing gov/sites/default/files/ondcp/ and swift-certain-fair sanctions policy-and-research/ndcs_ for those whose consumption data_supplement_2014.pdf. leads them to repeatedly threaten 58 H. Pollack and P. H. Reuter, ‘Does public health and safety. Tougher Enforcement Make Drugs More Expensive?’, Addiction 109, no. 12 (2014): 1959–66. 59 Kilmer et al., ‘What America’s Users Spend on Illegal Drugs, 2000–2010’. 60 ONDCP, ‘National Drug Control Strategy: 2014 Data Supplement’. 78 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 79

Cuidado: The Inescapable Necessity of Better Law Enforcement in Mexico

Vanda Felbab-Brown

ven as the administration of Mexico’s President Enrique Peña Nieto has scored important reform successes in the economic sphere, its security and law enforcement SUMMARY Epolicy toward organised crime remains incomplete and ill-defined. Despite the early commitments of his administration to focus on reducing drug violence, combatting ■■ Major human rights violations corruption, and redesigning counternarcotics policies, little significant progress has been related to the drug violence, achieved. Major human rights violations related to the drug violence, whether perpetrated whether perpetrated by organised by organised crime groups or military and police forces, persist – such as at Iguala, Guerrero, crime groups or military and police forces, persist in Mexico. where 43 students were abducted by a cabal of local government officials, police forces and organised crime groups. This has also been seen in Tatlaya and Tanhuato, Michoacán, ■■ President Peña Nieto’s administration has relied on where military forces have likely been engaged in extrajudicial killings of tens of people.2 the military and Federal Police: Meanwhile, although drug violence has abated in the north of the country, such as in Ciudad with similar lack of planning, Juárez, Monterrey and Tijuana, government policies have played only a minor role. Much of prepositioning and operational design as preceding President the violence reduction is the result of the vulnerable and unsatisfactory narcopeace – the Calderón’s administration. victory of the Sinaloa or Gulf Cartels. ■■ A 2012 CIDE study suggests over tunnel (a method he had also pioneered 60% of Mexico’s 250,000 prisoners, The July 2015 spectacular escape of the including 80% of female inmates, leader of the Sinaloa Cartel and the world’s for smuggling drugs and previously were jailed for drug crimes; 36% for most notorious drug trafficker – Joaquín used for escapes) showed the laxity and marijuana offenses. Guzmán Loera, known as El Chapo – perhaps complicity at the prison, and again ■■ Civil society has sought to advance from a Mexican high-security prison was spotlighted the continuing inadequate state policy innovation: e.g. influencing a massive embarrassment for the Peña of Mexico’s corrections system. the Supreme Court decision Nieto government. Yet it serves as another in November 2015 to allow In September 2015, in his yearly state-of- reminder of the deep structural deficiencies individuals the right to grow the-nation address, President Peña Nieto and distribute marijuana for of Mexico’s law enforcement and rule-of- committed himself to refocusing the personal use. law system which persists more than a final three years of his administration on decade after Mexico declared its war on the ■■ Policy innovations, such as deepening the rule of law, strengthening law decriminalising drug use, are drug cartels. enforcement and justice institutions, and important but not sufficient to The Peña Nieto administration often pointed combatting organised crime. That is indeed tackle organised crime. to the February 2014 capture of El Chapo as what Mexico needs to do. As discussed ■■ These innovations need to be the symbol of its effectiveness in fighting below, policy innovations in Mexico, such as coupled with comprehensive drug cartels and violent criminal groups legalisation of marijuana and depenalisation law enforcement (beyond high- value targeting), extending in Mexico. The Peña Nieto administration’s of drug use, are important and promise state presence, developing highlighting of Chapo’s capture was both many benefits. But they are unlikely on socioeconomic anti-crime efforts ironic and revealing: ironic, because the their own to reduce the power, violence, and strengthening citizen-state new government came into office criticising and impunity of Mexico’s organised crime. bonds. the anti-crime policy of the previous They need to be coupled with extending ■■ Indeed, robust state presence administration of Felipe Calderón of killing state presence, making socioeconomic and effective law enforcement is or capturing top capos to decapitate their anti-crime efforts in Mexico smarter and needed to ensure that organised sharper, and strengthening the bonds crime is excluded from a legal cartels; and revealing, because despite the drug trade. limitations and outright counterproductive between Mexico’s citizens and the state. effects of this high-value-targeting policy and Crucially, they need to be coupled with ■ Policing and rule of law are ■ improving law enforcement policies. There indispensable elements of despite promises of a very different strategy, suppressing violent criminality the Peña Nieto administration fell back into is no escape for Mexico from figuring out and illegal economies. So is relying on the pre-existing approach. In how to provide better policing. Some ways regulating the legal economies fact, such high-value-targeting has been at to start developing better policing as well so that they are not socially or the core of Pena Nieto’s anti-crime policy. as improving the larger anti-crime strategy, environmentally destructive. Moreover, Chapo’s escape from Mexico’s including its rule of law and socioeconomic most secure prison through a sophisticated components, are suggested below. 80 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 81

deterrence, even kidnapping and extortion and largely unable to deter violence Fizzled Energy and Same might be levelling off and becoming more escalation and reescalation. In fact, much of Old Problems of Peña predictable, although they are overall on the security policy reform momentum that Nieto’s Anti-Crime Strategy the rise overall in Mexico.8 The outcome has surrounded the Peña Nieto administration at been that the Mexican government has for the outset of its six-year term has prematurely At the outset of his administration, President the most part averted its eyes from the areas dissipated. Key pillars of the policy are Peña Nieto identified the need to reduce where violence declined, even as major law plodding along meekly, including the violence in Mexico as the most important enforcement challenges remain there and national gendarmerie, the new intelligence priority for his security policy. That was the the job is less than half accomplished. supercentre, and the mando único. Concurrently, deadlines for vetting all police right decision. Even if criminals are mostly The Peña Nieto administration has mostly units for corruption and links to organised killing other criminals (as the previous focused on putting out immediate security crime have been repeatedly missed and administration of President Felipe Calderón fires in areas where fighting among drug extended. As with many institutional reforms pointed to in order to belittle the deaths), trafficking groups has newly erupted, such in Mexico, there are large regional variations violence in any form, including violent as Jalisco, Tamaulipas, and the State of in the quality and even design of the reforms criminality, is highly costly and corrosive Mexico. Furthermore, the administration being implemented. However, at least the for society. Yet, according to the Mexican has often inadvertently triggered many Mexican Congress, overall a weak player in government, between 2007 and 2014, a of these outbreaks of violence. Despite its setting and overseeing anti-crime policy in staggering 164,000 people were murdered.3 rhetoric and early ambitions, the Peña Nieto Mexico, approved a new criminal code in administration fell straight back into relying After a year in office, Peña Nieto claimed the spring of 2014. The so-called National on the Mexican military in combination with important progress toward his objective Code of Penal Procedure (Código Nacional the Federal Police to cope with criminal of reducing violence by half in the first 6 de Procedimientos Penales) is critical in violence.9 Moreover, it did so with an months in office – with a 30% decrease in establishing uniform application of criminal essentially analogous lack of planning and organised crime-related homicides.4 At the law across Mexico’s thirty-one states and beginning of September 2014, the Peña Nieto the Federal District, and standardising administration released further crime and procedures regarding investigations, trials, anti-crime policy data, claiming that Mexico’s and punishment.11 homicide rate for 2013 decreased slightly to According to the 19 per 100,000, compared to 22 per 100,000 ‘ Mexican government, Instead of pushing ahead with institutional in 2012, with a total of 22,732 homicides between 2007 and 2014, a reforms, the Peña Nieto administration in 2013.5 Country-wide violence appeared staggering 164,000 people has highlighted poor coordination among to continue dropping in the first half of were murdered. national security agencies and local and 2014, with the State of Mexico, Guerrero, national government units as a crucial Chihuahua, Michoacán, Tamaulipas, Sinaloa, cause of the rise of violent crime in Mexico. Jalisco, and Baja California registering the ’ It has thus defined improving coordination highest murder rates.6 But the downward as a key aspect of its anti-crime approach prepositioning, and essentially the same trend was not sufficiently sustained, and without also focusing on the substance of operational design, as the previous Felipe levelled off well before reaching the goal of the policies. Calderón administration. In particular, the a 50% reduction. Additionally, homicides in current administration has adopted the New forms of violence – the rise of militias the first seven months of 2015 were running same non-strategic high-value targeting that in Michoacán and Guerrero and their co- about 3 percent above the 2014 figures.7 defined the previous one’s posture. Perhaps optation by organised crime – have also Moreover, the biggest drops in violence were with the exception of targeting the Zetas and emerged. In some ways, the willingness of experienced in the north of the country – Los Caballeros Templarios, this interdiction the government to act against the militias, Tijuana, Cuidad Juárez, and Monterrey – where posture continues to be undertaken mostly including to arrest and prosecute some, the violence reduction cannot necessarily on a non-strategic basis as opportunistic has been more encouraging than its other and solely be attributed to government intelligence becomes available, but without anti-crime policies. After initial neglect and policies. Rather, it has been the outcome of forethought, planning, and prepositioning back and forth between a tough line and new balances of power being established required to avoid new dangerous cycles embrace of the militias, the ultimate plan of among criminal groups in previously highly of violence and renewed contestation folding them into the Rural Defense Corps 12 contested hotspots, including the victories among local drug trafficking groups. This was the least bad option. However, the of the Sinaloa and Gulf Cartels against their recrudescence of high-value targeting is government has failed to effectively enforce rivals. Many of these balances of power partially the outcome of institutional inertia these plans. In Guerrero, the government has among the drug trafficking organisations in the absence of an alternative strategy, and not even been able to get the militia groups (DTOs) had already emerged in the last years of the relative operational simplicity of such to sign onto the deal. In both Michoacán and of the Felipe Calderón administration. After a targeting pattern, compared to a more Guerrero, many of the militias have become a decade of carnage that gave rise to new effective, but also more demanding, policy important sources of conflict and abuse, DTOs – Los Zetas, La Familia Michoacana, Los of middle-level targeting of the kind that is hardly acting as a stabilising force. Templarios – and saw their demise, Chapo’s recommend below.10 The militia option might seem seductive Sinaloa cartel, the largest, most powerful, The overall deterrence capacity of Mexico’s in the short term at a moment of crisis, but and widespread of Mexico’s drug trafficking military and law enforcement forces and it spells long-term problems for security, groups, remains the victor. In these areas justice sector continue to be very limited rule of law, and state legitimacy, as much in of newly established criminal control and Mexico as it has in Colombia and Afghanistan. 80 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 81

However, there are good reasons to doubt Moves toward Marijuana those arguments, particularly in the case Smuggled marijuana Legalisation in Mexico of Mexico. First, smuggled marijuana likely constitutes not much more than a fifth of the ‘ likely constitutes revenues generated by the DTOs or about not much more Although the Peña Nieto administration $1.5 billion a year, as a 2010 RAND study than a fifth of the revenues has failed to improve the core elements argued.19 Those are not bankruptcy numbers. generated by the DTOs or of security, civil society has sought policy about $1.5 billion a year, as innovations. As a result of the activism of Second, without robust state presence and a 2010 RAND study Mexican Society for Responsible and Tolerant effective law enforcement (both of which are argued. Those are not Consumption (SMART), in November 2015 elusive in significant parts of Mexico), there bankruptcy numbers. the Mexican Supreme Court declared that can be little assurance that organised crime individuals (up to a group of four people) groups would be excluded from the legal have the right to grow and distribute drug trade. In fact, they may have numerous ’ marijuana for personal use. The legal advantages over legal companies and judgement, not yet reversing existing laws manage to hold on to the trade, perhaps even To the extent that Mexico’s struggle but providing the basis for their overhaul, was resorting to violence to do so. Nor does mere against criminality is not merely about based on the principle of human rights, and legalisation mean that the state will suddenly reshuffling who has control and power in endorsed recreational activities (including become robust and effective. Persistent the criminal market, but about a broader recreational marijuana use) that do not deficiencies in the state explain why there extension and deepening of the rule of law harm others.16 Following the judgement, is so much illegal logging alongside legal and accountability in Mexico, any official the Mexican Senate proposed legalising logging, for example or why smuggling in endorsement of the militias fundamentally medical marijuana. The court ruling also set legal goods take place. If the state does contradicts that project. off a national debate on increasing limits not physically control the territory where of personal possession of marijuana and marijuana is cultivated – which in Mexico it The Peña Nieto administration’s focus other drugs. In 2009, Mexico decriminalised often does not – the DTOs could continue to on socioeconomic anti-crime policies possession of up to 5 grams (0.18 ounce) of dominate the newly legal marijuana fields, and other crime prevention measures marijuana and small amounts of hard drugs, still charge taxes and structure the life of the is laudable. But its signature anti-crime but limits were set at very low levels. growers, and even find it easier to integrate socioeconomic approach – the so- into the formal political system. Many oil called polígonos programme – has not Reducing the number of people arrested and and rubber barons started with shady been well-operationalised and is not imprisoned for nonviolent drug offenses are practices and eventually became influential integrated with law enforcement efforts. crucial and worthy goals. Mostly imprisoning (and sometimes responsible) members of The discreet efforts remain scattered: the users does not reduce drug use, and under the legal political space. But there are good theory, implementation, and monitoring some circumstances can even exacerbate it. reasons not to want the very bloody Mexican parameters of the national crime prevention Imprisoning people usually violates human capos to become legitimised. strategy are not yet adequately worked rights and can destroy people’s lives and out. These deficiencies undermine the social productivity. Crowded prisons are In Italy, gambling, including slot machines, programme’s effectiveness and risk,financially costly and often, particularly in were legalised precisely on the basis of dissipating the relatively small amount of Latin America, schools for criminals. A 2012 the argument that legalisation would take resources allocated to the effort. Monitoring study by the Mexican think tank CIDE argued gambling resources away from the mafia. and evaluation of the effectiveness of that over 60% of Mexico’s 250,000 prisoners, In fact, even as the gambling lobby and socioeconomic anti-crime efforts, including including 80% of female inmates, were jailed gambling itself, including socially-ruinous the polígonos approach, is particularly weak for drug crimes; 36% of which for marijuana gambling addiction, rapidly expanded, and nebulous.13 offences.17 Stigmatising and punishing users the mafia was able to dominate the legal undermines efforts to stem the spread of gambling business. It was able to increase its Importantly, the Peña Nieto administration HIV/AIDS and other communicable diseases. profits, use gambling to enter new regions of committed itself to paying greater attention For all those reasons, depenalising drug use Italy and set up loan-sharking and extortion to human rights issues, such as allowing is the right policy. rackets there, and exploit the legal gambling civilian claims of human rights violations for laundering illicit drug money, just as it by Mexico’s military forces to be tried in But proponents of legalisation in Mexico has previously used agriculture, trucking, civilian courts and establishing a victims’ also claim that legalisation would reduce the and restaurants.20 compensation fund.14 But the efforts violence, power, and impunity of organised to increase rule of law, justice, and the crime.18 They make at least two arguments: protection of human rights and to reduce Legalisation of marijuana (and possibly impunity and corruption remain very other drugs) would reduce the income of The increase in US demand much a work in progress, with policies and criminal crime groups, which would either ‘ for heroin, spurred by outcomes varying widely among Mexico’s push them out of crime altogether or make prescription opiate abuse states. Moreover, the cover-ups at Iguala them more peaceful. Drug legalisation and dependence, is and Tlatlaya, uninterested investigations of would free Mexico’s law enforcement to once again stimulating extrajudicial killings, and corruption scandals concentrate on other crimes, including expansion of poppy involving the president and his wife15 made murders, kidnappings, and extortions. cultivation in Mexico and the promise sound utterly hollow. in Guatemala. ’ 82 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 83

Third, a grey marijuana market would likely the two first US states to legalise marijuana, emerge. If marijuana became legal, the state police have to suppress smuggling out of the would want to tax it – to generate revenues and states and devote resources to policing the new The cultivation of illicit to discourage greater use. The higher the tax, the profitable, taxed, and nonviolent legal marijuana ‘ crops employs thousands, greater the opportunity for the DTOs to undercut trade.24 Corruption could well persist in a legal perhaps tens of thousands, the state by charging less. The narcos could or decriminalised economy. In Brazil, after drug of people. In fact, poppy set up their own fields with smaller taxation, possession for personal use was decriminalised, cultivation is among the snatch the market and the profits, and the the deeply corrupt police did not clean up. most labour-intensive state would be driven back to combating them Instead, they often continue to extort users and illicit economies, enabling and eradicating their fields. Such grey markets franchise pushers by threatening to book users those who sponsor it – exist alongside a host of legal economies, for greater amounts than personal limits unless whether insurgent groups from cigarettes, to stolen cars, to logging and they pay a bribe or buy from their pushers.25 or organised crime groups wildlife trade. As for example in the case of Legalisation is not a panacea.26 There are – to obtain extensive illegal logging alongside legal concessions, no shortcuts to improving Mexico’s law political capital. such grey markets can be violent, dominated enforcement. Rather, legalisation of marijuana in by organised crime, generating corruption, and Mexico would be more viable if Mexico first got exploitative of society. In Mexico itself, legal and the DTOs under control and pulled off effective ’ illegal logging and violence coexist in the same law-enforcement and justice reform. space in Michoacán and Guerrero, for example.21 Combatting wildlife trafficking in eastern and southern Africa has taken on the form of bush wars, with heavy firepower and high proclivity to use it by poachers, even the illegal trade Not Just Pot, but exists alongside a legal one or feeds into legal Poppy Cultivation distribution markets in China, such as in ivory.

Fourth and worse yet, Mexican DTOs can hardly Meanwhile, even if legalisation of marijuana be expected to take such a change lying down. cultivation for personal consumption in Rather, they may intensify the violent power Mexico also reduced industrial-scale marijuana struggle over remaining hard-drug smuggling plantations for export – or, more likely, if and distribution (notably, the shrinkage of expanding commercial cultivation of marijuana the US cocaine market is one of the factors in the United States priced out illegal cultivation 22 that precipitated the current DTO wars ). the in Mexico, another illegal crop is flourishing DTOs could intensify their effort to take over in Mexico. The increase in US demand for other illegal economies in Mexico, such as heroin, spurred by prescription opiate abuse the smuggling of migrants and other illegal and dependence, is once again stimulating commodities, prostitution, extortion, and expansion of poppy cultivation in Mexico and in kidnapping, and also over Mexico’s informal Guatemala. economy – trying to franchise who sells tortillas, jewellery, clothes on the zócalo – to mitigate Poppy cultivation in Mexico is nothing new; in their financial losses. They are already doing fact, it dates back to pre-WWII. Since the 1980s, so. If they succeed in franchising the informal Mexico did not disclose consistent data and economy and organising public spaces and undertook an uneven effort to monitor the street life in the informal sector (40% of Mexico’s levels of poppy cultivation and marijuana in economy), their political power over society will the country. Nonetheless, it is estimated that be greater than ever. They would also seek to poppy in Mexico cultivation in the 1990s and extort legal economies, whether restaurants in 2000s decades hovered between 20,000-25,000 Ciudad Juárez and Tijuana, foreign businesses hectares per year, compared to perhaps 30,000-

such as Coca Cola and mining in Guerrero or 40,000 hectares cultivated yearly with marijuana. 27 avocado and lime farmers and legal logging and This is a rather substantial level of poppy mining in Michoacán. In fact, they have already cultivation – on par with Burma in the 2000s and 28 expanded into such extortion, and indeed, higher than Thailand at its peak in the 1960s. At some of the bloody escalation of violence has the same time, about 15,000-20,000 hectares of been precisely over turf rights to extort legal opium poppy have been eradicated in Mexico businesses.23 during the 1990s and early 2000s, alongside some 20,000 to 30,000 ha of marijuana. In the Nor would law enforcement necessarily become first seven months of 2015, over 17,000 hectares liberated to focus on other issues or turn less of poppy were eradicated (and only some 2000 corrupt: The state would have to devote some hectares of illegal marijuana.)29 Eradication of resources to regulating the legal economy and illicit crops in Mexico has historically been carried enforcing the regulatory system. Even in the out by the Mexican military, often as a result of much more peaceful Colorado and Washington, US pressure. 82 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 83

During the 1970s, the Mexican authorities even rejecting US assistance for such another demonstration that there is no easy became concerned about a possible programmes.31 Indeed, serious alternative escape – neither legalisation nor negligence penetration of the drug trade by leftist livelihoods efforts would require extending – from extending effective and equitable guerrillas, such as the Popular Revolutionary both state presence, engaging in broader state presence and rule of law in Mexico, Army (EPR). The result was a trifecta and more equitable development and including effective and better-designed of sometimes contradictory policies: sustaining the resources and political law enforcement. cooperation between Mexican authorities wherewithal to tackle political and and Mexican drug traffickers to fight against economic power distribution in Mexico and the guerrillas; the sponsorship of anti-leftist the social marginalisation of many of its Conclusions and Policy militias by the Mexican state, sometimes communities. It is much easier to occasionally Recommendations connected to drug trafficking groups, and, simply eradicate the crops and the farmers’ paradoxically, also the temporary consent by livelihoods. Mexican authorities to an intense eradication An intense eradication campaign in the Despite how tired the Mexican public campaign sponsored by the United States, poppy and marijuana cultivation areas is with the awful criminal violence, and including aerial spraying. Whether as a result will severely complicate the efforts of the with politicians’ unfulfilled promises to of the anti-guerrilla policies or the guerrillas’ Mexican military and law enforcement eradicate it, the Peña Nieto administration own internal weaknesses, the guerrilla forces to pacify the festering Michoacán must not drop the ball in developing groups failed at the time to significantly and Guerrero, rid them of the rule of violent and implementing a comprehensive law penetrate the drug trade and have not organised crime, and perhaps for the first enforcement strategy. Without capable managed to robustly participate in it since. time bond its residents with the Mexican and accountable police who are responsive to the needs of the people from tackling Nonetheless, from 2007 when President state. Neglecting those areas – despite an street crime to suppressing organised crime Calderón decided to deploy the Mexican umpteenth Plan Guerrero (a government and who are backed-up by an efficient, military to fight against drug trafficking package of socioeconomic interventions accessible, and transparent justice system, groups and presumably provide public mostly amounted to discreet handouts) – is neither legal nor illegal economies will be safety, the intensity of eradication in Mexico cheaper and easier. But it comes at substantial well-managed by the state. fell off: since fewer soldiers were available and complex costs to the local residents and for this task. At the same time, prime areas ultimately to rule of law in Mexico. What is needed is a comprehensive law of poppy cultivation, such as in Guerrero One of the most dramatic incidents enforcement strategy (beyond high-value and Michoacán, became hotly contested involving Guerrero’s self-defence forces targeting), to sharpen Mexico’s anti-crime among Mexican drug trafficking groups, took place in early May 2015 in the town socioeconomic policies, and better integrate such as La Familia Michoacana, Los Zetas, of Chilapa. Although small in size, Chilapa them with policing. Policing and rule of law the Sinaloa Cartel, the Acapulco Cartel, is strategically-located on the foothills of are indispensable elements of suppressing Jalisco New Generation Cartel, and a myriad a major poppy growing area and a major violent criminality and illegal economies of splinter groups, such as the Guerreros logistical hub for the drug trade since it is and regulating the legal ones so they are Unidos presumably behind the Iguala the place with the only gas station in miles. not socially or environmentally destructive. abduction. Their fighting has tremendously Following an assassination of a local political However, for policing and law enforcement increased the fundamental insecurity of local candidate in April 2015, 300 civilians armed to be effective, they require that local populations, even as they depend on poppy with rifles, machetes, and sticks, followed populations do not fundamentally see and illicit crop cultivation for basic economic by pickup trucks with men sporting high- them as contrary to their human security, an survival. The outcome has been the rise of calibre weapons, seized the town. Although attitude that will prevent them from being anti-organised-crime militias as well as the the Mexican military and federal and respected and internalised by the citizens. co-optation of militias by organised crime. municipal police were present, they failed The cultivation of illicit crops employs to act against the self-proclaimed self- thousands, perhaps tens of thousands, of defence group. Whether out of intimidation, people. In fact, poppy cultivation is among indifference, complicity or on orders from the most labour-intensive illicit economies, higher up, the military and police stood by enabling those who sponsor it – whether while for several days the militias controlled Without capable and insurgent groups or organised crime groups the town, set up checkpoints, and detained accountable police who – to obtain extensive political capital.30 That people. At least 11 of those detained (and ‘are responsive to the needs is very much the case in Mexico where, perhaps as many as 30) have not been of the people from tackling like in other parts of the world, the poppy seen since. Townspeople believed that the street crime to suppressing farmers are some of the poorest and most self-defence force, which after several days organised crime and marginalised citizens, often also members left on its own accord, was actually the who are backed-up by an of indigenous groups. And in some areas, criminal gang Los Ardillos, fighting over efficient, accessible, and such as in the state of Michoacán, the drug the important heroin-turf with another transparent justice system, economy – both cultivation and trafficking – gang, Los Rojos.32 Regardless of whether neither legal nor illegal represents a substantial portion of the local the armed invasion was by a self-defence economies will be well- economy. force that ran amok or the self-defence label managed by the state. was appropriated by an organised crime Yet, Mexico has historically shown little group, its effect on the community was the interest in developing alternative livelihoods very opposite of increasing security. Yet ’ strategies toward illicit crop cultivation, 84 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 85

In Mexico, such a strategy includes: sufficient density of permanent-beat Moreover, alternative livelihoods deployments, and developing local programmes cannot be construed knowledge. as merely crop substitution ■■ Making Interdiction More Strategic or temporary cash-for-work programmes. They must address ■■ Dismantling Militias Interdiction must move beyond all the structural drivers of illicit

the current nonstrategic, non- economies. 35 They must encompass The Mexican government needs to prioritised, opportunistic targeting the generation of sufficient retain the resolve to monitor the posture. The most dangerous employment opportunities, such as militias diligently; prosecute those groups should be targeted first, through the promotion of high- who engage in criminal acts, such as with an eye toward local stability. value, labour-intensive crops as extortion and murders; and use any Targeting plans should be based on well as through off-farm income, opportunity it can to roll them back robust assessments of what kind infrastructure building, distribution and dismantle them. of law enforcement operations will of new technologies, marketing help trigger violence, and on strategies and the development of value- to mitigate and prevent such ■■ Doubling Up on Justice and Human added chains, facilitation of local outcomes, such as through force Rights microcredit, and establishment of prepositioning. access to land without the need to In 2016, the new accusatorial justice participate in the illicit economy, to ■■ Switching from High-Value Targeting system is supposed to be fully name a few of the most prominent to Middle-Layer Targeting functional throughout Mexico. As components. Incorporating broader such, the Peña Nieto administration human development aspects, Interdiction should shift away must undertake a serious push to including improving access to from predominantly high- assist states in switching to the new health and education, and reducing value targeting to middle-layer system. This must include increased social and ethnic marginalisation, is targeting, particularly in a way that efforts to protect human rights and crucial. simultaneously arrests as much civil liberties and reduce corruption. of a group’s middle operational Alternative livelihoods also need layer as possible. This may seem a to be integrated into overall ■■ Making the Polígonos Anti-Crime marginal technical change; in fact, it development strategies, with Socioeconomic Interventions More has profound positive implications attention paid to whether overall Rounded and Integrated regarding the ability of criminal economic growth leads to job

groups to react to interdiction hits creation or capital accumulation The logic and mechanisms of vis-à-vis law enforcement agencies while exacerbating inequality. specific polígonos projects should and toward each other, overall be articulated and clarified and limiting their capacity for violent subjected to careful evaluation and ■■ Decriminalising Drug Use, But Also reaction.33 monitoring. The projects need to Focusing on Drug Use Reduction and be better connected and integrated Prevention ■■ Keeping a Law Enforcement Focus on with one another in a particular area, Areas Where Violence Has Declined not discrete isolated programmes. Mexico should move away from Assessments of cross-boundary incarcerating users and toward The Peña Nieto administration must dynamics and interactive processes depenalising drug use and reducing not avert its eyes from areas where across polygons and between penalties for low-level dealers.36 violence has declined; instead it polygon and non-polygon areas Public health approaches to drug should work with local authorities should be built into the projects’ treatment should be emphasised, to deepen police reform and designs. It is also crucial to integrate acknowledging addiction as an institutionalise rule of law in those the projects’ designs with local law illness requiring medical treatment. areas. It also must analyse why enforcement efforts. They should adopt harm reduction violence has not exploded in other measures which produce far better parts of the country and reinforce policy outcomes, such as needle- ■■ Bringing the State and Rural the stabilisation dynamics there by exchanges, safe-injection sites, and Development to Historically- strengthening law enforcement and distribution of life-saving anti- Neglected Areas the rule of law. overdose medications. However,

casual users under community Beyond limited handouts and supervision can be effectively politically-motivated buyoffs, 34 ■■ Resurrecting A Momentum on Police dealt with through mild, short, Mexico needs to extend the state, Reform swift, and reliable penalties, such including its role in socioeconomic as demonstrated in US Project development, to the neglected In order to strengthen the Hope.37 Drug prevention measures underdeveloped areas. Alternative deterrence and response capacity – not very effective overall, but livelihoods and socioeconomic anti- of its law enforcement, the Peña nonetheless cost-effective, should crime measures need to be a part of Nieto administration also needs focus on early-age interventions and the package. But for these measures to double up on police reform, by confidence-building, including peer to be effective in reducing such enhancing capacity, beefing up pressure resistance.38 vetting and reducing corruption, undesirable economies in a lasting adopting proactive and knowledge- way, effective security needs to be based policing methods, achieving a established in the rural regions. 84 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 85

Metrics/Indicators:

To monitor the success of such strategies and in drug policies overall, the following metics and indicators are proposed:

1. Number of homicides (geographically disaggregated), changes in levels of violent crime (such as murders, assaults, armed robberies, and extortion), including the level of discrimination across these crimes (e.g. amount of innocent bystanders getting caught in the crossfire), 2. Number and intensity of violent fights among or within criminal groups following arrests of major criminals, 3. Efficiency in the level of prosecution (i.e. the percentage of arrests leading to imprisonment), 4. Public satisfaction with police- performance, including public self- identification on how likely they are to report a crime, disaggregated by prosperous versus poor areas, 5. Survey breakdown of which authority citizens would seek for dispute resolution, such as formal courts, militias or criminal groups, 6. Efficiency of police internal affairs units: reflected in convictions and/or employment contract termination of law enforcement officials, 7. Arrestee and prisoner surveys measuring their fear or respect for the justice system; including disaggregated data for the police, prosecutors, and judges, 8. Number of people living in slums and poor rural areas, and the levels of violent crime in these areas, 9. Number of people working in the informal or criminal economies, 10. Prevalence of militias, 11. Number of extrajudicial killings by security forces as well as ‘citizens militias’, 12. Effective prosecution and roll-back of militia members and units that violate government-specified terms of operation. . 86 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 87

Notes

1 Dr. Vanda Felbab-Brown is a Senior 26 July 2014, http://aristeguinoticias. of-a-gun-vigilante-militias-in-mexico. Fellow at the Brookings Institution, com/2607/mexico/los-8-estados-de- aspx ; D. Althaus, ‘Michoacán, Guerrero, co-director of Brookings project mexico-mas-peligrosos-en-2014/. and Mexico’s Mixed Responses to Improving Global Drug Policy: Vigilantes’, InSight Crime, 13 February 7 C. Sherman, ‘Mexico’s President Comparative Perspectives and UNGASS 2014, http://www.insightcrime.org/ Acknowledges Distrust, Fear’, 2016, and author of Narco Noir: news-analysis/michoacan-guerrero- Associated Press, 2 September 2015, Mexico’s Cartels, Cops, and Corruption and-mexicos-mixed-response-to- http://bigstory.ap.org/article/83091d7 (Washington, DC: The Brookings the-vigilantes ; L. Allan, ‘’Community e204745ca8e3285b6cc28fbfa/mexicos- Institution, 2016, forthcoming). Police’ Disarm Police Officers in president-acknowledges-distrust-fear. Violence-Plagued Mexican State’, HIS 2 Grupo Interdisciplinario de Expertos 8 See V. Felbab-Brown, ‘Calderón’s Global Insight, 10 May 2013 ; R. Fausset, Independientes, ‘Informe Ayotzinapa: Caldron: Lessons from Mexico’s Battle ‘Mexico’s Guerrero State Teeters on Investigación Y Primeras Conclusiones Against Organized Crime and Drug the Edge of Chaos’, Los Angeles Times, de Las Desapariciones Y Homicidios Trafficking in Tijuana, Ciudad Juárez, 16 February 2014, http://articles. de Los Normalistas de Ayotzinapa’, and Michoacán’, Latin America Initiative latimes.com/2014/feb/16/world/la-fg- 2015, http://prensagieiayotzi.wix. Paper Series (The Brookings Institution, mexico-guerrero-trouble-20140216. com/giei-ayotzinapa#!informe-/ September 2011), http://www. c1exv ; J. Tuckman, ‘Mexican Soldiers 13 Author’s interviews with government brookings.edu/~/media/research/ Ordered to Kill in Tlatlaya’, The officials, NGO members, and shop files/papers/2011/9/calderon-felbab- Guardian, 2 July 2015, http://www. keepers and street vendors, Mexico brown/09_calderon_felbab_brown. theguardian.com/world/2015/jul/03/ City, Ciudad Juárez, Guadalajara, pdf ; and V. Felbab-Brown, Narco mexican-soldiers-ordered-to-kill- Tijuana, and various towns within Noir: Mexico’s Cartels, Cops, and in-san-pedro-limon-claim-rights- Chiapas, October and November Corruption (Washington, D.C.: The activists ; C. Murray, ‘Mexico Clash 2013. For a discussion of the lack of Brookings Institution, 2016). May Have Involved “Extrajudicial rule-of-law-culture in Mexico and an Killings”: Rights Body’, Reuters, 3 9 A. Hope, ‘Plus Ça Change: excellent treatment of the interplay October 2015, http://www.reuters. Structural Continuities in Mexican between Mexico’s security and com/article/2015/10/03/us-mexico- Counternarcotics Policy’, Improving anti-crime policies and politics, see J. violence-idUSKCN0RX05L20151003. Global Drug Policy: Comparative Bailey, The Politics of Crime in Mexico: Perspectives and UNGASS 2016 Democratic Governance in a Security 3 J. Breslow, ‘A Staggering Toll of (The Brookings Institution, April Trap (Boulder: Lynne Rienner, 2014). Mexico’s Drug War’, PBS Frontline, 27 2015), http://www.brookings. July 2015, http://www.pbs.org/wgbh/ 14 See, for example, T. Taraciuk, ‘Uniform edu/~/media/Research/Files/ frontline/article/the-staggering- Impunity: Mexico’s Misuse of Papers/2015/04/global-drug-policy/ death-toll-of-mexicos-drug-war/. Military Justice to Prosecute Abuses Hope--Mexico-final.pdf?la=en. in Counternarcotics and Public 4 R. E. Vargas, ‘Alcanza a Peña En Davos El 10 For details, see V. Felbab-Brown, Security Operations’ (Human Rights Tema de La Violencia, “el Gran Reto En ‘Changing the Game or Dropping Watch, 3 April 2009), https://www. AL”’, La Jornada, 24 January 2014, http:// the Ball? Pena Nieto’s Security Policy hrw.org/sites/default/files/reports/ www.jornada.unam.mx/2014/01/24/ and Organized Crime in Mexico’, Latin mexico0409web_0.pdf ; and C. Daly, politica/003n1pol. For a criticism of the America Initiative Paper Series (The K. Heinle, and D. Shirk, ‘Armed with government data, see also A. Hope, Brookings Institution, November 2014), Impunity: Curbing Military Human ‘Menos Homicidios?’, Animal Político, http://www.brookings.edu/research/ Rights Abuses in Mexico’, Special 18 December 2013, http://www. papers/2014/11/mexico-security- Report (Trans-Border Institute, July animalpolitico.com/blogueros-plata-o- anti-crime-nieto-felbabbrown. 2012), https://justiceinmexico.org/ plomo/2013/12/18/menos-homicidios/. wp-content/uploads/2014/09/2012_ 11 Washington Office on Latin America, 5 Instituto Nacional de Estadística y ARMEDWITHIMPUNITY.pdf ; and El ‘Mexican Congress Approves Historic Geografía, ‘En 2013 Se Registraron Universal, ‘Tortura En México Baja 30% Reforms to the Military Code of Justice’, 22 Mil 732 Homicidios’, BOLETÍN DE En 2012 Y 2013: CNDH’, El Universal, 27 Washington Office on Latin America PRENSA NÚM. 301/14 (Aguascalientes, April 2014, http://archivo.eluniversal. (WOLA), 30 April 2014, http://www. AGS.: INEGI, 23 July 2014), http:// com.mx/nacion-mexico/2014/tortura- wola.org/news/mexican_congress_ seieg.iplaneg.net/seieg/doc/Boletin_ en-mexico-baja-30-en-2012-y-2013- approves_historic_reforms_to_ Homicidios_2013_1406212160.pdf cndh-1006447.html. Washington the_military_code_of_justice. ; and M. Stevenson, ‘Mexico Turns Office on Latin America, ‘Mexican to Army, Drones for Security’, The 12 For background on the militias, Congress Approves Historic Reforms Washington Times, 1 September see V. Felbab-Brown, ‘The Dubious to the Military Code of Justice’. 2014, http://www.washingtontimes. Joys of Standing Up Militias and 15 D. Agren, ‘Mexicans Outraged – But Not com/news/2014/sep/1/mexico- Building Partner Capacity: Lessons Surprised – After Crony Clears President turns-to-army-drones-for-security/. from Afghanistan and Mexico for in “White House” Scandal’, Vice News, Prosecuting Security Policy Through 6 Secretaría de Gobernación, ‘Informe 22 August 2015, https://news.vice. Proxies’ (The Brookings Institution, de Víctimas de Homicidio, Secuestro com/article/mexicans-outraged-but- July 2015), http://www.brookings. Y Extorsión 2014’ (Secretariado not-surprised-after-crony-clears- edu/research/papers/2015/07/21- Ejecutivo del Sistema Nacional de president-in-white-house-scandal. afghanistan-mexico-security-policy- Seguridad Pública, January 2015), felbabbrown ; International Crisis 16 E. Malkin and A. Ahmed, ‘Ruling http://secretariadoejecutivo.gob. Group, ‘Justice at the Barrel of a Gun: in Mexico Sets Into Motion Legal mx/docs/pdfs/victimas/Victimas%20 Vigilante Militias in Mexico’, Latin Marijuana’, New York Times, 4 publicacion%20dic%2014.pdf America Briefing No. 29, 28 May November 2015, http://www. ; and Aristegui Noticias, ‘http:// 2013, http://www.crisisgroup.org/ nytimes.com/2015/11/05/world/ aristeguinoticias.com/2607/mexico/ en/regions/latin-america-caribbean/ americas/mexico-supreme-court- los-8-Estados-de-Mexico-Mas- mexico/b029-justice-at-the-barrel- marijuana-ruling.html?_r=0 ; and Peligrosos-En-2014/’, Aristegui Noticias, 86 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 87

D. Graham, ‘Mexico Review May 24 C. Saint Louis, ‘New Challenge for 2011, http://www.brookings.edu/ Allow More Marijuana Use, Ease Police: Finding Pot in Lollipops and research/articles/2011/09/latin- Sentencing’, Reuters, 14 November Marshmallows’, New York Times, 16 america-crime-felbab-brown. 2015, http://www.reuters.com/ May 2015, http://www.nytimes. 31 Interviews with US and article/2015/11/14/us-mexico- com/2015/05/17/us/new-challenge- Mexican government officials, drugs-idUSKCN0T319C20151114. for-police-finding-pot-in-lollipops-and- Washington, DC and Mexico City, marshmallows.html ; M. A. R. Kleiman, 17 C. Pérez Correa, K Silva, and C. de Spring 2008 and Fall 2009. ‘Legal Commercial Cannabis Sales in la Rosa, ‘(Des)proporcionalidad Colorado and Washington: What Can 32 For details, see, D. Bonello, ‘Five Days of Y Delitos Contra La Salud En We Learn?’, Improving Global Drug Terror in a Mexican Town’, Los Angeles México’, No. 59 (Mexico: CIDE, Policy: Comparative Perspectives Times, 21 May 2015 ; Associated August 2012), http://www.wola. and UNGASS 2016 (The Brookings Press, ‘13 People Missing in Southern org/sites/default/files/(Des)%20 Institution, April 2015), http://www. Mexico after Vigilantes Withdrew From proporcionalidad%20MEXICO.pdf. brookings.edu/~/media/Research/Files/ Violence-Wracked City’, Associated 18 Those same arguments were the Papers/2015/04/global-drug-policy/ Press, 19 May 2015. For violence in justifications of Uruguay’s government Kleiman--Wash-and-Co-final.pdf?la=en. Guerrero, see also D. Pastrana, ‘Drug to legalise marijuana production Violence Leaves a String of Ghost 25 P. Miraglia, ‘Drug and Drug Trafficking and distribution. Without preexisting Towns in Mexico’, InterPress Service, 7 in Brazil: Trends and Policies’, Improving violent crime and with a tight February 2015, http://www.ipsnews. Global Drug Policy: Comparative government control over the new net/2015/02/drug-violence-leaves-a- Perspectives and UNGASS 2016 legal marijuana industry, its claims string-of-ghost-towns-in-mexico/. (The Brookings Institution, April are far more persuasive than the 2015), http://www.brookings. 33 See, V. Felbab-Brown, ‘How to arguments in Mexico. On Uruguay’s edu/~/media/Research/Files/ Modernize Responses to Organized legal marijuana, see, for example, Papers/2015/04/global-drug-policy/ Crime: Selective Targeting and Focused J. Walsh and G. Ramsey, ‘Uruguay’s Miraglia--Brazil-final.pdf?la=en. Deterrence Strategies versus Targeted Drug Policy: Major Innovations, Major Deterrence, Selective Targeting, Drug Challenges’, Improving Global Drug 26 Legalization is also a dynamic Trafficking and Organized Crime: Policy: Comparative Perspectives process. For how sequencing and Concepts and Practicalities’, IDPC-IISS- and UNGASS 2016 (The Brookings location influences the effects on Chatham House, Modernizing Drug Institution, April 2015), http://www. legalization on organized crime groups Law Enforcement, Report No. 2 (The brookings.edu/~/media/Research/ and their adaptation possibilities, Brookings Institution, February 2013), Files/Papers/2015/04/global-drug- see J. P. Caulkins, ‘After the Grand http://www.brookings.edu/research/ policy/Walsh--Uruguay-final.pdf?la=en. Fracture: Scenarios for the Collapse reports/2013/02/deterrence-drugs- of the International Drug Control 19 B. Kilmer et al., ‘Reducing Drug crime-felbabbrown ; M. A. R. Kleiman, Regime’, Improving Global Drug Trafficking Revenues and Violence in When Brute Force Fails: How to Have Less Policy: Comparative Perspectives Mexico: Would Legalizing Marijuana in Crime and Less Punishment (Princeton: and UNGASS 2016 (The Brookings California Help?’ (RAND Corporation, Princeton University Press, 2009) ; M. A. Institution, April 2015), http://www. 2010), http://www.rand.org/content/ R. Kleiman, ‘Surgical Strikes in the Drug brookings.edu/~/media/Research/ dam/rand/pubs/occasional_ Wars’, Foreign Affairs 90, no. 5 (October Files/Papers/2015/04/global-drug- papers/2010/RAND_OP325.pdf. 2011): 89–101 ; D. Kennedy, Don’t policy/Caulkinsfinal.pdf?la=en. Shoot: One Man, A Street Fellowship, and 20 S. Scherer, ‘Mafia Thrives on Italy’s 27 For exact figures, see, United the End of Violence in Inner-City America Legalized Gambling Addiction’, Reuters, States Department of State, (New York: Bloomsberry, 2011) ; and 11 March 2015, http://www.reuters. ‘International Narcotics Control D. Kennedy, ‘Pulling Levers: Getting com/article/2015/03/12/us-italy-mafia- Strategy Report’, March 2008, Deterrence Right’, National Institute slots-idUSKBN0M720R20150312 ; and http://www.state.gov/documents/ of Justice Journal 236 (1998): 2–8. D. Conti, ‘Want Some Mafia with Your organization/102583.pdf: 182. Pizza? How the Mob Is Taking Over 34 V. Felbab-Brown, ‘Bringing the State Rome’s Restaurants’, International 28 See, for example, R. D. Renard, Opium to the Slum: Confronting Organized Business Times, 14 February 2014, Reduction in Thailand, 1970-2000: A Crime and Urban Violence in Latin http://www.ibtimes.com/want-some- Thirty-Year Journey (Bangkok: UNDCP America’, Brookings Latin America mafia-your-pizza-how-mob-taking- Silkworm Books, 2001) ; United Initiative Paper Series (The Brookings over-romes-restaurants-1555674. Nations Office on Drugs and Crime Institution, December 2011), http:// (UNODC), ‘Opium Poppy Cultivation www.brookings.edu/~/media/ 21 Felbab-Brown, ‘Calderón’s in Southeast Asia’, December 2008, research/files/papers/2011/12/05%20 Caldron:’ pp. 31-36. https://www.unodc.org/documents/ latin%20america%20slums%20 22 See, for example, B. Kilmer, G. Midgette, crop-monitoring/East_Asia_Opium_ felbabbrown/1205_latin_america_ and C. Saloga, ‘Back in the National report_2008.pdf: 1. See also, V. slums_felbabbrown.pdf. Spotlight: An Assessment of Recent Felbab-Brown, ‘Enabling War and 35 D. Mansfield, ‘The Economic Superiority Changes in Drug Use and Drug Policies Peace: Drugs, Logs, Gems, and Wildlife of Illicit Drug Production: Myth and in the United States’, Improving Global in Thailand and Burma’ (The Brookings Reality – Opium Poppy Cultivation in Drug Policy: Comparative Perspectives Institution, December 2015). Afghanistan’ (International Conference and UNGASS 2016 (The Brookings 29 Sherman, ‘Mexico’s President on Alternative Development in Drug Institution, April 2015), http://www. Acknowledges Distrust, Fear’. Control and Cooperation, Feldafing brookings.edu/~/media/Research/Files/ (Munich), 2002) ; D. Mansfield and Papers/2015/04/global-drug-policy/ 30 V. Felbab-Brown, Shooting Up: A. Pain, ‘Alternative Livelihoods: Kilmer--United-States-final-2.pdf?la=en. Counterinsurgency and the War on Substance or Slogan?’, AREU Briefing Drugs (Washington, D.C.: The Brookings 23 See, for example, Felbab- Paper, October 2005, http://areu. Institution, 2010) ; and V. Felbab-Brown, Brown, ‘Changing the Game or org.af/Uploads/EditionPdfs/524E- ‘Human Security and Crime in Latin Dropping the Ball?,’ and Felbab- Substance%20or%20Slogan%20BP.pdf. America: The Political Capital and Brown, ‘Calderón’s Caldron.’ Political Impact of Criminal Groups and Belligerents Involved in Illicit Economies’, FIU/WHEMSAC, September 88 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 89

36 A. Stevens, ‘Applying Harm Reduction Principles to the Policing of Retail Drug Markets’, IDPC-IISS- Chatham House, Modernizing Drug Law Enforcement, Report No. 3 (IDPC, March 2013), http://www. drugsandalcohol.ie/19567/1/MDLE- report-3_Applying-harm-reduction- to-policing-of-retail-markets.pdf. 37 M. A. R. Kleiman, ‘Toward Fewer Prisoners and Less Crime’, Daedalus 139, no. 3 (2010): 121–23 ; M. A. R. Kleiman, ‘Justice Reinvestment in Community Supervision’, Criminology and Public Policy: Special Issue on Mass Incarceration 10, no. 3 (August 2011): 651–59 ; B. Kilmer et al., ‘Efficacy of Frequent Monitoring with Swift, Certain, and Modest Sanctions for Violations: Insights from South Dakota’s 24/7 Sobriety Project’, American Journal of Public Health 103 (2013): 37–43 ; B. Kilmer and K. Humphreys, ‘Losing Your “License to Drink”: The Radical South Dakota Approach to Heavy Drinkers Who Threaten Public Safety’, Brown Journal of World Affairs 20 (2013): 267–77 ; G. Midgette and B. Kilmer, ‘The Effect of Montana’s 24/7 Sobriety Program on DUI Re-Arrest: Insights from a Natural Experiment with Limited Administrative Data’, RAND Working Paper No. 1083 (Santa Monica, California: RAND Corporation, 2015), http://www.rand.org/pubs/ working_papers/WR1083.html. 38 J. Strang et al., ‘Drug Policy and the Public Good: Evidence for Effective Interventions’, The Lancet 379, no. 9810 (7 January 2012): 71–83 ; J. P. Caulkins et al., An Ounce of Prevention, a Pound of Uncertainty: The Cost-Effectiveness of School-Based Drug Prevention Programs (Santa Monica, California: RAND Corporation, 1999), http:// www.rand.org/pubs/monograph_ reports/MR923.html ; B. Kilmer and R. L. Pacula, ‘Preventing Drug Use’, in Targeting Investments in Children: Fighting Poverty When Resources Are Limited, by P. B. Levine and D. J. Zimmerman (Chicago: Chicago University Press, 2010), 181–220. 88 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 89

UNGASS 2016: The focus on ‘harm reduction’ is making us blind to reducing the broader harms of organised crime

Mark Shaw

he debate around what is generally termed ‘harm reduction’ – treating drug SUMMARY abuse as a health policy issue rather than a law enforcement one – has been a Tcentral feature of discussions around drug policy for at least the last decade. It is now gathering significant momentum as countries, most notably in Latin America and ■■ The dangers of widening the space for health policy Europe, have embraced its core tenants. Coverage of the run-up to the Special Session approaches to consumption of the United Nations General Assembly on the World Drug Problem (UNGASS) in April strategies are associated with 2016 has centred on the concept of ‘harm reduction’ and how it is interpreted. As has a return to traditional law enforcement practices further been widely noted, what is remarkable in the current discussion is the degree to which down the supply chain – perhaps the health policy aspects can be openly discussed in a way that was simply not possible as concession to ‘hard liners.’ even a few years ago. That is a feature of how rapidly the debate is now evolving. While, ■■ Evidence demonstrates that a in the medium term, this may not lead to a change in the overall drug control framework broader set of harms from the itself, it has and will continue to, stretch the boundaries of the possible within the current growth of criminal networks and violence in certain states are international drug control regime. only exacerbated by hard line One concern, however, is whether that harm reduction concept to the drugs supply criminal justice and militarised widening space for debate could come at chain in its entirety, and to organised crime approaches. a cost: by shifting the discussion of health itself, and considers the policy implications ■■ There is a need to widen the policy approaches at the front-end where of doing so. Just as in the case of the drug scope of harm reduction to the supply chain of illicit drugs in its drugs are consumed, but returning to a set use debate, this does not mean a ‘softer’ entirety, and to organised of established law enforcement practices approach on organised crime, but only that crime itself. further down the supply chain. Indeed, that a wider set of policy alternatives beyond may be part of a subtle concession to the narrow law enforcement are required if we ■■ This does not mean a ‘softer’ approach on drugs, but only that ‘hard liners’: more talk of health approaches are to succeed. a wider set of policy alternatives balanced by harder law enforcement beyond narrow law enforcement responses. While the latter may not are required if we are to succeed necessarily be wrong in its entirety, it harks in sustainably limiting the harms back to a language of the past at a time of these illicit markets (and From ‘harm reduction’ when there is an urgent need to consider the policies employed to to reducing harm tackle them). a wider set of alternatives. Evidence and ■ There is a need to make a experience has shown that a broader set of ■ Language and labelling has always been linkage between security and harms that are resulting from the growth of development issues, not in order criminal networks, including prolific violence an important feature of the drug policy to ‘securitise’ development, but in certain states, are only exacerbated by discussion, even though the terms used, in order to protect development hard line criminal justice and militarised including ‘harm reduction’ itself, may have interventions from criminal widely different meanings in different exploitation – and to deliver approaches. If the full harms of drug contexts. However, it is seldom noted that services where they are trafficking and use are to be addressed, then needed most. a broader understanding of harm reduction in the context of the current debate, and no matter which side of the aisle you are on, to ■ As political momentum focuses must be introduced. ■ talk about ‘harm reduction’ almost always around UNGASS 2016 and In short, in the space provided by the rapidly the implementation of the means discussing policy options where Sustainable Development developing discussion around development drugs are bought and used at what could Goals, there is a potentially and security, symbolised most clearly by the be called the ‘front-end’ of the market. The unprecedented opportunity to UN Agenda for Sustainable Development term has become exclusively associated with push this debate further. 2030 (ASD2030), we are missing an healthcare policy interventions. Yet, the term opportunity if a multi-dimensional harm ‘harm reduction’ or perhaps better stated framework is not also applied to the issue ‘the reduction of harm,’ is far from a unique of organised crime. This argument considers concern, and one that occurs in a wider set of the possibility of widening the scope of the public policy debates.1 90 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 91

Development and humanitarian practitioners for example often refer to the ‘do no harm’ principle, It’s not all about the money meaning that their actions should not exacerbate 2 What is remarkable any situation where they intervene. While it is not As indicated, accompanying the call to reduce ‘ often stated in that way, the arguments around in the current harm has been a renewed focus on organised discussion is the ‘harm reduction’ in the drug policy field, and the crime and its role in facilitating the drug trade. degree to which the response to the war on drugs itself, revolves around This was the conclusion of the two regional health policy aspects a similar premise: policy interventions should be Commissions on Drugs for Latin America and can be openly people centric, should aim to reduce harm, and West Africa.5 Criminal justice driven strategies discussed in a way should not create a greater set of harms in their along the supply chain – at source and in transit – that was simply implementation than are already present. have broadly failed to have the desired impact at not possible even a Despite this focus on ‘harm reduction,’ and its reducing supply or the potency of criminal groups. few years ago. That alignment with medical and health interventions Though the criminal justice approach may have is a feature of how in the drugs debate, the orientation of the current served as a mechanism to get more conservative rapidly the debate discussion has led to cutting off harm reduction forces on board in the front-end ‘harm reduction’ is now evolving. principles as soon as the upper reaches of illicit debate, the way the debate has been framed has While this may not economies are discussed: that is, essentially along largely side-stepped an important opportunity lead in the medium the supply chains which move the drugs, and in to consider a wider set of solutions to organised term to a change countering the organised criminal groups who crime and illicit trafficking. in the overall drug control these. This is regrettable, partly because Instead, now the area of experimentation comes control framework the development donor community is increasingly in trying to alter market conditions to bring down itself, it has and will broadening their capacity to address organised the prices of illicit drugs, thereby shifting the risk- continue to, stretch crime, and the ASD2030 offers new opportunities return equation for criminal groups, and reducing the boundaries here, as it recognises organised criminal networks and their profits. Reducing criminal profits, particularly of the possible markets as a cross-cutting, multidimensional threat from drug trafficking, is not a new discussion at all. within the current to the achievement of sustainable development It has become the mantra of the sophisticated law international drug objectives. Of its 169 targets, more than 13 per cent enforcement official encapsulated in the much control regime. (23 targets in total) stand at risk if criminal markets (over?)used phrase ‘follow the money.’ are not addressed.3 The 2015 OECD States of Fragility report recognised the need to move toward a more Efforts and innovations in alternative livelihoods ’ multi-dimensional understanding of what is needed and other ‘supply reduction’ strategies both in the to achieve sustainable development, redefining the Americas and in the opiate producing countries concept of the ‘fragile state’ and bringing several of Central and West Asia have failed to provide middle-income countries with disproportionately consistent returns on investment, and have high levels of crime-related violence, sub-national largely ignored the versatility and legitimacy that conflict or poor access to justice, into focus.4 The trafficking groups can gain with local populations explicit linkage between these development when they provide and control the major objectives and safety is unprecedented in terms of livelihood generator of the region. Subsequently, the objectives of the UN, and provides a mandate to the remaining parameter for policymakers appears make such concerns central to debates. to be to decriminalise the sale and use of drugs and introducing regulated legal channels, thereby In fact the failure to extend the principle of ‘harm reducing its profitability in the illicit market and reduction’ up the trafficking chain is leading to commensurately the strength of criminal groups. an unexpected anomaly; while ‘harm reduction’ principles must apply at the front-end of drug While distinguishing the profits made from drug markets, where substances are sold and used, trafficking from those in other illicit markets can be further up the chain, we need to renew our efforts complicated, given that criminal groups engage on ‘supply reduction,’ hunting down traffickers in multiple illicit activities, the trafficking of illicit and tackling organised crime. And, taking such an narcotics remains an important contributor to approach is curious coming from those who have their business. Profits from drugs remain on most long argued against the war on drugs, but now estimates, both those globally and for different with advances being made on front-end harm regions, to be the mainstay of organised crime. reduction are tone deaf to a wider set of harms. At a global level, the scale of criminal proceeds Arguably, a new set of standard terminology is from transnational organised crime is equal to needed, that can span analysis and responses approximately 1.5 % of global GDP. Of this, about across illicit drug markets from beginning to end, half relate to trafficking in drugs.6 There are some and particularly in responses to organised crime. exceptions to this, for example the smuggling of Timing is crucial too: responding to contemporary oil or illicit mining in West Africa,7 but for the most challenges of organised crime is a critical public part and at a global scale this assertion holds true. policy issue for global policy makers and is likely to remain so. 90 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 91

is still a primary priority for law enforcement. The end of organised crime? Proponents of front-end harm reduction policies suggest that one cost saving that may result from A broader point is worth making as a preface legalisation or de-penalisation may be reducing In the context to this discussion: using ‘harm reduction’ policy law enforcement attention to street level drug use ‘ of the current alternatives around drug use should be supported and by doing so save resources or at least allow debate, and no on the grounds that the evidence suggests that it them to be redistributed elsewhere. matter which is viable, genuinely reduces harm to the individuals side of the aisle There is some merit in these arguments. However, involved, and is cost effective in the longer term. you are on, to in most police bureaucracies what appears easy That is, that ‘harm reduction’ mechanisms should talk about ‘harm from an external perspective – that funds are be supported in their own right, rather than for any reduction’ almost shifted from front-end policing to sophisticated savings that they might bring for law enforcement. always means organised crime investigations – will be easier said discussing policy The discussion on profits is important however than done. Firstly, these require different styles options where when considering the impact of front-end of police capacity, resources and disciplines. So, drugs are bought decriminalisation as it is now widely advocated. yes, there may be savings, but it is questionable and used at what While claims have been made that the whether they will find their way into supporting could be called decriminalisation (or legalisation) of use will high-end or externally focused investigations. the ‘front-end’ of reduce the profits made by organised crime, the In fact, in most cases where savings accrue, they the market. The evidence suggesting that this may be the case is are likely to free up policing for greater visibility term has become decidedly mixed. Perhaps most pertinently, an and more crime prevention focused work – exclusively examination of other markets where front-end use an objective that is laudable in its own right. associated with is or has been legal suggests that organised crime Secondly, it should not be forgotten that front- healthcare policy remains active along the supply chain, and makes end harm reduction requires much more effective interventions. good money in doing so. cooperation between police and other authorities, Yet, the term notably those in the health sector, which in itself Two illustrative examples can be found comparing ‘harm reduction,’ may be costly both in terms of time and money. the smuggling of cigarettes, including counterfeit or perhaps ones, and the trafficking of a variety of products better stated harvested from endangered species such as ‘the reduction of elephant ivory or rhino horn. While the sale of rhino harm,’ is far from a unique concern, horn has not been illegal in many jurisdictions, Measuring harms along and one that the profits made by organised crime in poaching the illicit supply chain and supplying the product has nonetheless occurs in a wider been immense.8 Unless illicit commodities set of public are universally legalised, with uniform levels Nevertheless, the renewed focus on harm is policy debates. of taxation and regulation, criminal networks useful, not only because it is the best response to will still maximise the opportunity to arbitrage drug use, but because it could change our overall between markets, as the illicit cigarette industry analytical paradigm. The question is, do we simply ’ has highlighted most effectively. Even in the cases do more of what we have done – enormous where complete legalisation is possible, as seems expenditure on law enforcement, with mixed possible in the case of cannabis, commercial or at least uneven results – or do we think more opportunities generated by legal sale may provide creatively at the back-end too? criminal opportunities to launder large quantities One approach is to extend the harm reduction of illicitly produced product, much the same way analysis to illicit trafficking chains themselves, as in several regions (the Balkans and in parts of at least in terms of how we prioritise actions to Africa) as occurs with the market for smuggled respond. For a start, as stated, it would make our cigarettes. 9 All of these arguments suggest that language and approach more consistent. The we should be suspicious of claims that legalising harms at the market end of the supply chain have products at point of sale reduces organised been broadly agreed are mainly health ones, but criminal profits. what about further up the supply chain? As the variety of forms of criminal enterprises Illicit trafficking causes multiple harms around have globalised and proliferated, the focus of which a growing body of analysis has been governments globally – though in Europe most written.11 However that discussion is generally a notably – have been divided amongst competing motivation for why we should tackle organised threats. While priorities may have shifted, the crime as a whole rather than a strategy, based weight of years of policy and bureaucratic emphasis on limited resources, of how we should prioritise remains, and most police agencies, certainly in some aspects or harms in particular. This is the developed world and in many places in the however the purpose of public policy: organised developing world too, retain a strong focus on crime must be managed, and we need to begin by finding and seizing illicit narcotics.10 Whether focusing (and that means prioritising) where harm they have been successful is another debate, is considered the greatest. but the fact remains that policing drugs markets 92 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 93

An important body of literature has also This debate is not a new one, but the challenge cautioned that organised criminal activity Ending violence is now of great urgency, with the growth of may also bring, at least in the short term, mega-cities and the intersection between some significant benefits, particularly for Violence, and homicide in particular, causes drugs, criminal networks and terrorism in 19 communities who may receive few services great human and financial costs. The 2011 several of them. However, violence is not from the state. Therefore, resources from World Development Report calculated that associated with all criminal markets, and is illicit activities are essential for survival, areas exposed to prolonged violence often locally contained, amongst the most and the abrupt breaking down of criminal and conflict experienced a 20 % loss in marginalised, in major urban complexes. markets where no legitimate livelihood development performance in comparison This necessitates that we need to rethink alternatives are provided may cause critical to more stable and peaceful peers.14 Yet urban security, redoubling our efforts to harms to local communities’ economic and pervasive violence is, although not always, seek better solutions for the urban poor, 12 social development prospects. The ‘do no associated with competition around drug and a concerted effort to make a linkage harm’ principle may well apply in such cases. markets. Such violence, particularly when between security and development issues, not in order to ‘securitise’ development, Broadly, however, there is consensus that the homicide rate is extremely high, is the but in order to protect development organised crime is in fact causing significant result of street or gang violence around low- interventions from criminal exploitation and escalating levels of harm. The nature of level drug markets. Take the case of Cape – and to deliver services where they are those harms is diverse, and in places where Town, where the 2014 homicide rate is some needed the most. That in its own way is the states have relatively limited institutional 65 murders per 100,000 people. That rate, route to undercutting criminalised violence. authority and capacity, these may have which has increased exponentially over the As political momentum focuses around significant long-term consequences. last couple of years, is a direct result of gang conflicts fuelled by efforts to control local the UNGASS and the implementation Identifying the harm caused by organised drug markets. of the ASD2030, there is a potentially crime does vary by market of course. So unprecedented opportunity to push this the trafficking of illicit environmental A number of the governments in Central debate further forward. products may have particular consequences America have noted that the war on drugs for ecosystems or sustainable tourism for is just as potent and violent as any intra- example. But three broad and particularly state conflict or insurgency.15 The increasing powerful harms characterise most organised power of criminal groups in Latin America crime supply chains. These are primary has created a violent threat to children and Protecting political or significant harms, and while there are youngsters who cannot achieve a decent processes undoubtedly others, these are the most lifestyle in their home states, triggering important. They are: large scale displacement of populations both inside and outside their countries, with A second and related question is the harm ■■ The harm caused by violence significant humanitarian and protection related to illicit trafficking and its impact on associated with illicit drug markets. consequences.16 Central American cities, political processes, most pertinently illegal ■■ The harm caused by the distorting many of which have homicide rates above money entering into politics or funding impact of illicit funds on politics and 100 victims per 100,000 people, suffer from political interests. This is of increasing political processes. the problem in an extreme form. In Central concern in many developing countries where drug trafficking is prevalent. For ■■ The harm caused by long-standing America and Mexico, an estimated 30% of impunity and damage to the rule murders are directly attributed to organised example, a study in Kenya showed significant of law. crime or gang violence.17 cross-over between political and criminal interests linked to drug trafficking.20 The Regrettably, despite extensive efforts, we same applies in many countries, particularly In none of these cases will an exclusively law have surprisingly little to show for our as the emphasis on reducing the levels of enforcement or security based response be efforts to reduce street level gang related violence around political campaigning has adequate to addressing the scope of the drug violence in the cities of the developing required more insidious and covert levels of challenge – and law enforcement officials world. Efforts that have focused on the political manipulation.21 are the first to recognise this reality.13 None manifestations of violence and conflict of the responses implemented in these without assessing the role of illicit flows and Given the absence of electoral transparency, three areas should solely be based on a criminal networks as causal factors have legislation in the majority of jurisdictions law enforcement approach. And, indeed, similarly been unsuccessful. For example, is lacking – and even where the legislation to conceive of the responses too narrowly analysis of experimentation with gang exists, the capacity to oversee, regulate will mean that a focus on developing truces, including those most recently in and enforce that legislation is inadequate more comprehensive and sophisticated the Americas between 2012-14, showed – understanding the influence of key alternatives would have been lost from the that the most successful of these achieved criminal figures on political and electoral outset. These three issues are not in and of their primary objective to reduce the rate process is thus a significant challenge. themselves new, but they have not been of violent homicides in the short term, but Nevertheless, closer examination of the as directly connected to the discussion on in the medium- to long-term they were realities in several places suggests that global policy responses to organised crime challenged to achieve sustainability whilst the issue is one of considerable urgency. as is warranted by a more coherent and trafficking activities continued.18 The modus operandi of important criminal strategic approach. figures is to ensure that they have political protection to safeguard their businesses Each of the three areas is discussed briefly and ensure that they are not prosecuted. in turn.

92 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 93

That is essentially what occurred in the An end to impunity case of maritime piracy where courts in external states tried suspects from a state (Somalia) where justice infrastructure was Though the As this association and criminalisation of the weak or compromised. Although admittedly ‘ criminal justice approach state continues and strengthens, the result this did not lead to the arrest and trial of may have served a is the creation of widespread impunity for high-level people, it was a unique partnership mechanism to get more criminal acts. Impunity causes harm because between the North and South. While it conservative forces on it generally means high-level traffickers presented a range of political challenges board in the front-end ‘harm (often with political connections) operate for both sides, it was largely successful in reduction’ debate, the way unimpeded, while lower level people are bringing to trial low-level pirates, sending the debate has been framed targeted: people who are almost always from an important and widespread message has largely side-stepped excluded and marginalised communities. In about the need for respecting the rule of law. an important opportunity many contexts, those involved in protecting Over a longer period, a UN Commission has to consider a wider set of drug trafficking accumulate enormous acted to investigate high-level government solutions to organised crime influence and are untouchable. This is officials in Guatemala on organised crime and illicit trafficking. particularly the case in states where justice and corruption charges, and while the institutions have been compromised or results have arguably been mixed,27 the weakened, such as in periods of conflict or Commission has played a key recent role in a ’ post-conflict. major corruption scandal that brought down In many, although not all, such instances the government. there is little chance of justice being served. In While important, high-level targeting and Guinea-Bissau or in several Central American prosecutions are not by themselves sufficient One of the most effective ways of doing states the police, prosecutors and judges to prop up a weak justice sector and support so is to provide much needed funding are often too scared or too compromised to it in a fight against organised crime. In order to political parties, securing the political challenge the powerful. Those who engage for actions that reduce impunity to have a endorsement of those in a position to create in drug trafficking and those who protect long-lasting effect, they must be coupled and enforce the law. In many jurisdictions, them are highly unlikely to be prosecuted. with measures to increase the exposure of therefore, this has created a degree of That level of impunity causes severe damage criminals and other drivers of illicit activities complicity between criminal enterprises to states, undercutting their long-term and organised crime in general. Such 22 and politics. ability to deliver services and compromising programmes complement the high-level In such cases there is little that law key institutions. interventions to reduce impunity by making enforcement agencies can do. In one How to end impunity in such cases is and will it more difficult to achieve impunity in the prominent African country, a senior police be a key challenge for future policy making. first place. investigator informed the author that his unit So, what options are available? In future then, the question should be less was entitled to go after most cases, but it was The standard international response in such about how assistance can be delivered to clear from the messages that they received law enforcement agencies, but how a set that some people and cases were to be left cases has been to provide training and institutional support for law enforcement of institutions can be created that build a alone. The common link between these partnership between different interests and cases was people who provided funds for agencies. But such efforts are largely wasted when there is little protection for those seek to isolate corrupt or criminal elites. Could political activities and in some cases personal a regional court to try drug trafficking cases benefit.23 officials who will have to conduct high-level investigations, arrests and prosecutions. No be agreed in West Africa for example? Can The point here is that a set of policy solutions matter how willing or well trained the police we push forward more cases (such as in beyond simple support to law enforcement were in Guinea-Bissau for example, there was Guatemala) where internal and external agencies is required. These must focus on little chance of making real headway. Where partners work together in new hybrid raising the costs of blurring the distinctions arrests were made and drugs or money institutions, protected from local corrupting between crime and politics: what one recent seized, ‘high-level’ interventions quickly influences, to bring high-level traffickers, Indian delegate to a conference in Mexico ensured that the good work was undone.25 within the framework of the rule of law, to called the ‘criminalisation of politics and the book? Developing such arrangements must politicisation of crime.’24 There are no easy What is required are responses that partner be the focus of global public policy responses solutions here but we need to start with: across borders, to provide alternatives to to organised crime. compromised institutions. In many cases this ■■ A much greater focus in many is only possible when states have become countries on the issue of political so weak that international intervention is party funding, and from where it is mandated by the Security Council or at drawn. least when an intervention can no longer be ■■ Sustained support for civil society resisted by corrupt elites. Notwithstanding, and free media in countries where doing so creates important precedents and criminal funding plays a significant lessons that can be applied in future cases.26 role in shaping political choices. 94 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 95

challenges we face? If the UNGASS cannot First, reduce harm… break free of the polarised silos that have Efforts and innovations dominated the war on drugs era, then it will in alternative livelihoods be a significant opportunity missed by the ‘ and other ‘supply reduction’ In all of these three issues – impunity and multilateral system to bring forward new strategies both in the compromised institutions, criminalised approaches. Americas and in the opiate politics and violence reduction – the producing countries of ASD2030 looms large. Security and This also raises a connected set of questions Central and West Asia have development issues are closely intertwined as to whether, in the long-run, the current failed to provide consistent and the SDGs provide perhaps the most international multilateral infrastructure is returns on investment, and significant foundation for advancing the adequate for the division that we need to have largely ignored the discussion in a generation. We must seek make between dealing with drugs as a health versatility and legitimacy that to address these issues more creatively issue – and dealing with all forms of trafficking trafficking groups can gain than we have in the past and from a policy and the associated harm as a justice and with local populations when perspective that is complementary to law development issue. If that separation is taken they provide and control the enforcement – but not the same. to its logical conclusion, drug consumption major livelihood generator issues should be dealt with by the UN agency While we recognise the difference in of the region. responsible for health issues (the WHO) and approach, we must resist the call to simply justice and by implication illicit trafficking apply only harm reduction principles to drug issues, coordinated within the framework of use and not to illicit trafficking and organised ’ a development agenda, should be dealt with crime. While it is clear that combating by a separate UN entity dedicated to dealing organised crime and drug trafficking at with criminal justice aspects of cross-border high levels will still be a necessary priority, crimes, such as trafficking.28 there is a growing consensus that harm reduction-based approaches at lower levels As indicated at the beginning of the article, is a more appropriate response. But policies two recent regional Commissions that are moving forwards at different speeds, highlighted the requirement for harm with some states experimenting more than reduction measures also drew attention to others, and a variety of new experiments the need to tackle organised crime – but emerging as to how organised crime can what they suggested (albeit not in much be tackled, so it is crucial that we start detail) is more of the same. In context of identifying and learning lessons in a context the progress made on harm reduction, the in which the policy framework is visibly being fear is that we simply draw the conclusion stretched. What occurs at UNGASS 2016 that ‘we must now target organised crime; has the potential to begin a reorientation implying the same set of solutions we have of the worldwide response to illicit drugs, already tried, which is largely an exclusively including how they are trafficked. law enforcement based approach. Shifting the harms discussion further up the supply In short, the same set of public policy chain allows us to reconceptualise how questions apply both to the organised crime we define the nature of what we face – to response as they have to the demand side prioritise what we should tackle, and rethink approaches: how can we reduce the harms our approach in these areas. That is the new being caused, in order to manage the challenge for ‘harm reduction.’ 94 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 95

Moving toward a harm reduction approach a set of typologies against which to measure Measuring the Impact means seeking a more responsive and multi- the development of organised crime and its 29 of Organised Crime dimensional set of metrics, and it is clear that links to the state, the latter generally being one single indicator is unlikely to fit the bill. the most important protection network There is a need for a basket of indicators that in town.35 A key challenge of expanding the definition of will provide data across two categories, 1) the A critical element of moving toward what constitutes ‘harm’ under the framework scale of organised crime, and 2) its impact. people-centric and human security of organised crime comes from the debate Measurements of scale would analyse the focused responses will be the greater use surrounding what should be the metrics by depth and forms that organised crime has of public perceptions data. In the first which to measure a ‘successful’ response to assumed, and measurements of impact place, public perceptions of the presence of organised crime. This debate is important would look at the ways that organised organised crime is essential to supplement because the way that success is measured crime is engaging with communities, states and interpret criminal data, as there is a tends to drive the ‘toolbox’ of approaches and the natural environment, including tendency for organised crime actions to go that are employed in response to organised through violent means. It is worth noting unreported, particularly in environments crime. For example, regarding seizures as the juxtaposition between scale and impact where corruption is a concern. Surveys, such the primary metric of success has arguably as the two outputs do not necessarily rise as the International Crime Victims Survey, led to an over-emphasis on interdiction and and fall with each other. In fact, a decrease which measures crimes that affect ordinary disruption strategies, rather than genuine in the scale of organised crime can result citizens on a large scale, found that the less investigations into the networks perpetrating in a greater impact on communities. For confidence individuals had in the police the those flows. Furthermore, seizure rates (along example, in Honduras, a decrease in cocaine less likely they were to report ‘conventional’ with measuring some related crimes, such trafficking resulted in greater competition or not as serious crimes. Thus, in regions as arrests for drug offences) have proven between criminal actors and higher levels of such as Latin America and Africa – regions to be a better measure of the effectiveness violence and homicide.33 of government and law enforcement where observers are witnessing high levels agencies in interdiction activities, rather Criminal justice data does remain of organised crime – there are very low crime than providing any indication of changes important, but it must be analysed as part reporting rates.36 of a wider context allowing a more nuanced and success in curbing organised crime. Perhaps more important, however, is combination of crime data, seizure data, Moreover, such measures provide little or the value of public perceptions data in law enforcement indictments on typical no indication of the impact that criminal measuring and understanding the impact organised crimes, as well as homicides networks are having on the security and of organised crime. This is arguably the and other forms of crime. Examining a development of local communities. more challenging and complex category to combination of crimes may have value: measure, as it focuses more on the intangible With discussions around the establishment targeted assassinations or ‘hits,’ kidnappings, 30 effects of organised crime in areas such of the ASD2030 framework and subsequent disappearances, unexplained arsons, and as on increased levels of insecurity and indicators to measure progress, employing sharp changes in crime trends may be diminishing public service delivery. There ‘illicit financial flows’ (IFFs) as a proxy important indicators of organised crime are a number of sources already available measure of organised crime has been when local contexts are taken into account. 31 and systematically collected that could proposed. Ground breaking work by The extent of unsolved crime, particular contribute to such a composite public Global Financial Integrity (GFI) has created targeted killings and the murder of perceptions indicator, including the ‘Ease widespread acceptance of the use of the witnesses or criminal justice officials, shows Of-‘ and ‘Cost Of Doing Business’ surveys International Monetary Fund’s balance of the degree of power or threat (including and indexes compiled annually by the World payments and residual trade statistics as corruption) which criminal groups may Bank.37 Moreover, Gallup Analytics collects an acceptable measure of IFFs, and thus for have.34 One important measure that could 32 global data on issues such as confidence in organised crime as a whole. Yet, GFI’s work be used is that of ‘protection:’ how much leadership, confidence in the military and the focuses on the reporting of licit trade; this does it cost for criminal groups to obtain police, corruption, entrepreneurial energy by definition excludes the actual volume local or political protection to move goods or and emotions. Surveys on public perceptions of criminal activity that occurs outside the conduct their activities? There is a surprising of safety can reflect increased levels of legitimate economy. Data on activities such amount of data available on ‘protection fees’ violence and fear in communities as a result as drug trafficking, the wildlife trade or and qualitative interviews often provide an of organised crime, while surveys of local human trafficking is precisely what we would indication of these amounts. Increases in businesses can uncover extortion rates and seek to accumulate in order to formulate protection fees may signal greater difficulty reflect the impact organised crime is having an appropriate response to organised in moving goods, whereas decreasing fees on local economies. At the same time, they crime. Similarly, as with seizures, the GFI may suggest a greater diversity of ‘protectors’ may also reveal the level of dependency metric focuses on volume of IFFs, and does in the market. At the local level, the extent of and concern that illicit markets and actors not demonstrate the impact of such flows. ‘protection fees,’ for example in an extortion present for the community, which in turn Therefore, it provides little assistance to market, may provide a useful indication of can nuance the direction of international policymakers and practitioners who are the changing strength of organised crime, as investment. seeking to understand the implications well as the degree of competition between . for development responses and how to criminal groups. Using the phenomenon of prioritise their assistance. protection in conflict zones may also provide 96 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 97

Notes

1 See J. Wolff, Ethics and Public 13 In the foundational discussions around 27 International Crisis Group, ‘Learning to Policy: A Philosophical Inquiry which the Global Initiative against Walk without a Crutch: The International (London: Routledge, 2011). Transnational Organized Crime was Commission against Impunity in founded, senior law enforcement Guatemala’, Latin America Report No. 2 M. Anderson, Do No Harm: How Aid professionals from both the Global 36 (Geneva, 31 May 2011), http://www. Can Support Peace or War (Boulder, South and North recognised this. These crisisgroup.org/~/media/Files/latin- Colorado: Lynne Reiner, 1999). were subsequently reflected in the america/36%20Learning%20to%20 3 Global Initiative against Transnational organisations found documentation. Walk%20without%20a%20Crutch%20 Organized Crime, ‘Organized Crime as See www.globalinitiative.net. ---%20The%20International%20 a Cross-Cutting Threat to Sustainable Commission%20Against%20 14 World Bank, ‘World Development Report Development’ (Geneva, 2015), http:// Impunity%20in%20Guatemala.pdf. 2011’ (Washington, D.C.: World Bank, 2011). www.globalinitiative.net/download/ 28 W. Kemp and M. Shaw, From the global-initiative/Global%20Initiative%20 15 See the discussion in A. Whaites, Margins to the Mainstream: Towards -%20Organized%20Crime%20 ‘Competing for the Future: Propositions of an Integrated Multilateral Response as%20a%20Cross-Cutting%20 Power and Governance in Development’, to Organized Crime (New York, NY: Threat%20to%20Development%20 Unpublished Paper, November 2015. International Peace Institute, 2014). -%20January%202015.pdf. 16 J. Collins ed., ‘Ending the Drug Wars’ 29 Key further readings include; J. V. Dijk, 4 OECD, States of Fragility 2015: (London: LSE IDEAS, 2014), http://www. ‘Mafia markers: assessing organized crime Meeting Post-2015 Ambitions (Paris: lse.ac.uk/IDEAS/publications/reports/pdf/ and its impact upon societies’, Trends in OECD Publishing, 2015). LSE-IDEAS-DRUGS-REPORT-FINAL-WEB.pdf. Organised Crime 10, no. 4 (2007): 39-56 ; 5 West Africa Commission on Drugs: WACD, 17 UNODC, ‘Global Study on Homicide Global Initiative, Results-Based Approaches ‘Not Just in Transit: Drugs, the State and 2013’ (Vienna: United Nations, to Organised Crime and Development: Society in West Africa’ (Geneva, June 2014), 2013), https://www.unodc.org/ Input into the Post-2015 Development http://www.wacommissionondrugs.org/ documents/gsh/pdfs/2014_GLOBAL_ Agenda (Geneva: Global Initiative against wp-content/uploads/2014/11/WACD- HOMICIDE_BOOK_web.pdf. Transnational Organized Crime, 2015) ; T. Full-Report-Eng.pdf ; Organization of Reitano, ‘Organised Crime as a Threat to 18 C. M. Katz and L. M. Amaya, The Gang American States, ‘The Drug Problem in the Sustainable Development: Understanding Truce as a Form of Violence Intervention: Americas’ (Washington, D.C., 2013), http:// the evidence and reshaping responses’, in Implications for Policy and Practice www.oas.org/documents/eng/press/ V. Comolli (ed.) Transnational Organised (San Salvador: SolucionES, 2015). Introduction_and_Analytical_Report.pdf. Crime: new policy challenges (London: 19 L. Shelley, Dirty Entanglements: Corruption, Adelphi Press, forthcoming 2016) ; 6 UNODC, ‘Estimating Illicit Flows from Crime and Terrorism (Cambridge: M. Shaw, ‘”We pay, you”: Protection Drug Trafficking and Other Forms Cambridge University Press, 2014). economies, Financial Flows and Violence’, of Transnational Organized Crime’ Beyond Convergence (Washington DC: (Vienna: UNODC, October 2011). 20 P. Gastrow, Termites at Work: A Report National Defense University Press, on Transnational Organised Crime and 7 OECD, ‘Bad Trades and Global Trails: forthcoming 2016) ; Virtual Network on State Erosion in Kenya (New York, NY: Criminal Economies and Illicit Financial Indicators for Goal 16, Report of the Meeting International Peace Institute, 2011). Flows in West Africa’, forthcoming 2016. of 6-7 May 2015 (Vienna: AUCNS, 2015). 21 See the body of work by International 8 J. Rademeyer, Killing for Profit: 30 For more information, see UN, IDEA on ‘Protecting Legitimacy in Exposing the Illegal Rhino Horn Trade ‘Transforming our world: the 2030 Politics’ which includes regional studies (Cape Town: Zebra Press, 2012). Agenda for Sustainable Development’, at and country cases spanning multiple https://sustainabledevelopment.un.org/ 9 C. Edwards and C. Jeffray, ‘On Tap: continents: http://www.idea.int/conflict/ post2015/transformingourworld. Organised Crime and the Illicit protecting-legitimacy-in-politics.cfm Trade in Tobacco, Alcohol and 31 Virtual Network on Indicators for Goal 16, 22 Global Initiative against Transnational Pharmaceuticals in the UK’ (London: Report of the Meeting of 6-7 May 2015. Organized Crime, ‘New Agendas, RUSI, 2015), https://rusi.org/sites/ New Approaches: Responding to 32 D. Kar and J. Spanjers, Illicit Financial default/files/201412_whr_on_tap.pdf. Organised Crime as a Development Flows from Developing Countries: 10 This was for example stated clearly by Issue’ (Geneva, 2015). See also, Global 2003-2012 (Washington D.C.: Global a senior law enforcement official at a Initiative, ‘The Unholy Trinity: Organised Financial Integrity, 2014). recent conference on drug policy at Crime, Business and the State in 33 International Crisis Group (ICG), ‘Corridor Wilton Park, and has been repeated Southern Africa’ (Geneva, 2014). of Violence: the Guatemala- Honduras to the author in a variety of forms by 23 Personal communication, senior police Border’, Latin America Report N°52 police officers in several countries. officer from Africa, Rome, July 2013. (Brussels: International Crisis Group, 2014). 11 See, for example, Global Commission See also Felbab-Brown’s article in this 24 International IDEA, Global Conference on Drug Policy, ‘War on Drugs: report on the counterproductive effects of on Money in Politics, hosted in Mexico Report of the Global Commission high-level targeting strategies to cut the City, 3-5 September 2015: http:// on Drug Policy’, June 2011, http:// ‘head’ of drug trafficking organisations. www.moneyinpolitics.info. www.globalcommissionondrugs.org/ 34 Dijk, ‘Mafia markers’. wp-content/themes/gcdp_v1/pdf/ 25 M. Shaw, ‘Drug Trafficking in Guinea- Global_Commission_Report_English.pdf, Bissau 1998-2014: The Evolution of 35 M. Shaw, ‘”We pay, you”’. or more recently C. Martin, ‘Casualties of an Elite Protection Network’, Journal 36 Reitano, ‘Organised Crime as a Threat War: How the War on Drugs Is Harming the of Modern African Studies 53, no. to Sustainable Development’. World’s Poorest’ (London: Health Policy 3 (September 2015): 339–64. Action, February 2015), https://www. 37 World Bank, World Development unodc.org/documents/ungass2016// 26 J. Cockayne, ‘Chasing Shadows: Strategic Indicators 2014 (Washington DC: Contributions/Civil/Health_Poverty_ Responses to Transnational Organised World Bank Group, 2014). Action/War_on_Drugs_report_web.pdf. Crime in Conflict Affected Situations’, The RUSI Journal 158, no. 2 (2013): 10–24. 12 OECD, ‘Bad Trades and Global Trails’. 96 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 97

Addressing the Development Dimensions of Drug Policy1

Javier Sagredo, Rebecca Schleifer and Tenu Avafia

he relationship between drug control policy and human development is complex SUMMARY and multifaceted. Yet, policies aimed at prohibiting and punishing the cultivation, Tsale and use of certain drugs have played a disproportionate role in shaping the international approach to drug control and country responses, irrespective of countries’ ■■ Repressive and prohibitionist drug development goals. Drug control policies have been justified by the real and potential policies have frequently been harms associated with illicit drug use and markets, such as threats to safety and security, implemented irrespective of wider health problems, crime, decreased productivity, unemployment and poverty. development goals.

■■ These policies have had little However, in many countries, drug control The international drug control system effect in eradicating production policies and related enforcement activities recognises the ‘health and welfare of or problematic drug use, while focused on reducing supply and demand mankind’ as its overarching concern. producing their own harmful have had little effect in eradicating To succeed in meeting Sustainable collateral consequences, in particular exacerbating poverty, production or problematic drug use. Various Development Goals (SDGs) as well as drug impeded sustainable development UN organisations have also described control objectives, UN entities and Member and threatened the health the harmful collateral consequences of States must align drug control efforts with and human rights of the most these efforts: creating a criminal black this goal. They must commit to community marginalised people. market; fueling corruption, violence, and development and support the provision of ■■ The vast majority of poor farmers instability; threatening public health and viable and sustainable livelihoods for the grow illicit drugs to meet basic safety; generating large-scale human rights poor. They must ensure that drug control needs. Crop eradication eliminates abuses, including abusive and inhumane measures protect human rights and do their principal source of income, driving them further into poverty punishments; and discrimination and not impede access to HIV and other health and insecurity. marginalisation of people who use drugs, services. indigenous peoples, women, and youth.2 ■■ In 2014, WHO´s technical In April 2016 the UN General Assembly Evidence shows that in many parts of the guidance on HIV prevention, Special Session on drugs (UNGASS 2016) will diagnosis, treatment and care for world, law enforcement responses to drug- assess and debate the successes and failures key populations recommended related crime have created or exacerbated of international drug control policies. There decriminalising drug use to poverty, impeded sustainable development, facilitate conditions conducive to is increasing recognition of the collateral and threatened the health and human rights providing health and social services harms of current drug policies, and that new of the most marginalised people. among people who use drugs. approaches are both urgent and necessary. ■■ Drug control agencies and Drug control agencies and development The UNODC has stated that the UN drug development institutions have institutions have tended to operate in conventions do not require penalisation tended to operate in isolation and isolation from each other and in some cases of drug use or possession for personal use in some cases at cross-purposes. at cross-purposes. Drug control policies and acknowledged the role of human rights ■■ To succeed in meeting the and accompanying enforcement practices abuses against people who use drugs in Sustainable Development Goals have emphasised the role of organised fuelling HIV.4 UNODC Executive Director Yuri as well as drug control objectives, crime and corruption in impeding human Fedotov has encouraged UN Member States UN entities and Member States must commit to a sustainable development and focused on criminal justice to use the upcoming UNGASS on drugs and development approach to drugs. solutions. Otherwise, the potential impacts other high-level meetings as opportunities of drug control policies on development to discuss ways to rebalance international ■■ UNDP is uniquely positioned within the UN to leverage its outcomes have mostly been factored into drug control policy responses to focus on knowledge of the similarities and development planning at the margins and health and respect for human rights, and differences between countries at often limited to ‘alternative development’ in address stigma and discrimination that different stages of development, areas where illicit crops are grown.3 The root limits access to services by people who and to translate that into evidence- 5 based insights for effective, causes that sustain the cultivation of illicit use drugs. adaptable development solutions, crops, their trafficking and use, including responding effectively to country poverty, food insecurity, lack of land tenure and local demand. or access to markets, have not received sufficient attention. 98 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 99

Drug control policy affects many areas to treat pain and drug dependence. Drug in marginal terrain, poor soil, with limited of UNDP’s work. UNDP is committed to production and trafficking, and related irrigation, and can provide income for those providing input on the impact of drug law enforcement activities, degrade the who are land-, food-, and cash-poor.11 But control policies on sustainable human environment, contaminating water and soil, illicit drug economies do not address the development that can contribute to a and harming protected forests. structural drivers of illicit crop cultivation or more comprehensive and coherent UN promote improvements in access to food, Guided by its Strategic Plan 2014-2017, system-wide approach to these issues at housing, education and land distribution. which states that ‘the challenge is to rethink policy and programme levels. This paper In addition, cultivators may face violence at development,’ UNDP could play an important discusses UNDP’s position on addressing the the hands of state eradication campaigns role in several ways: for example, first, by development dimensions of drug policy.6 and criminal, insurgent, and non-state actors highlighting the linkages between drug involved in production and trafficking. policy, public health and sustainable human development; and second, by bringing to The vast majority of poor farmers grow illicit the discussion UNDP’s knowledge, empirical drugs to meet basic needs. Crop eradication Drug Policy and experience and capacity on human eliminates the principal source of income, Human Development development issues, thereby helping to driving them further into poverty. Evidence frame the development dimensions of suggests that destruction of coca plants as drug control policies and in turn providing well as traditional crops has affected food Each year, the UN General Assembly an evidence base for development-sensitive security, contaminated water supplies, (UNGA) reasserts that ‘countering the world drug control policy. and degraded land, forcibly displacing drug problem’ requires an ‘integrated and populations dependent on coca, as well as balanced approach’ that must be carried those who are not.12 out in full conformity with the purposes and principles of the UN Charter and ‘in particular’ The Impact of Drug Political instability, weak governance systems, fundamental human rights norms.7 Yet Control Policy on poverty, loss of livelihoods, inequality, and the control system has traditionally and Human Development social exclusion, as well as conditions of insecurity and proliferation of small arms in systematically paid less attention to human post-conflict environments, also exacerbate rights and development consequences than Evidence shows that supply and demand the vulnerability of countries, territories and to enforcement and interdiction. reduction activities have had little marginal communities used as transit routes and for meaningful effect in eradicating production Drug control policies often leave an trafficking activities.13 In Mexico, for example, or on problematic drug use.9 Further, indelible footprint on sustainable human because of underlying poverty more than increasing evidence demonstrates harmful development processes and outcomes. Yet, 25,000 children left school in 2013 to join impacts of drug control policies and law drug control agencies typically have not drug trafficking organisations, and as a result considered the human development context enforcement practices on development of their responses. Many policies have outcomes, particularly poverty and fuelled the marginalisation of people linked sustainable livelihoods; governance and the with illicit drug use or markets. As a result, rule of law; human rights; gender equality; UNODC Executive people who use drugs are often among the the environment; and on indigenous peoples ‘ Director Yuri Fedotov most marginalised and stigmatised people and traditional and religious practices. has encouraged UN in society, vulnerable to a wide array of Member States to use human rights violations. Local communities the upcoming UNGASS on drugs and other in drug-producing countries also regularly Poverty and Sustainable high-level meetings as face systematic human rights violations Livelihoods as a result of campaigns to eradicate illicit opportunities to discuss ways to rebalance crops, including environmental devastation, The cultivation of illicit drug crops is international drug attacks on indigenous cultures and damage strongly linked to poverty, and driven by 8 control policy responses to health from chemical spraying. socioeconomic, security-related, agricultural to focus on health and and environmental factors. As UNODC Whereas the SDGs are intended to guide respect for human rights, Executive Director Yuri Fedotov states, ‘Let global development efforts for the and address stigma and us not forget that behind the policies, we next fifteen years, there are potential discrimination that limits have hundreds of thousands of farmers contradictions between the proposed SDGs access to services by affected by poverty, food insecurity, lack and many current drug policies. For example, people who of land, instability who [as] a result engage the SDGs aim to end poverty and hunger, use drugs. protect the environment, and promote in illicit drug cultivation. It is our common sustainable livelihoods as well as health and responsibility to continue addressing the 10 well-being for all. But global drug policies livelihood of these people. . .’ and their collateral consequences have For many people living in conditions of ’ fuelled and escalated violence; diverted poverty and insecurity, cultivating illicit limited funds and political attention from crops is often considered to be their best public health to law enforcement; and livelihood option. Coca, opium poppy and impeded access to lifesaving harm reduction cannabis are non-perishable, high-value- interventions as well as medications essential to-weight commodities that can be grown 98 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 99

faced substantial danger of serious violence The drug conventions require governments 20 and human rights abuses.14 Impact on public health to take steps to reduce supply and demand for controlled drugs. These efforts must UNODC and the World Bank have identified be balanced with States’ obligations to multidimensional poverty, food insecurity, A UNODC report published in 2014 estimates ensure an adequate supply of narcotic and lack of land tenure, and insecurity in the face that approximately 243 million people or psychotropic drugs for medical and scientific of armed conflict as key drivers of illicit crop 5.2 percent of the world’s population, used purposes and consistent with their human production.15 As the European Union has illicit drugs in the past year. Of these, about rights obligations. The obligation to provide observed: 10 percent are classified as ‘problem drug access to essential medicines is a core users:’ i.e. people who engage in high-risk ‘[N]o single project or program component of the right to health.27 can address the multiple factors consumption of drugs, such as injecting drug that drive illicit drug production use, and people who are drug-dependent. Several drugs subject to control under the . . . Evidence points to the fact that Worldwide, an estimated 12.7 million people international drug control conventions it is a combination of improved inject drugs.21 are also on the WHO ‘Model List of governance, security and economic Essential Medicines,’ including morphine Some of the most severe drug-related harms growth that will deliver the for pain treatment, and methadone and are associated with injection drug use. development impact required to buprenorphine for OST.28 Yet, only a fraction Outside of sub-Saharan Africa, up to 30% of improve the life and livelihood of of people who inject drugs have access all new HIV infections occur among people primary stakeholders and reduce to OST.29 Three quarters of the world’s illicit drug [crop] cultivation. . . . who inject drugs. Unsafe injecting practices population has no or insufficient access [D]evelopment assistance in illicit put people who inject drugs at high risk to treatment for moderate to severe pain, crop producing areas should be of blood-borne infections such as HIV and and each year tens of millions of people undertaken in full compliance with viral hepatitis, in particular hepatitis B and suffer untreated moderate to severe pain. the overall aims of human rights hepatitis C.22 protection, poverty alleviation, Unnecessarily restrictive drug control conflict prevention and resolution, A substantial body of evidence shows regulations and practices are a significant peace building and human security.’16 the effectiveness of harm reduction barrier to access to effective pain treatment.30 interventions in preventing HIV and viral ‘Alternative development’ programmes have hepatitis, and preventing and reversing been promoted as a way to wean farmers overdose – thereby saving lives and from drug crop production to legal crops or significant amounts of often scarce monetary other non-agricultural activities. However, resources.23 In light of this evidence, UNODC, Impact on the these programmes have traditionally WHO, and UNAIDS all recommend that a formal economy produced questionable demonstrable comprehensive package of harm reduction efficacy in terms of supply reduction or services be integrated into national AIDS development outcomes.17 The European programmes, both as a HIV prevention Current drug control efforts have fuelled Union, the Organization of American States measure and to support adherence to the creation of a huge criminal black market (OAS) and UNODC have all argued that efforts antiretroviral therapy and medical follow-up with an estimated turnover of more than to address illicit drug cultivation should for people who use drugs.24 $332 billion annually.31 Illicit drug markets be mainstreamed into national poverty are robust due to their high value, driven by reduction strategies, conflict prevention However, evidence shows that criminal a sustained demand. While the illegal drug efforts and development programmes.18 laws and related enforcement policies market may generate economic growth, and practice have impeded access to Successful development depends on many economic inclusion and employment, these lifesaving health services in many factors including: thus improving the lives of some who are countries. These include laws and policies involved, it also poses a threat to long-term ■■ long-term investments by that criminalise possession or distribution of development objectives and outcomes.32 governments and international sterile syringes and other drug paraphernalia, Illegal businesses, often associated with donors; Opioid-Substitution-Therapy (OST), and money laundering schemes, affect formal ■■ integration of sustainable livelihood peer outreach to people who use drugs; economies in many ways including the strategies in local, regional, and government registration of people who distortion of markets, exacerbating income national development plans; use drugs on registries accessible to police; inequality, undermining the rule of law and and abusive policing practices. This has put ■■ coordination of drug control and fuelling corruption. development experts and agencies; people who use drugs at increased risk of HIV, viral hepatitis, and premature death Drug markets can also undermine ■■ existence of sound monitoring and from overdose.25 economic development by eroding social evaluation mechanisms; cohesion, degrading quality of life and In 2014, WHO´s technical guidance on ■■ local ownership; forcing skilled workers to leave, while HIV prevention, diagnosis, treatment and the direct impacts of victimisation, as ■■ development markets and care for key populations recommended well as fear of crime, may impede the infrastructure for crops or products decriminalising drug use because that development of those that remain. Violence that replace them; measure would serve as a ‘critical enabler’ and insecurity associated with illicit drug ■■ meaningful involvement of farmers to create conditions conducive to providing markets also drive up the costs of legitimate as citizens with rights and partners in health and social services, and preventing 19 trade and commercial activities, and in turn development. HIV, among people who use drugs.26 discourage investment in affected regions.33 100 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 101

Impact on governance, Human rights implications of drug conflict and the rule of law policy A substantial body ‘of evidence shows ‘Placing human rights at the centre of the effectiveness Illicit drug markets undermine democracy and drug control, crime prevention and of harm reduction confidence in the criminal justice system. Weak criminal justice provides an organizing interventions in state institutions, absence of basic infrastructure set of principles that dissolves boundaries preventing HIV and and lack of economic opportunities create between the fields and promotes a single viral hepatitis, and enabling conditions for the drug trade to flourish. coherent response. Effective drug control cannot exist without fair criminal justice preventing and Criminal drug organisations operate and expand and successful crime prevention.. ...Such reversing overdose their business by paying off private individuals – thereby saving an approach represents more than and police, judiciary and political officials at all “added value”; it is a legal obligation.’38 lives and significant levels. Organised crime has the potential to usurp -Antonio Maria Costa, Executive Director, amounts of often the rule of law where the state is not present. The UNODC (2010) scarce monetary more the state is permeated with the influence of resources. In light the drug trade, the more difficult transparency and In many countries around the world, drug control of this evidence, accountability becomes. At the same time, the more efforts result in serious human rights abuses: torture UNODC, WHO, public institutions and procedures are weakened, and ill treatment by police, mass incarceration, and UNAIDS all the more they are susceptible to being permeated extrajudicial killings, arbitrary detention, denial of recommend that by the illegal drug economy, in some contexts on essential medicines and basic health services. Local a comprehensive a massive scale. The illicit drug trade can also affect communities in drug-producing countries regularly package of harm income inequality which may then disturb power face violations of their human rights as a result reduction services structures within communities, erode traditional of campaigns to eradicate illicit crops, including be integrated into social structures, and encourage more people to environmental damage, attacks on indigenous national AIDS enter the illicit drug industry.34 cultures, and displacement and damage to health programmes, both from chemical spraying. Communities also face as a HIV prevention UNDP has recognised that in Latin America for serious human rights abuses by large-scale drug measure and to example, policies focusing predominantly on trafficking organisations including massacres, support adherence repression, increased penalties and use of force have killings, forced displacement, sexual and physical to antiretroviral increased lethal violence and police abuse, fuelled violence and extortion.39 therapy and medical belligerent responses from criminal organisations and provoked their fracture and geographic More than 235,000 people are arbitrarily detained, follow-up for people often without their consent and or any form who use drugs. dispersion. Successful interdiction efforts, arrest or extradition of drug cartel leaders and destruction of of due process, in over 1000 compulsory drug drug cartels, have led to increased levels of violence, detention centres in East and South East Asia, 41 ’ as the remaining players compete to control under the guise of ‘treatment’ or ‘rehabilitation.’ market share.35 UN guidance recognises that drug dependence is a chronic, relapsing condition and that several Enforcement pressure on one production episodes or types of treatment may be required to area or transit route displaces production or overcome it.42 Yet in some countries, ‘drug courts’ trafficking routes, and related crime, violence have obliged many people with drug dependence and destabilisation, to new geographic areas to follow abstinence-based treatment and and communities. Transit countries often also subjected them to additional penal measures if they experience an increase in drug consumption, which fail ‘treatment.’43 in turn can lead to an increased burden on the health system.36 The death penalty for drug-related crimes is a violation of international law. Yet 33 countries retain The excessive use of criminal justice mechanisms, this penalty and up to 1,000 people are executed the disproportionality of incarceration penalties annually for drug offenses.44 Drug enforcement for drug-related offences and the enforcement efforts have led to extrajudicial killings by police of mandatory sentencing laws have contributed and military. Some 2,800 people were extra- to overloading the judicial and prison systems, judicially executed in the first three months of undermining their capacity to deliver justice and Thailand’s 2003 ‘war on drugs’ campaign, at least support rehabilitation. The lack of alternatives to half of whom had no connection whatsoever to incarceration and re-entry mechanisms and the drugs. According to a 2007 investigation, of 2,819 excessive use of pretrial detention have contributed people killed between February and April 2003, to serious prison overcrowding, facilitating human more than 1,400 were unrelated to drug dealing rights abuses, as well as connections to organised or had no apparent reason for their killings.45 crime networks within prison.37 Targeted killings of drug traffickers have also been justified as a military intervention, in violation

of international humanitarian as well as human

rights law. 46

100 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 101

Impact of drug control policies Impact of drug control Meanwhile on the environment policies on indigenous eradication people, traditional, and ‘ campaigns have The 1988 Convention Against Illicit Traffic in religious practices Narcotic Drugs requires state parties to ‘take widely been shown as ineffective, appropriate measures to prevent illicit cultivation The criminalisation of indigenous, traditional leading Richard of and to eradicate plants containing narcotic or practices done without consultation with Holbrooke, US psychotropic substances.’ These measures must indigenous communities raises a number of human Special Envoy ‘respect fundamental human rights and shall take rights and development concerns. The ban on to Afghanistan due account of traditional licit uses, where there is traditional uses of coca, opium and cannabis in the and Pakistan, to historic evidence of such use, as well as protection 1961 Convention was passed at a time when scant 47 comment in 2009, of the environment.’ attention was given to cultural and indigenous ‘Spraying the crops rights and before the adoption of key international In practice, however, eradication campaigns have just penalises the instruments and relevant jurisprudence protecting had devastating consequences for the environment. farmer and they the right of all indigenous peoples to free and prior Drug cultivation, production and related trafficking grow the crops informed consent relating to issues that affect them, and enforcement activities can also cause serious somewhere else ... and to maintain traditional, religious and medical harm to the environment including: deforestation, This is the practices, and to own, develop, control and use of soil erosion and degradation, loss of endemic least effective their real property and resources.51 Criminalisation species, contamination of soil, groundwater, and program ever.’ waterways and the release of climate change of drugs used for traditional and religious purposes fuelling gases including methane, carbon dioxide, likewise contradicts human rights protections for carbon monoxide and nitrogen oxides, to name the traditional and religious uses of controlled 52 ’ a few.48 drugs. Meanwhile eradication campaigns have widely been shown as ineffective, leading Richard Holbrooke, US Special Envoy to Afghanistan and Pakistan, to comment in 2009, ‘Spraying the crops UNDP SUPPORT FOR SUSTAINABLE just penalises the farmer and they grow the crops DEVELOPMENT APPROACHES somewhere else ... This is the least effective program TO DRUG POLICY ever.’49 Glyphosate, a herbicide used in aerial

fumigation of illicit coca crops, has been associated UNDP’s mandate provides it with a unique with serious harm to physical and mental health, opportunity to support countries in adopting food security, family income and the environment. evidence-based and development-sensitive The International Agency for Research on Cancer, a drug policies that address the harms caused by specialised agency of the WHO, recently reclassified illicit drug production, trafficking and abuse, as glyphosate as a probable carcinogen.50 well as the harm caused by drug control efforts.

Figure 1. Sample of countries with mandatory death penalty for drug offences40

Country Number of Number of % of death sentences/ death sentences/ death sentences/ executions for drug executions in executions for offenses 2011 drug- related offenses in 2011 Islamic Republic 676 540 80% of Iran Kuwait 17 3 18% Malaysia 108 83 77% Singapore 4 2 50% United Arab Emirates 31 7 23% Vietnam 69 27 39% Yemen 29 10 34% 102 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 103

However, this requires, among other things, effective governance has strong potential progress toward democratic governance focusing not only on illicit cultivation and for helping drug policy frameworks bring and comprehensive HIV and health use but also on their root causes: poverty, greater development benefits to citizens responses that include harm reduction can social exclusion, inequality, government and increased confidence and trust in public all mitigate the negative impacts of drug instability and weak of rule of law. Figure institutions, both at national and, most production, drug trafficking and problematic 2 provides a snapshot of how drug policy intensively, at sub-national level. UNDP’s drug use. intersects with various aspects of UNDP’s work in reinforcing the rule of law and citizen Averting major development setbacks work as articulated in the 2014-2017 security should promote greater respect and promoting human security in areas Strategic Plan. for citizen rights, facilitate stronger civilian and communities strongly affected by oversight, help to counter drug-related violence and other threats caused by illicit discrimination and allow for faster progress drug production and trafficking or by in reducing drug-related gender-based the negative consequences of repressive Development-sensitive violence. Moreover, UNDP’s promotion of drug policies, is another aspect of people- Programming in Support of UN civil, political, economic, cultural and social centred human development. UNDP has Member States rights should help reduce discrimination experience and capacity to induce effective and violence experienced by women, youth, recovery from conflict-induced crises in Many aspects of UNDP’s policy work and indigenous people and other minorities with those cases where prevention has fallen programme delivery in countries could linkages to drug use or drug markets. support initiatives already being undertaken short, through early economic recovery by UN Member States to implement UNDP could build on its experience working and focus on employment and livelihoods development-sensitive drug control policies. with Member States to review and shape stabilisation and creation, reintegration of laws and legal practices to create legal and displaced persons and restoration of basic human rights environments supportive of infrastructure at local level. Additionally, Sustainable Development effective responses to HIV for people who use peaceful resolution of disputes and Pathways drugs and other marginalised populations. mediation in order to stabilise volatile This work could provide a model for conditions could be of great help in areas A substantial body of evidence has shown meaningful engagement with civil society with drug market related conflicts. In these that drug policies anchored in economic and and in particular with those most affected by contexts, interventions on illegal economies social development plans are more likely to drug-related problems to address drug laws, must be centred on the protection of citizens result in positive development outcomes. policies and practices that affect their lives and the reduction of risks, harms and 53 An important opportunity exists for UNDP and the communities in which they live. negative impacts. to support Member States’ programmes to UNDP could support longer-term efforts tackle poverty, inequality and exclusion in a to strengthen democratic governance way that empowers vulnerable populations wherever it has been challenged by illicit who depend on illicit drug economies or actors of drug-markets. For example, on UNDP has those who experience exclusion because of issues like legislative oversight, transparency recognised that problematic drug use. of public accounts, improvements in public ‘in Latin America for example, administration, reinforcement of local governments to deliver basic services and policies focusing

working with the non-governmental and predominantly on Inclusive and Effective private sectors. Furthermore, complementary repression, increased Democratic Governance support can be given to address justice and penalties, and use of security sector institutions focusing on force have increased UNDP’s work assisting countries to maintain rapid restoration of access to justice and lethal violence or secure peaceful and democratic the rule of law, transitional justice measures, and police abuse, governance, helping institutions to adapt longer-term recovery of justice and security fuelled belligerent to changing public expectations and deliver sector institutions and the implementation responses from clear benefits to citizens, whether in terms of of preventive strategies to confront drug- criminal organisations, better services, improved access to resources related crime and violence, including and provoked needed for employment and livelihoods gender-based violence. their fracture or greater security, could also provide an and geographic important pathway into the development of dispersion. Successful evidence informed drug policies anchored in Resilience Building interdiction efforts, human rights principles. Promoting a culture arrest or extradition of accountability, inclusive governance and All areas of work proposed in UNDP’s 2014- of drug cartel leaders, participation reduces space for corruption 2017 Strategic Plan can help build resilience and destruction of and infiltration of organised crime within to reduce the harmful impact of drug-related drug cartels have led government institutions. problems. Initiatives that result in higher to increased levels UNDP’s experience in the design and levels of employment, more equitable of violence, as the implementation of evidence-based, access to resources, better protection remaining players sustainable human development-oriented against economic and environmental compete to control public policy and in the construction of more shocks, peaceful settlement of disputes, market share. ’ 102 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 103

Figure 2. How drug policy intersects with various aspects of UNDP’s work as articulated in the 2014-2017 Strategic Plan

UNDP Strategic Plan Examples of drug policy related issues that negatively Outcomes affect achievement of UNDP’s Strategic Plan OutcoMES

1 Growth and development 1. Inhibition of legitimate social and economic activity and lack of formal and legal economic alternatives for the are inclusive and poor, youth, women, indigenous populations and other excluded groups, because of illegal market dynamics. sustainable, incorporating 2. Forced eradication campaigns precede development of alternative livelihood options, undermining food productive capacities that security and exacerbating poverty. create employment and livelihoods for the poor and 3. Greater exposure to risks in poverty environments due to a mix of social determinants such as higher availability excluded of drugs and arms, higher urbanisation levels, higher crime rates, presence of trafficking organisations, repressive law enforcement strategies and presence of violence.

2 Citizen expectations 4. Excessive use of criminal justice mechanisms, the disproportionality of penalties for drug offenses, including for voice, development, death penalty and long-term incarceration, abuse of pretrial detention and the enforcement of mandatory the rule of law and sentencing laws contribute to overload the judicial and prison systems, making them even more inefficient and accountability are met undermining people’s confidence in them. by stronger systems of 5. Impunity for human right abuses and major crimes due to corruption of and major threats to justice system democratic governance officials and other decision makers and administrative authorities. 6. Erosion of democratic governance, rule of law and people’s adherence to social norms and institutions by illegal actors or by means of the ‘normalisation’ of illegal activities, political and economic influence or lack of protection from law enforcement and justice.

3 Countries have 7. Laws criminalising drug use/possession of small amounts of drugs for personal use, discrimination and lack of strengthened institutions investment in health and social welfare, impede people who use drugs’ access to basic services such as housing, to progressively deliver education, healthcare, employment, social protection and treatment. universal access to basic 8. Lack of social (re)integration processes along with significant percentages of relapses and readmissions limit the services chances of addressing drug dependence and substantially reduce the efficiency of investments in treatment and recovery systems. 9. Absence of comprehensive harm reduction and effective prevention, treatment and care services and policies for people who use drugs contributes to increased prevalence of HIV and other infectious diseases.

4 Faster progress is achieved 10. Involvement of women in drug trading due to economic and gender-inequality, such as single mothers needing in reducing gender a means by which to support their family. inequality and promoting 11. Disproportionate incarceration of women for their participation in the lowest levels of drug production or women’s empowerment trafficking. Women feel consequences of criminal punishment differently, often with greater impact on their children and families. Lack of drug-related services for women who use drugs in prison or pretrial detention. 12. Higher prevalence of gender-based violence affecting women who use drugs, with double vulnerability and stigma and the lack of specialised services.

5 Countries are able to reduce 13. Weak states create environments conducive to illicit activity, thereby allowing armed groups to use illicit drug the likelihood of conflict, economies to finance their activities thus threatening citizen security and fuelling conflict. and lower the risk of natural 14. Implementation of repressive drug control policy causes loss of livelihoods, displacement, migration and disasters, including from criminalisation of rural communities, fuelling conflict. climate change 15. Deforestation, land degradation, loss of endemic species and pollution of aquifers from illegal production of drugs or the fumigation, eradication and destruction of drug laboratories.

6 Early recovery and rapid 16. Violent conflicts cause considerable damage to infrastructure, destroy livestock and farming land, result in return to sustainable the mass displacement of populations, lead to social instability, loss of household members, human rights development pathways are violations, and undermine human development. Participation in the illicit drugs economy becomes a viable achieved in post-conflict source of income. and post-disaster settings 17. Loss of income, unemployment and food insecurity resulting from supply control programmes may lead to frustration, antipathy toward authorities, and social instability. Experiencing hardship and with no other options on hand, households often resume cultivation of drug crops and farmers disperse fields more widely or move to more remote locations. 18. Economic turbulence, along with poverty and social inequality, can also exacerbate existing obstacles in access to health, education and social services.

7 Development debates 19. Pre-eminence of prohibition and abstinence-based policies fuel exclusion and do not allow for debate on the and actions at all levels effects of drugs and drug policy on poor and excluded populations. prioritise poverty, inequality 20. High sensitivity of drug issues along electoral processes, generating political problems for the promotion and and exclusion, consistent approval of alternative policies and interventions. with UNDP’s engagement 21. Metrics and indicators for drug policy success are based in the specific and narrow traditional objectives of drug principles demand and supply reduction without any other consideration of its impact on human rights, social inclusion or on any other elements of sustainable human development. 104 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 105

The potential Drug policy and the post-2015 agenda ‘impacts of drug control policies on development Topics and principles at the core of the post-2015 agenda that should also be considered in relation to drug outcomes have policy include: mostly been 1. Poverty eradication, sustainable consumption and production, and protecting the natural factored into resource base of economic and social development. development planning at the 2. People centred approaches: just, equitable and inclusive, with inclusive economic growth, social margins and development and environmental protection. often limited 3. Freedom, peace and security, the rule of law, good governance, gender equality, women’s to ‘alternative empowerment and commitment to just and democratic societies for development. development’ in areas where illicit 4. Respect for the Universal Declaration of Human Rights. crops are grown. 5. Importance of international cooperation and of common but differentiated responsibilities. The root causes that sustain the 6. Need for different approaches depending on national or local circumstances and priorities. cultivation of 7. Need for additional resources for sustainable development. illicit crops, their trafficking and use, 8. Improvement of the quality, coverage and availability of disaggregated data to ensure that no one including poverty, is left behind. food insecurity, lack of land tenure or access to markets, have not received sufficient attention.’

Figure 3. A snapshot of how UN Member States, with support from UNDP, could promote development- sensitive policies and programmes on drug policy and control.

Resilience building Inclusive and Effective Sustainable Development Democratic Governance Pathways

Address mass incarceration and Address abuses that interfere Support the provision of viable disproportionate sentencing, with access to comprehensive and sustainable livelihoods by for instance, increasing harm reduction services, for small farmer-producers access to legal services and including laws criminalising of illegal drug crops and alternatives to incarceration drug use and possession ensure that alternative of small amounts of drugs development programmes for personal use and drug are non- discriminatory and paraphernalia laws based on economically realistic alternatives

Focus on reducing the power of Address legal, regulatory and Advocate that illicit crop criminal organisations as well as policy barriers to access to eradication not be undertaken the violence and insecurity that narcotic drugs for pain relief until small-farmer households result from their competition (e.g., morphine) and drug have been supported to with both one another and the treatment (e.g., methadone adopt viable and sustainable state and buprenorphine for opioid livelihoods dependence)

Promote the meaningful Encourage countries to take Support local development, participation of communities advantage of room within while considering interactions including people who use drugs the drug conventions on with factors such as human and indigenous communities penalisation of possession and security, governance, violence, affected by drug control use of controlled substances, human rights, development and policies in the development and including decriminalisation of food security implementation of policies that drug use and possession of affect them small amounts of drugs for personal use 104 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 105

There are contradictions between the targets UNDP’s greater involvement in drug policy established in the SDGs and the drug policies discussions could also spur constructive engagement emanating from the three drug conventions. The SDGs of other UN agencies and entities, while deepening In 2014, WHO´s aim to promote sustainable development, including strategic thinking and responses by the UN system, ‘ technical guidance health and well-being for all. But as described developing consistency in results formulation on HIV prevention, above, global drug policies and their ‘unintended and monitoring, forging closer links between diagnosis, treatment consequences’ have fuelled and escalated violence; programmes and agencies and strengthening and care for key diverted limited funds and political attention from links with non-UN partners. UNDP’s focus on populations public health to law enforcement; and impeded country-level coordination and on delivery and recommended access to lifesaving harm reduction interventions development results could strengthen UN Country decriminalising as well as medications essential to treat pain and Team capacity to support Member State’s priorities, drug use because drug dependence. Several SDGs aim to end poverty providing assistance through its technical work and that measure and hunger, protect the environment, and promote expertise on cross-sectoral issues, and drawing on would serve as a sustainable livelihoods, but drug production and non-resident agencies with relevant knowledge ‘critical enabler’ to trafficking, and related law enforcement activities, and skills. create conditions degrade the environment, contaminating water Additionally, UNDP’s coordination with the conducive to and soil and harming protected forests. A number UN Secretariat could contribute to enhancing providing health of SDGs aim to promote human rights by combating the achievement of development results, and social services, discrimination, promoting gender equality and as it relates to development-sensitive drug policy and preventing HIV, strengthening access to justice and government and programming. UNDP’s strong engagement among people who accountability at all levels. However, the illicit drug with key UN system actors like the Department of use drugs. trade, and efforts to control it, have devastating Economic and Social Affairs (ECOSOC), the Office for impacts on indigenous people and on women and the Coordination of Humanitarian Affairs (OCHA), the girls, have undermined democratic governance and Department of Peacekeeping Operations (DPKO) and ’ the rule of law, and threatened the human rights of the Department of Political Affairs (DPA) can support people who live in communities where drugs are UN system coherence in this and other development produced, through which they are trafficked, and issues. where they are sold. These contradictions need to be clearly presented and debated in the process UNDP’s commitment to South-South and of defining the new global agenda for sustainable Triangular cooperation, capacity building development and, more intensely, during the and facilitation of lessons learned exchanges, evaluation of the international drug control system are important assets that could be mobilised toward and its implementation at UNGASS 2016. supporting development-sensitive drug control policy, as for other sustainable human development The post-2015 development agenda provides an issues. UNDP could help across a range of settings to opportunity to establish different measures of disseminate knowledge on what has worked in the success for drug policy, with a clear articulation of development context and what has not, work with metrics related to the impact of drug policies on partners to support the harmonisation of policies peace, development and human rights. and regulations that allow for better exchanges, mobilise strategic funding and technical cooperation and connect relevant actors to develop effective Conclusion development solutions, while benefiting from its wide network of development partners. Finally, UNDP’s additional assets include its capacity UNDP’s sustainable human development mandate to support multi-sectoral approaches to complex affords it the opportunity to develop unique development challenges, its ability to influence policy approaches and solutions, including as it relates to and its mobilisation capacity to tackle important the intersection of drug policy and development. issues or specific crises and its long-standing role UNDP is uniquely positioned within the UN system to as a trusted partner working across sectors and leverage its extensive knowledge of the similarities with multiple stakeholders, even on sensitive issues. and differences between countries at different stages Adding UNDP’s engagement to multilateral support of development, and to translate that into evidence- to governments addressing drug-related challenges based insights for effective, adaptable development would almost certainly make a difference in ensuring solutions, responding effectively to country and local drug policy and control are more fully coherent with demand. The almost universal reach of UNDP, its development policies and goals. ‘lead in development thinking,’ its operational focus and its relationships of trust with national partners, are strong assets to address complexity, to deliver development results and to become a force for development-sensitive reform. 106 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 107

New Metrics to Evaluate Drug Control Policies Possible metrics to consider include:

Success in drug control efforts has mainly been measured by supply 1. Goals that address root causes that contribute to and demand reduction: hectares of illicit crops eradicated, volumes supply and demand for drugs including poverty, of drugs seized and numbers of people arrested, convicted and food insecurity, lack of access to markets, health incarcerated for drug law violations. These are process measures that and education, lack of land tenure, lack of security, reflect the scale of enforcement efforts but tell us very little about the presence of armed conflict; impact of drug use or policies on people’s lives. Measuring success by 2. Targets that address progress toward ensuring the arrests and seizures creates perverse incentives for law enforcement, ‘health and welfare of mankind,’ including a decrease and may encourage law enforcement to engage in violence or other in the number of overdose deaths and infection rates abuse to achieve these goals. It also encourages police to seek out for HIV, hepatitis B and C and other communicable small offenders, such as people who use drugs or commit minor diseases among people who use drugs; an increase drug-related offenses, as they are easy targets for arrest. in access to harm reduction, treatment demand and treatment access; an increase in investments in health and social welfare benefits, and in the number Metrics and indicators for drug policy success are based in the of people receiving such assistance; a reduction in specific and narrow traditional objectives of drug demand and excessive and disproportionate punishments; supply reduction without any other consideration of its impact on 3. Indicators that measure access to health care human rights, social inclusion or on any other elements of sustainable information and services in consultation with and human development. participation of affected communities; harms to individuals and communities, such as the number of The development of a comprehensive set of metrics to measure victims of drug-related violence; levels of social and the full spectrum of drug-related health issues, as well as the economic development in communities where drug broader impact of drug control policies on human rights, security production, consumption, or sale is concentrated; and development would be an important contribution. UNDP’s and underlying conditions of poverty, inequality, experience with Human Development indices, its mandate and insecurity that sustain cultivation of drug crops to promote human development and its role within the UN and exacerbate vulnerability to trafficking and system make it well suited to play a role in the development of organised crime. such metrics. . 106 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 107

Notes

1 ‘Editor’s note: This contribution has ‘World Development Report’, 2011, 18 European Union, The EU Approach on been shortened from its original http://web.worldbank.org/WBSITE/ Alternative Development, CORDROGUE version: R. Schleifer, J. Sagredo, T. EXTERNAL/EXTDEC/EXTRESEARCH/ 44, 2006, http://register.consilium. Avafia, ‘Addressing the Development EXTWDRS/0,,contentMDK:23256432 europa.eu/doc/srv?l=EN&f=ST%20 Dimensions of Drug Policy’ (New pagePK:478093 piPK:477627 9597%202006%20INIT. York: United Nations Development theSitePK:477624,00.html ; UNODC, Programme, June 2015), http://www. ‘UNODC and the Promotion and 19 C. A. Youngers and J. M. Walsh, undp.org/content/dam/undp/library/ Protection of Human Rights: Position ‘Development First: A More Humane HIV-AIDS/Discussion-Paper--Addressing- Paper’, 2012, http://www.unodc.org/ and Promising Approach to Reducing the-Development-Dimensions-of- documents/justice-and-prison-reform/ Cultivation of Crops for Illicit Market’, Drug-Policy.pdf. This article should thus UNODC_Human_rights_position_ 2009, http://www.wola.org/sites/ be seen as a summary of the official paper_2012.pdf. default/files/downloadable/Drug%20 UNDP discussion paper on drug policy. Policy/2010/WOLA_RPT_Development_ Where specific sections of the original 9 See Peter Reuter, Harold Pollack and web_FNL.pdf ; Commission on Narcotic document have been dealt with in Bryce Pardo’s contribution to this report. Drugs, ‘Outreach to New Stakeholders greater depth by other contributions in in the Field of Alternative Development: this report, parsimony has mandated 10 Y. Fedotov, ‘Opening of the side-event 57th Session’, UNODC-GIZ Expert Group they be heavily shortened or removed. “Outreach to new Stakeholders in the Meeting (Berlin, Germany, 2014), from Their absence should not be viewed as Field of Alternative Development”’, 57th http://www.unodc.org/documents/ oversight of the authors. Commission on Narcotic Drugs, 2014. commissions/CND/CND_Sessions/ CND_57/E-CN7-2014-CRP07_ 2 See other contributions to this report. 11 D. Mansfield and A. Pain, Alternative V1401225_E.pdf. Livelihoods: Substance or Slogan? Afghan 3 See David Mansfield’s contribution to Research and Evaluation Unit Briefing 20 See Joanne Csete’s contribution to this this report. Paper, 2005, http://ageconsearch.umn. report. edu/ bit stream/14650/1/bp05ma01.pdf 4 UNODC, ‘Drug Policy Provisions 21 Injecting drug use has been reported from the International Drug Control 12 Rincón-Ruiz and G. Kallis, ‘Caught in the in 158 states and territories throughout Convention’, 2014, http://www.unodc. Middle, Colombia´s War on Drugs and Its the world, with the majority of injectors org/documents/hlr/Drug_policy_ Effects on Forest and People’, Geoforum, living in China, the US, and Russia. See provisions_from_the_international_ no. 46 (2013): 60–78 ; T. Kramer, E. UNODC, ‘World Drug Report 2014’, 2014, drug_control_Conventions.pdf ; Jensema, and M. Jelsma, ‘Bouncing https://www.unodc.org/documents/ UNODC, ‘UNODC and the Promotion Back: Relapse in the Golden Triangle’ wdr2014/World_Drug_Report_2014_ and Protection of Human Rights: (Amsterdam: Transnational Institute, web.pdf. Position Paper.’, 2012, http://www. June 2014), http://www.tni.org/files/ unodc.org/documents/justice-and- download/tni-2014-bouncingback-web- 22 UNAIDS, ‘The Gap Report’ (Geneva, prison-reform/UNODC_Human_rights_ klein.pdf. 2014), http://www.unaids.org/sites/ position_paper_2012.pdf. default/files/media_asset/UNAIDS_ 13 World Bank, ‘World Development Gap_report_en.pdf, p.173. 5 UNODC, ‘Contribution of the Executive Report’. Director of the United Nations Office 23 J. Csete, ‘Costs and Benefits of Drug- on Drugs and Crime to the High-Level 14 N. Emmerich, ‘Documentos de Related Health Services’, ed. J. Collins, Review of the Implementation of the Trabajo, Cruce de Fuego: Niños, Niñas Ending the Drug Wars: Report of the Political Declaration and Plan of Action Adolescentes En El Narcotráfico LSE Expert Group on the Economics on International Cooperation towards Mexicano’, November 2011, http:// of Drug Policy (London: LSE IDEAS, an Integrated and Balanced Strategy repositorio.ub.edu.ar:8080/xmlui/ 2014), https://www.lse.ac.uk/IDEAS/ to Counter the World Drug Problem, to bitstream/handle/123456789/713/274_ publications/reports/pdf/LSE-IDEAS- Be Conducted by the Commission on Emmerich.pdf?sequence=1. DRUGS-REPORT-FINAL-WEB.pdf..and Narcotic Drugs in 2014’, 2013, http:// Policy Assessments for HIV. www.unodc.org/documents/hlr/ 15 UNODC, ‘Southeast Asia Opium Survey V1388514e.pdf. 2013.’, 2013, http://www.unodc.org/ 24 WHO, UNODC, UNAIDS, ‘Technical Guide documents/crop-monitoring/sea/SEA_ for Countries to Set Targets for Universal 6 A lengthier version of this paper first Opium_Survey_2013_web.pdf. Access to HIV Prevention, Treatment and appeared as: UNDP, ‘Addressing the Care For Injecting Development Dimensions of Drug 16 EU Presidency Paper, ‘Key Points Drug Users’, 2012, http://apps.who.int/ Policy’, 2015, http://www.undp.org/ Identified by EU Experts to Be Included iris/bitstream/10665/77969/1/ content/dam/undp/library/HIV-AIDS/ in the Conclusion of the Open-Ended 9789241504379_eng.pdf. Discussion-Paper--Addressing-the- Intergovernmental Expert Working Development-Dimensions-of-Drug- Group on International Cooperation 25 Global Commission on HIV and the Law, Policy.pdf. on the Eradication of Illicit Drug and on ‘Risk, Rights and Health’, 2012, http:// Alternative Development’, Open-ended www.hivlawcommission.org/resources/ 7 See, e.g., UN General Assembly, UN intergovernmental expert working report/FinalReport-Risks,Rights&Health- General Assembly Resolution 68/197. group on international cooperation on EN.pdf. International Cooperation against the the eradication of illicit drug crops and World Drug Problem, 2014. on alternative development, UNODC/ 26 WHO, ‘Consolidated Guidelines on HIV CND/2008/WG.3/CRP.4, Vienna, 2-4 July Prevention, Diagnosis, Treatment and 8 See, e.g., P. Keefer and N. Loayza, 2008. Care for Key Populations’, 2014, http:// ‘Innocent Bystanders: Developing www.who.int/hiv/pub/guidelines/ Countries and the War on Drugs’ (World 17 See David Mansfield’s contribution to keypopulations/en/#. Bank Publications, 2010) ; World Bank, this report. 108 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 109

27 UN Committee on Economic, Social 37 See, e.g., Human Rights Watch, ‘Nation 45 Human Rights Watch, ‘Thailand: and Cultural Rights, General Comment Behind Bars: A Human Rights Solution’, Prosecute Anti-Drugs Police Identified in No. 14: The Right to the Highest 2014, https://www.hrw.org/sites/ Abuses.’, February 2008, http://hrw.org/ Attainable Standard of Health, UN Doc. default/files/related_material/2014_ english/docs/2008/02/07/thaila17993. E/C.12/2000/4, 2000, http://www. US_Nation_Behind_Bars_0.pdf ; htm. refworld.org/pdfid/4538838d0.pdf, Open Society Foundation (OSF), paragraph 43(d). ‘Presumption of Guilt: The Overuse 46 P. Alston, ‘Report of the Special of Pretrial Detention’, 2014, http:// Rapporteur on Extrajudicial, Summary 28 WHO, ‘WHO Model List of Essential www.opensocietyfoundations.org/ or Arbitrary Executions: Study on Medicines: 18th List’, 2013, http://www. publications/presumption-guilt-global- Targeted Killings’, UN Doc. A/HRC/14/24/ who.int/medicines/publications/ overuse-pretrial-detention. Add.6 (UNHRC, May 2010), http://www2. essentialmedicines/18th_EML_Final_ ohchr.org/english/bodies/hrcouncil/ web_8Jul13.pdf, pp.1,2,32. 38 UNODC, CND and CCPCJ. Drug Control, docs/14session/A.HRC.14.24.Add6.pdf. Crime Prevention and Criminal Justice: A 29 UNAIDS, ‘The Gap Report’. Human Rights Perspective: Note by the 47 United Nations, United Nations Executive Director, 2010, https://www. Convention against Illicit Traffic in 30 INCB, Report of the International unodc.org/documents/commissions/ Narcotic Drugs and Psychotropic Narcotics Control Board for 2014, 2015, CCPCJ/CCPCJ_Sessions/CCPCJ_19/E- Substances, 1988, 1988, https://www. https://www.incb.org/documents/ CN15-2010-CRP1_E-CN7-2010-CRP6/E- unodc.org/pdf/convention_1988_ Publications/AnnualReports/AR2014/ CN15-2010-CRP1_E-CN7-2010-CRP6.pdf, en.pdf, Article 14(2). English/AR_2014.pdf. paragraphs 3, 4. 48 Ibid. 31 UNODC, ‘World Drug Report – Volume 1: 39 M. Nowak and D. Barrett, ‘The United Analysis’, June 2005, http://www.unodc. Nations and Drug Policy: Towards a 49 L. Stack, ‘US Changes Course on Afghan org/pdf/WDR_2005/volume_1_web.pdf. Human Rights- Based Approach’, 2009, Opium, Says Holbrooke’, The Christian http://papers.ssrn.com/sol3/papers. Science Monitor, June 2009, http:// 32 See David Mansfield’s contribution to cfm?abstract_id=1461445. www.csmonitor.com/World/terrorism- this report. security/2009/0628/p99s01-duts.html 40 Data compiled from P. Gallahue et al., 33 G. Robles, G. Calderon, and B. Magaloni, ‘The Death Penalty for Drug Offences. 50 K. Z. Guyton et al., ‘Carcinogenicity of ‘Las Consecuencias Económicas Global Overview 2012: Tipping the Tetrachlorvinphos, Parathion, Malathion, de La Violencia Del Narcotráfico En Scales for Abolition’ (International Harm Diazinon, and Glyphosate’, The Lancet México.’, 2013, http://www.iadb.org/ Reduction Association, 2012), http:// Oncology 16, no. 5 (2015): p490–91. es/investigacion-y-datos/detalles-de- www.ihra.net/files/2012/11/27/HRI_- publicacion,3169.html?pub_id=IDB- _2012_Death_Penalty_Report_-_FINAL. 51 These include; the International WP-426. pdf. UN agencies and human rights Convention on the Elimination of experts have affirmed this position. Racial Discrimination; the 2007 UN 34 Organization of American States (OAS), Declaration on the Rights of Indigenous ‘The Drug Problem in the Americas. 41 J.J. Amon et al., ‘Compulsory Drug Peoples 2007; ILO Convention 169; Introduction and Analytical Report’, Detention in East and Southeast Asia: the Indigenous and Tribal Peoples 2013, http://www.oas.org/DOCUMENTS/ Evolving Government, UN and Donor Convention 1989; and the UNESCO ENG/PRESS/INTRODUCTION_AND_ Responses’, International Journal of Drug Convention for the Safeguarding of ANALYTICAL_REPORT.PDF.; West African Policy 25, no. 1 (2014): 13–20. Intangible Cultural Heritage 2003. Commission on Drug Policy, ‘Not Just in Transit: Drugs, the State and Society 42 UNODC and WHO, ‘Principles of Drug 52 B. C. Labate and C. Cavnar, eds., in West Africa’, 2014, http://www. Dependence Treatment.’, March 2008, Prohibition, Religious Freedom, and wacommissionondrugs.org/report/. http://www.unodc.org/documents/ Human Rights: Regulating Traditional drug-treatment/UNODC-WHO- Drug Use. (Springer, 2014). 35 UNDP in Latin America, ‘Informe Principles-of-Drug-Dependence- Regional de Desarrollo Humano 2013- Treatment-March08.pdf. 53 See, e.g., UNDP, ‘Practical Manual: Legal 2014, Seguridad Ciudadana Con Rostro Environment Assessment for HIV: An Humano: Diagnóstico Y Propuestas 43 J. Csete and D. Tomasini-Joshi, Operational Guide to Conducting Para América Latin.’, 2014, http://www. ‘Drug Courts: Equivocal Evidence National Legal, Regulatory and Policy latinamerica.undp.org/content/dam/ on a Popular Intervention’, 2015, Assessments for HIV’, 2014, http://www. rblac/img/IDH/IDH-AL%20Informe%20 https://dl.dropboxusercontent. undp.org/content/dam/undp/library/ completo.pdf, pp.33,77-78. com/u/64663568/library/OSF-Drug- HIV-AIDS/Governance%20of%20HIV%20 Courts-Report.pdf. Responses/UNDP%20Practical%20 36 P. Mannava et al., ‘Dependent on Manual%20LEA%20FINAL%20web.pdf ; Development: The Interrelationships 44 Gallahue et al., ‘The Death Penalty for Global Commission on HIV and the Law, between Illicit Drugs and Drug Offences’. ‘Risk, Rights and Health’. Socioeconomic Development’, 2010, http://reformdrugpolicy.com/wp- content/uploads/2011/09/Dependent- on-Development.pdf. 108 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 109

Measuring the Impacts of Repressive Drug Policies on Women

Kasia Malinowska-Sempruch and Olga Rychkova

n the public mind, the ‘war on drugs’ usually conjures up a male image. In most countries, SUMMARY official statistics would show that men, indeed, are the majority of people who use Idrugs recreationally, who have problematic use and who sell drugs. But punitive drug laws and policies pose a heavy burden on women and, in turn, on the children for whom ■■ Punitive drug laws and policies women are often the principal caregivers. pose a heavy burden on women and, in turn, on the children for whom women are often the Men and boys are indeed put at risk of HIV principal caregivers. and hepatitis C by prohibitionist policies that WHAT THE UN AND OTHER impede access to and use of prevention and INTERNATIONAL BODIES SAY ■■ In Latin America, between 2006 and 2011, the female prison care services, but women and girls virtually population increased from 40,000 always face a higher risk of transmission of to more than 74,000, some these infections. Men suffer from unjust In a resolution in 2005, the UN Commission facing sentences as high as 30 incarceration for minor drug offences, but on Narcotic Drugs (CND) formally recognised years, largely because of drug the ‘adverse impact of drug use on women’s convictions. in some places women are more likely than men to face harsh sentences for health, including the effects of fetal exposure’ ■■ Punitive drug laws result in children minor infractions. and urged member states to implement being taken from their mothers, ‘broad-based prevention and treatment a reduced access to essential Treatment for drug dependence is of poor programmes for young girls and women’ and health and treatment services and quality in many places, but women are stigmatise vulnerable populations to ‘consider giving priority to the provision of at an especially high risk of undergoing placing them at a much higher risk treatment for pregnant women who use illicit inappropriate treatment or not receiving of HIV and HCV infection and other drugs.’3 It also asked the UNODC to include health-related issues. any treatment at all. All people who use more gender-disaggregated information in drugs face stigma and discrimination, but ■■ Women who inject drugs have its drug reports. A 2012 CND resolution noted women are often more likely than men to be a far higher HIV prevalence than that ‘women with substance abuse problems men; as well as face a higher risk of severely vilified as unfit parents and ‘fallen’ are oft deprived of or limited in their access violence, incarceration and a host members of society. of other human rights issues. to effective treatment that takes into account As other papers in this report highlight, their specific needs and circumstances.’ It ■■ Where drug-related health services exist, they are rarely tailored to criminalisation and stigmatisation of urged member states to ‘integrate essential the needs of women. Moreover, those at greatest risk of HIV infection fuels female-specific services in the overall design, despite being critically needed, the epidemic. People who inject drugs implementation, monitoring and evaluation anti-violence services remain experience all of this and, consequently, of policies and programmes addressing largely unavailable to women who they account for 30% of new HIV infections drug abuse and dependence,’ including use drugs. outside of sub-Saharan Africa.1 In China, the integration of ‘childcare and parental ■■ Less punitive laws for minor and Malaysia, the Russian Federation, Ukraine education’ in treatment services. It further non-violent drug infractions are and Vietnam, they account for 67% of all encouraged members states to ‘take into the best single means of reducing 2 incarceration of women and thus HIV cases. account the needs of women who have experienced sexual and other violent trauma incarceration-related abuse. The This paper elaborates on the gender authors suggest a comprehensive related to drug abuse’ in their programmes.4 set of new policies, targets, metrics dimension of drug policy and law with and indicators to reverse or at least attention to the burdens that ill-conceived mitigate these impacts. policies and inadequate services place on women and girls. 110 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 111

The UN Special Rapporteur on Violence petty drug sales.19 Mandatory minimum Against Women, Rashida Manjoo, reported ISSUES RELEVANT TO WOMEN sentences exacerbate the vulnerable position to the General Assembly in 2013 that of women, particularly when they have no drug laws and policies ‘are a leading cause leverage in plea-bargaining.20 Women are at of rising rates of incarceration of women Women and drug-related the lowest rung of the trafficking hierarchy, around the world’ and expressed concern criminal justice and imprisoning them has little impact on the that in some countries ‘women who larger drug trade; as long as there are poor commit relatively low-level drug crimes’ Avoid and reduce drug-related and vulnerable women, there will be couriers. are more likely to be handed long prison incarceration for women: There is some progress being made on this sentences than men who commit major front in Latin America, specifically Bolivia, trafficking offences. She highlighted that In the supply chain of illicit drugs, women Costa Rica and Ecuador, which have passed ‘[w]omen who commit relatively low-level and girls are usually minor links, but laws that take into consideration the drug crimes find themselves serving prison they suffer a disproportionate burden in precarious and often low-level position of time while more serious offenders often application of criminal law. Globally, women women involved in the drug trade.21 escape imprisonment by entering into plea- are incarcerated more for drug offences, 5 bargaining deals.’ mostly non-violent, than for any other 13 In its 2014 report on Brazil, the Committee crime. Understand the socioeconomic drivers of on the Elimination of Discrimination In Latin America, between 2006 and 2011, engagement with the drug trade: Against Women (CEDAW) highlighted the the female prison population increased Prosecution of women for drug-related large increase in the number of women from 40,000 to more than 74,000, some offences also rarely takes into account the in prison and pretrial detention in the facing sentences as high as 30 years, largely reasons why women may be involved with country, ‘a large proportion of them… 14 because of drug convictions. As shown in drugs in the first place, which may include imprisoned for committing drug trafficking- Figure 1 (below), from 1977 to 2013 in the pressure from a sexual partner, histories of related offences, in particular for having US, the incarceration of women rose nine- domestic violence or other abuse, lack of transported drugs (mules) at the request fold, due in great part to harsh drug laws. mainstream livelihood opportunities, and of their partners.’ CEDAW urged Brazil to The burden of this mass incarceration fell on lack of accessible treatment programmes help women avoid drug-related activities women of colour, though they did not have and related social support.22 Prison sentences and incarceration and also to improve the 15 higher rates of drug use than white women. are likely to exacerbate most of these factors. conditions of those incarcerated, including ensuring housing in facilities separate from In many countries, a higher percentage of In many countries, women who are men and providing appropriate services women than men are imprisoned for drug- convicted for drug offences tend to be socio- for pregnant women.6 In a 2014 policy related offences (though the number of economically marginalised and are often 16 briefing UN Women emphasised that women is smaller). Among the national single parents.24 They often share a similar ‘women’s involvement in drug use and the figures cited by the UN Special Rapporteur socioeconomic profile; poor, low levels of drug trade reflects the decreased economic on violence against women are the following: education and frequently belong to ethnic opportunities and lower political status that about 50% of women in state custody in minorities, and ‘many of them have been women face in everyday life.’10 The agency Spain and Estonia were convicted of drug deceived, threatened or intimidated into stresses that women who participate in the offences, almost 70% in Tajikistan, 68% in transporting drugs.’25 A recent report by The drug trade, usually in low-level positions, Latvia, about 40% in Georgia and Kyrgyzstan Research Consortium on Drugs and the Law often do so because they ‘lack education and 37% in Italy. In Ecuador, 77% of the (CEDD) underscores the fact that drug law [and] economic opportunity or have been women in state custody were convicted of implementation is selective and ‘generally victims of abuse.’11 UN Women also cites drug offences, compared to 35% of the male it is those who are the poorest and weakest 17 gross inequality in access to health services prison population. who are punished, and women in situations for women who use drugs. Meanwhile, in of social exclusion and/or vulnerability are 26 2015, the UNDP noted that the ‘corruption, Reduce the disproportionate impact of disproportionately affected.’ violence and instability’ fuelled by the war mandatory minimum sentences on drugs generates ‘large-scale human on women: rights abuses’ and ‘discrimination and Quantify, understand and reduce marginalisation of people who use drugs, The Special Rapporteur on violence against the impact on the children of indigenous peoples, women and youth.’ It women noted that the relative harshness incarcerated women: also highlights the high rate of drug-related of drug sentences handed down to women incarceration of women and its impact on is likely because they often do not have the insider information that enables accused men The impact on children of the mass children and families as a problem of human incarceration of women is profound. Large- development.12 to plea-bargain or make deals with prosecutors in exchange for lighter sentences.18 In some scale incarceration of women in the US in countries, conspiracy laws, which may have recent decades, for example, is responsible been designed to ensnare collaborators of for a sharp increase in placement of low- traffickers and organised crime networks, income children in foster care in many US are often applied to women who had no states as extended family members are unable to cope.27 Children may be impeded role in major trafficking but lived with or drove the car of someone involved with from visiting their mothers in prison because 110 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 111

women’s penal institutions are few and Improve community reintegration post- policymakers’ stated concern about drug far between in many countries. Policies incarceration, including employment use in pregnancy and its impact on the differ from jurisdiction to jurisdiction as to opportunities: new-born. Some countries give pregnant whether women who give birth in prison are women priority in treatment services for After release, the ex-convict status of permitted to keep their infants with them,28 drug dependence, as recommended by women may limit their opportunities for but it is likely that women judged to be unfit UNODC.32 Unfortunately, as UNODC also employment and social engagement and mothers because of past involvement with notes, women, including pregnant women, in some cases their families’ access to social drugs will have difficulties making the case in much of the world ‘encounter significant or economic support programmes. For to keep their infants. Women incarcerated systemic, structural, social, cultural and example, a number of US states require drug for drug offences are often single mothers personal barriers’ to obtaining good-quality testing of people as a condition of receiving and heads of household, with responsibility drug treatment, including ‘lack of childcare housing or welfare benefits, a policy that has for caring for children and other family [in treatment programmes] and punitive been considered in other countries and has members, so ‘their incarceration has a bigger attitude toward parenting and pregnant been criticised (and in some cases opposed impact on the destruction of family ties women, which makes them fear losing in US courts) for stigmatising the poor, and greater implications for children’s best custody of their children and prevents them not identifying people with problematic interests’29 than the incarceration of men. from seeking treatment early enough.’33 drug use, unjustifiably invading privacy, and exacerbating discrimination based on In a number of countries in Eastern Europe 31 Provide effective treatment and race and ethnicity. Women may also have and Central Asia, for example, being in complementary social services to women difficulty regaining custody of their children treatment for a drug problem means being with drug dependence: if they have been placed in foster care, registered as a drug user, which in turn may particularly if women also face barriers to be automatic grounds for losing custody Women who need suitable treatment for employment. of a child.34 In Russia, pregnant women drug dependence rarely have access to registered as or otherwise judged to be drug it in prison or pretrial detention (see next users reported having their children taken section). Incarcerated women, especially away from them in the maternity ward soon marginalised and socioeconomically Women, drug dependence and after birth.35 UNODC notes that in a number disadvantaged women, are highly vulnerable drug treatment of countries, drug use during pregnancy to violence and sexual abuse in detention, can result in automatic criminal charges Remove barriers to treatment - particularly as has been documented in many places, and incarceration for the duration of the the fear of losing custody of children: but incarcerated women who are drug- pregnancy and sometimes beyond.36 dependent (and unable to obtain treatment) When women do figure into drug policy may be more likely to face violent extortion decision-making, it is often around and abuse than other imprisoned women.30

Figure 1. Number of Women in US State and Federal Prisons, 1977-201323

In Latin America, ‘ between 2006 and 125,000 2011, the female prison population 100,000 increased from 40,000 to more 75,000 than 74,000, some

facing sentences 50,000 as high as 30 years,

largely because of 25,000

drug convictions.

0

1980 1983 1986 1989 1992 1995 1998 2001 2004 2007 2010 2013

’

112 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 113

Recognise that poverty, social exclusion, Strive toward providing destigmatised, While research indicates that pregnancy malnutrition, and violence frequently affordable, scientifically sound, can be a powerful motivator to seek drug have much greater impacts on prenatal gender-appropriate treatment for drug treatment, in places where drug use is and neonatal health than maternal drug dependence: criminalised or where drug use can lead to loss consumption patterns: of child custody, as noted above, pregnancy Even if women have the courage to seek perversely can be an impediment to seeking Unfortunately, concern for pregnant women treatment, in many countries affordable, care.43 Perhaps most importantly, services with respect to drugs is often based on ill- scientifically sound, gender-appropriate designed for women need to address the informed ideas about drug dependence treatment for drug dependence is a profound stigma and demonisation faced by and pregnancy. The notion of babies ‘born distant dream. Treatment services are women who use drugs, since they are often addicted’ has been popularised in mass rarely designed specifically for women, quickly branded by society as immoral and media with no grounding in science. It has even though women differ greatly from unfit mothers. been known for over 20 years, for example, men in their more rapid progression to that the extensive portrayal in the US of a dependence, their responses to treatment generation of ‘crack babies’ who would be and the physical and psychological Women, hepatitis C and harm mentally handicapped for life was a vilifying comorbidities they experience.41 An construction by media and political leaders international review of literature—though reduction with no basis in reality.37 A large body of research unfortunately remains sparse Harm Reduction, endorsed by the WHO, research indicates that the effects of cocaine from many parts of the world—found that UNODC, and UNAIDS, effectively reduces HIV exposure in utero are not associated with compared to men, women who seek drug transmission among people who inject drugs long-term intellectual or behavioural treatment are younger and less educated and provides other measurable benefits to deficits.38 Rather, it is the circumstances of and are more likely to be unemployed, have their health and communities. Though an poverty, social exclusion, malnutrition, and dependent children, and/or suffering from increasing number of countries are including violence in which many drug using women anxiety, depression and suicidal thoughts.42 harm reduction in their national policies and are trapped, partly as a result of the ‘war on Programmes that seek to instil guilt about strategic plans, there remains a significant drugs,’ that affect their children’s opportunity drug use are ill-suited for women already gap between what we know works and what to have access to health and education burdened with guilt and shame. For women, is actually being done.44 For example, in services on par with other children.39 Still, a treatment facility that lacks child care or 2012, of the 158 countries with documented erroneous ideas about neonatal ‘addiction’ does not allow them to bring their children injecting drug use, only 86 had implemented circulate and gain a foothold in the popular may be a serious barrier to seeking or needle and syringe exchange programmes. mind, even to the point of calling into staying in treatment. Women may also be And of these, only a handful were distributing question decades of research and WHO less likely than men to have the disposable the recommended 200 needles/syringes per endorsement of the effectiveness of income for costly treatment services or for drug user per year.45 The reasons that HIV is opiate substitution therapy in pregnancy.40 transportation to far-away services. These ideas also reinforce stigma and the demonisation of women who use drugs.

Figure 2. US Female Incarceration Rates by Race and Ethnicity. 31 December 2013 77

CEDAW urged Brazil ‘ to help women avoid drug-related Black activities and 120 incarceration and also to improve 100 the conditions of 80 Latina those incarcerated, including ensuring 60 White housing in facilities 40 separate from men and providing 20 appropriate services 0 for pregnant women. Rate per 100,000 ’ State and Federal Prison 112 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 113

so prevalent among injecting drug users, Where violence or trauma is also part of Russia and Georgia found that women who according to UNAIDS, are criminalisation the picture, the risk may be even greater. injected drugs frequently relied on their and punitive laws, absent or inadequate Research from some countries suggests that boyfriends or spouses to go to the needle prevention services, widespread societal women who use drugs are at very high risk exchange, largely because women’s drug stigma and lack of investment.46 of sexual and physical violence, especially use is so deeply stigmatised and needs to from sexual partners, and particularly when be kept secret, thus depriving women of the In many countries, there is a higher they require assistance from partners in counselling and support they could have incidence and prevalence of HIV among injecting or obtaining drugs.54 In general, the received.58 The study also demonstrated female injecting drug users (IDUs) than male. intertwining of drug-related and sex-related that when harm reduction services helped Studies in nine European Union countries HIV risk is frequently prominent in the lives women with child-care, supplies, advice, showed that the average HIV prevalence of women who inject drugs but infrequently and made sure that welcoming women was more than 50% higher among women addressed in programmes. counsellors were present, women used the IDUs than their male counterparts.47 services more.59 In Yunnan Province, China, HIV prevalence was As suggested by UNAIDS’ figures, women significantly higher among women IDUs than who use drugs and engage in sex work are Whatever the accessibility and quality of harm among male IDUs,48 and in Mombasa, Kenya, at very high risk for HIV contraction, as well reduction (and drug treatment) services that the prevalence of HIV infection was 50% among as magnified stigma and criminalisation, may be available to women, these services all IDUs, but 85% among women IDUs.49 which are powerful barriers to seeking and are rarely integrated with reproductive using health services. There is significant health services. Women who use drugs may Many countries do not report HIV prevalence overlap between sex work and drug use in be in particular need of reproductive health for women who inject drugs, but in UNAIDS’ many countries. Recognising that stigma information and care. UNODC notes that 2014 compilation of available data, the makes data on this subject somewhat cocaine and many opiates may interfere with pooled HIV prevalence among women incomplete, the UN Reference Group on the menstrual cycle such that women may who inject drugs was 13% compared to HIV and Drug Use cites estimates that 15%– be at risk of unplanned pregnancy or may 9% among men from the same countries.50 66% of women who inject drugs in the US be unaware of being pregnant and thus may Some of the highest HIV prevalence rates have engaged in sex work at some time, delay seeking prenatal care or drug-related are among women sex workers who inject 20%–50% in Eastern Europe, 49%–94% in health services.60 Integrated reproductive drugs.51 The lack of investment in harm Russia, Kyrgyzstan, Georgia and Azerbaijan and drug-related services—or easy referral reduction services in many parts of the world and 21%–57% in China.55 The Reference between the two by health professionals affects both women and men, but women Group, which reviewed a large number of aware of the links—are needed but are often face HIV risks and barriers to seeking and studies, suggests that the risk from sex, lacking. using services that are specific to them. particularly where sex workers are unable Given the high rate of arrest and detention The time of initiation to injection is the to demand condom use, and injection use of women for drug-related offences in many highest-risk period for transmission of HIV together make for very high rates of risk of places, it is especially important that harm and hepatitis B and C.52 Evidence from HIV contraction that is further, and too often, reduction services be available to women some parts of the world indicates that when compounded by violence, including sexual who are in state custody, which is always women are new to injecting drugs, they may violence (see also next section).56 It is also a high-risk environment for HIV. A WHO rely on a sexual partner or other person to the case that women who use drugs may review of data from numerous countries prepare the drug and actually inject them. not identify themselves as sex workers even found that women in prison had consistently This scenario may mean that women are if they trade sex for drugs or money when higher prevalence of both HIV and hepatitis more likely to be injected by used and they need to. C than incarcerated men.61 From needle potentially contaminated equipment or with Underinvestment in proven harm reduction exchange and opiate substitution to contaminated solutions.53 services is a central challenge in national peer-led information and support and global responses to HIV and hepatitis C. programmes for people who use or used Where services exist, they are rarely tailored drugs, harm reduction programmes are In Russia, to the needs of women who use drugs. For less available in women’s than in men’s pregnant women example, they rarely take into account child detention facilities.62 In Kyrgyzstan, for ‘ registered as or otherwise care and other demands on women’s time, example, where methadone and sterile judged to be drug users do not take measures to address violence injection equipment are both available reported having their that women might face at home, from in some men’s prisons and in Georgia, children taken away from police or other men using the services or where methadone is available to male them in the maternity help women to overcome deep stigma prisoners, these services are not available ward soon after birth.’ and social vilification.57 A study in Ukraine, to incarcerated women.63 114 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 115

Overall, efficient and effectively delivered women who use drugs as criminals Policy Goals: Empowering Women in Harm services depend on the availability and without formal legal grounding— makes Reduction Services: analysis of gender and age disaggregated it extremely difficult for women to report data specifically on addiction, drug use, violence to police and to seek safety, and service access among women and girls. justice and essential health services. ■■ Programmes that offer low-threshold access to services such as centres They also depend on drug laws that facilitate Some 60% of women who participated that are only for women or that have rather than deter provision of and access to in the study in Kyrgyzstan had sustained women-only hours. Operational services for women. Institutionalised stigma injuries as a result of abuse but did not hours should be set at times that and discrimination must be addressed. Legal seek medical care out of fear of arrest suit the needs of their clients who literacy and services can be offered that and even greater violence.71 In some may be working or responsible for empower people who inject drugs and law countries, such as Georgia, in order to be childcare. Centres located in areas/ enforcement and healthcare personnel can placed in a shelter, women are required neighbourhoods that are convenient be sensitised to challenge discrimination to report violence to police and thus to women as well as to particular and abuse. People who inject drugs know face the risk of arrest for drug use. In minorities better than any of us their experience and Russia and the US, being identified as a and migrants. we can empower them to support their drug user might trigger child protection ■■ Programmes that are welcoming peers and be active in the HIV response in agencies to remove children from their to mothers by offering safe, clean, their communities.66 parents, which further discourages age-appropriate spaces where women from seeking help in situations children can stay while their of violence. The existing service gap mothers receive care. Women do in combination with repressive drug not want their children to know Violence and abuse policies leaves women entrenched in they are drug users so they require situations of abuse, without access to programmes that provide services Studies show that women who use drugs are that do not interfere with their family healthcare, safety or justice. more likely than men to have experienced responsibilities. physical and/or sexual abuse.67 In a recent Criminal networks controlling drug ■■ Centres that support rather than survey in Kyrgyzstan, 81% of women in markets may effectively be more interfere with their client’s other harm reduction programmes reported powerful than police and may engage commitments will increase their surviving sexual, physical or other injurious in abuse of women and girls with chance of success. To that end, mobile violence at the hands of their partner, family impunity. In Colombia, for example, dosing services and take-home or police.68 In the US, surveys have reported the leader of the Urabeños, a criminal dosing are important features of such that 25%–57% of women in drug treatment network judged to be the largest drug treatment and should be made widely trafficking organisation in the country, available.64 Also, creating services and programmes experienced intimate partner has been reported to capture young policies that allow women flexibility violence in the previous year compared in the frequency of their visits, such to 1.5%–16% in the general population.69 girls into sexual slavery, often luring as increasing the number of needles/ Exposure to gender-based violence has girls from impoverished communities syringes that can be exchanged per a profound effect on women’s health: with luxury items.72 High-level drug visit. it intensifies the risk of HIV by limiting traffickers in Mexico, including the notorious Zeta cartel, have been ■■ Integrated services that incorporate women’s ability to negotiate safer sex and implicated in kidnapping of women sexual and reproductive health injection practices, and women’s attempts education and services and that to seek and use drug treatment, HIV and girls and using them as sex slaves, network with women’s shelters, prevention programmes or other services as well as engaging in international sex domestic violence and rape are often sabotaged or discouraged when trafficking.73 prevention, and drug treatment.65 they are in abusive relationships. Despite ■■ Programmes that address the unique the critical need, anti-violence services remain largely unavailable to women who needs of specific sub-populations Women and crop eradication such as drug-using sex workers, use drugs. Providers at services responding women in prison, transgender to the needs of people who use drugs or Eradication of drug crops — poppy, women, and women who have sex sex workers often lack necessary knowledge coca leaf and cannabis — is pursued with women. and skills to address gender-based violence, as a central element of drug control in while anti-violence shelters often explicitly a number of countries. Aerial spraying ban women with criminal records, resulting of coca fields in the Andes usually with in a service gap. In her 2011 report, the UN the herbicide glyphosate, although Special Rapporteur on violence against recently halted in Colombia, has been women asserted that unpreparedness of widely condemned as ineffective in domestic violence shelters to serve women reducing overall production of coca who use drugs constitutes a human rights and toxic to the environment and the 70 violation. people in it.74 There is some evidence Women who use drugs are also deterred that exposure to glyphosate — which is from seeking help due to their criminalised unavoidable for communities subjected status. Criminalisation of women who use to aerial spraying — is associated with drugs — whether by law or just by treating miscarriage or premature delivery 114 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 115

among pregnant women.75 The insecurity healthcare for women, and integrate associated with displacement caused by these services with reproductive UN agencies have produced numerous healthcare, and other services technical documents on women and drugs, crop eradication as well as the presence of particularly on improving health services, sought by women to maximise military and paramilitary eradication teams including HIV prevention, for women who in communities is likely to affect women convenience, accessibility, and use drugs and women in prison settings.7 coherence of care. Services should disproportionately. Together they suggest specific metrics, be accessible to women caring for indicators and targets, including: children and should incorporate supportive child-care services and CONCLUSIONS AND counselling as much as possible. 1. Reducing incarceration. RECOMMENDATIONS ■■ Ensure availability and accessibility a. Women in prison suffer a higher for metrics of appropriate, good quality, non- prevalence of HIV; are vulnerable discriminatory anti-violence services to gender-based sexual violence; for all women in need, regardless of may engage in risky practices such as tattooing and injecting drug The widespread recognition of the failure their drug use status and without use. of the war on drugs has come at an involving the police or other enormous cost to women. By compounding criminal justice system actors. b. Women in prison tend to be and perpetuating women’s existing young and many are mothers, with ■■ Ensure that treatment for drug children living with them in prison vulnerabilities and the discrimination they dependence and harm reduction or in care outside. face, punitive drug policy regimes function services are available to women in c. Many women in prison are as a tool of further oppression. For all the the custody of the state (prison or pregnant and give birth in terrible impact that criminalisation and pretrial) on a level equal to those prison with minimal access to incarceration of women involved with drugs offered to men and women in the reproductive care or post-natal has had on their lives and their families, there community and that services are services. Meanwhile, an absence is no evidence that it has deterred drug use non-stigmatising and independently of HIV treatment services increases 8 or marketing. monitored. mother-to-child transmission. ■■ Ensure integration of respectful 2. Reducing legal barriers to accessing But the story does not need to end there. In and good quality harm reduction, services, including the criminalisation drug policy reform debates and movements drug treatment, and reproductive of people who use drugs. happening around the world, the rights of health services — or ready referral 3. Making all services gender-sensitive women should be a central concern. As noted mechanisms among the three — to and integrating close evaluation with by UNODC, The International Network of enable pregnant women with opiate service user input. People who Use Drugs (INPUD), UN Women, dependence to have easy access 4. Improving data collection and and the WHO, drug policy reform must to opiate substitution therapy, for programme planning, implementation recognise that the vast majority of women example, and women living with and evaluation in line with international arrested and incarcerated for drug offences HIV or HCV to prevent vertical best practices. transmission of these infections. have not committed a violent crime or are 5. Focusing on expanding comprehensive first-time offenders, and harsh punishments ■■ Institute measures to reduce health and HIV services to ensure in these cases are disproportionate and violence and abuse against they reach all women who need them, unjust, both to them and to their families.76 incarcerated women, including with a particular focus on those who are incarcerated and women who use Less punitive laws for minor and non- functioning mechanisms of drugs. complaint and redress. violent drug infractions are the best single means of reducing incarceration of women ■■ Train police on supportive and non- a. For example: UNAIDS 2014 and thus incarceration-related abuse. Such judgmental approaches to dealing Guidance Note suggests targets of: measures will also reduce stigma and enable with women involved with drugs, i. ‘more than 60% of people who women to have better access to services in including referral to appropriate inject drugs regularly reached the community. services, and establish means of by NSPs [or greater than 200 police oversight and complaint and syringes distributed per person In addition to law and policy reform along redress mechanisms for persons per year]. these lines, policies and programmes should claiming police abuse. ii. more than 40% of people who incorporate and pursue the following goals ■■ Develop humane policies for inject opiates reached by OST and practices: protecting families against arbitrary iii. more than 75% of people who ■■ Collect and use gender- removal of children from the inject drugs who do not know disaggregated data on drug use custody of their mother (or father), their status and who are HIV and drug-related health and social with meaningful participation of positive having received an HIV services, but without invading women who use drugs, respecting test in the past 12 months and know their results.’9 women’s privacy or contributing to the fact that drug use alone is not stigma. evidence of child neglect or harm. ■■ Ensure access to affordable, gender- ■■ Ensure meaningful participation appropriate and non-judgmental of women who use drugs in drug dependence treatment, harm policy and programme planning, reduction and other drug-related implementation and evaluation.. 116 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 117

Notes

1 UNAIDS, ‘The Gap Report’ (Geneva, 10 UN Women, ‘A Gender Perspective 23 Figure 1: Source: US Bureau of 2014), http://www.unaids.org/ on the Impact of Drug Use, the Drug Justice Statistics, ‘Female prisoners sites/default/files/en/media/ Trade and Drug Control Regimes under State or Federal jurisdiction,’ unaids/contentassets/documents/ (Policy Brief)’ (New York, 2014). Corrections Statistical Analysis unaidspublication/2014/ Tool, www.bjs.gov, as cited in 11 Ibid. UNAIDS_Gap_report_en.pdf. Drug Policy Alliance, ‘Women 12 UNDP, ‘Perspectives on the and Gender in the Drug Wars’. 2 UNAIDS, ‘The Gap Report’. Development Dimensions of Drug 24 See, e.g., C. Giacomello, ‘How the 3 UNCND, ‘Women and Substance Control Policy’ (New York, 2015). Drug Trade Criminalizes Women Use’, Resolution 48/6, 48th 13 L. Turquet, ‘Report on the Progress Disproportionately’, NACLA Report Session (Vienna, March 2005). of the World’s Women 2011- on the Americas 47, no. 2 (2014): 4 UNCND, ‘Promoting Strategies 2012: In Pursuit of Justice’ (New 38–41 ; Drug Policy Alliance, ‘Women and Measures Addressing Specific York: UN Women, 2011), http:// and Gender in the Drug Wars’. Needs of Women in the Context of www.unwomen.org/~/media/ 25 Boiteux, ‘The Incarceration of Comprehensive and Integrated Drug headquarters/attachments/ Women for Drug Offenses’, p.4. Demand Reduction Programmes sections/library/publications/2011/ and Strategies’, Resolution 55/5, progressoftheworldswomen- 26 Ibid., pp.2-3. 55th Session (Vienna, March 2012). 2011-en.pdf. 27 M. Comfort, ‘Punishment Beyond the 5 R. Manjoo, ‘Pathways To, Conditions 14 C. Youngers, ‘Behind the Staggering Legal Offender’, Annual Review of Law and Consequences of Incarceration Rise in Women’s Imprisonment in and Social Science 3 (2007): 271–96. among Women’, Report to UN Latin America’ (New York: Open 28 Manjoo, ‘Pathways to, Conditions General Assembly, A/68/340, Society Foundation, 2014), www. and Consequences of 68th Session, (21 August 2013). opensocietyfoundations.org/voices/ Incarceration among Women’. behind-staggering-rise-womens- 6 Committee on the Elimination of imprisonment-latin-america. 29 Boiteux, ‘The Incarceration of Discrimination against Women Women for Drug Offenses’, p.4. (CEDAW). ‘Concluding Observations 15 Drug Policy Alliance, ‘Women on Brazil’, CEDAW/C/BRA/ and Gender in the Drug Wars’, 30 S. Pinkham, B. Myers, and C. Co/7, 51st Session, 23 February 2015, www.drugpolicy.org/ Stoicescu, ‘Developing Effective 2012: paragraphs 32, 33. women-and-gender-drug-war. Harm Reduction Services for Women Who Inject Drugs’, Global State of 7 C, INPUD, WHO, UN Women, ‘Policy 16 Manjoo, ‘Pathways To, Harm Reduction 2012 (London: Brief: Women Who Inject Drugs Conditions and Consequences of Harm Reduction International, and HIV: Addressing Specific Incarceration among Women’. 2012), http://www.ihra.net/ Needs’ (Vienna, 2014), http:// 17 Ibid., paragraphs 23, 26. files/2012/07/24/GlobalState2012_ www.unodc.org/documents/ Web.pdf, pp.126-135. hiv-aids/publications/WOMEN_ 18 Ibid., paragraph 26. POLICY_BRIEF2014.pdf ; UNAIDS, 31 See E. Wincup., ‘Thoroughfares, 19 Brennan Center for Justice and ‘Services for People Who Inject Crossroads and Cul-de-Sacs: Drug American Civil Liberties Union, Drugs’ (Geneva, 2014), http://www. Testing of Welfare Recipients.’, Caught in the Net: The Impact unaids.org/sites/default/files/ The International Journal on of Drug Policies on Women and media_asset/2014_guidance_ Drug Policy 25, no. 5 (2014): Families. (New York, NY: Brennan servicesforpeoplewhoinjectdrugs_ 1031–1037; N. Giesbrecht and Center for Justice, 2005). en.pdf. S. Macdonald, ‘Mandatory Drug Testing and Treatment for Welfare 8 UNODC and UNAIDS, ‘Women and 20 Ibid., p.3 ; Manjoo, Pathways to, Recipients in Ontario, Canada.’, HIV in Prison Settings’ (Vienna, Conditions and Consequences Addiction (Abingdon, England) 2008), www.unodc.org/documents/ of Incarceration among 96, no. 2 (2001): 352–53. hiv-aids/Women%20and%20 Women’, paragraph 26. HIV%20in%20prison%20settings. 21 L. Boiteux, ‘The Incarceration of 32 UNODC, ‘Substance Abuse Treatment pdf ; UNODC, ‘Handbook for Prison Women for Drug Offenses’ (The and Care for Women: Case Studies Managers and Policymakers on Research Consortium on Drugs and Lessons Learned’ (Vienna, 2004). Women and Imprisonment’ (Vienna, and the Law (CEDD), 2015), p.5. 2008), www.unodc.org/documents/ 33 Ibid., pp.1-2. 22 See UN Women, ‘A Gender justice-and-prison-reform/ 34 K. Burns, ‘Women, Harm Reduction Perspective on the Impact of Drug women-and-imprisonment.pdf. and HIV: Key Findings from Use’ ; Brennan Center for Justice Azerbaijan, Georgia, Russia 9 UNAIDS, ‘Services for People and American Civil Liberties and Ukraine’ (New York: Open Who Inject Drugs’. Union, Caught in the Net. Society Institute, 2009), http:// www.ohchr.org/Documents/ HRBodies/HRCouncil/ DrugProblem/OpenSociety%20 Institute.pdf, pp.39-40 116 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 117

35 Ibid. 44 Harm Reduction International, 58 K. Burns, ‘Women, Harm ‘The Global State of Harm Reduction and HIV’, pp.21-22. 36 UNODC, ‘Substance Abuse Reduction 2012: Towards an Treatment and Care for 59 Ibid., p.23. Integrated Response’, 2012, http:// Women’, pp.18-19. www.ihra.net/files/2012/07/24/ 60 UNODC, ‘Substance Abuse 37 L. C. Mayes et al., ‘The Problem GlobalState2012_Web.pdf. Treatment and Care for of Prenatal Cocaine Exposure. Women’, pp.7-8. 45 Harm Reduction International, A Rush to Judgment.’, Journal of ‘The Global State of Harm 61 R. Jürgens, ‘Effectiveness of the American Medical Association Reduction 2012’. Interventions to Address HIV in 267, no. 3 (1992): 406–8. Prisons’, Evidence in Action Series 46 UNAIDS, ‘The Gap Report’. 38 See, e.g., S. Okie, ‘The Epidemic (Geneva: World Health Organization, That Wasn’t’, New York Times, 26 47 European Monitoring Centre 2007), http://whqlibdoc.who.int/ January 2009 ; H. S. Bada et al., for Drugs and Drug Addiction, publications/2007/9789241596190_ ‘Protective Factors Can Mitigate ‘Annual Report 2006: The State eng.pdf?ua=1. Behavior Problems after Prenatal of the Drugs Problem in Europe’, 62 Pinkham, Myers, and Stoicescu, Cocaine and Other Drug Exposures.’, 2006, http://ar2006.emcdda. ‘Developing Effective Harm Pediatrics 130, no. 6 (2012): 1479–88. europa.eu/en/home-en.html. Reduction Services for 39 M. Hepburn, ‘Substance 48 S. Y. P. Choi, Y. W. Cheung, and Women Who Inject Drugs’. Abuse in Pregnancy’, Current K. Chen, ‘Gender and HIV Risk 63 K. Burns, ‘Women, Harm Obstetrics & Gynaecology 14, no. Behavior among Intravenous Reduction and HIV’, p.8. 6 (December 2004): 419–25 ; V. Drug Users in Sichuan Province, A. Gyarmathy et al., ‘Drug Use China’, Social Science and 64 The Global Coalition on Women and Pregnancy - Challenges for Medicine 62 (2006): 1672–84. and AIDS (GCWA), The International Public Health’, Eurosurveillance Network of Women who Use 49 D. Ndetei, ‘Linkages between 14, no. 9 (5 March 2009): 19142. Drugs (INWUD), and The Women’s Drug Use, Injecting Drug Use and Harm Reduction International 40 WHO, UNODC, and UNAIDS, HIV/AIDS in Kenya’ (University of Network (WHRIN), ‘Women Who Substitution Maintenance Nairobi, 2004), in: UNODC, ‘World Use Drugs, Harm Reduction and Therapy in the Management of Drug Report’ (Vienna, 2005). HIV’ (Geneva, 2011), http://idhdp. Opioid Dependence and HIV/ 50 UNAIDS, ‘The Gap Report’, p.175. com/media/1114/brief-women- AIDS Prevention : WHO/UNODC/ drugs-hiv-harm-final.pdf. UNAIDS Position Paper. (Geneva: 51 Ibid. WHO, 2004) ; R. Abrahams et al., 65 S. Pinkham and K. Malinowska- 52 Roberts, Mathers, and Degenhardt, ‘Open Letter to the Media and Sempruch, ‘Women, Harm Reduction ‘Women Who Inject Drugs’, p.7. Policymakers Regarding Alarmist and HIV’, Reproductive Health and Inaccurate Reporting on 53 Ibid. ; K. Burns, ‘Women, Harm Matters 16, no. 31 (2008): 168–81. Prescription Opioid Use by Pregnant Reduction and HIV’, p. 17. Women’, 11 March 2013, http:// 66 UNAIDS, ‘The Gap Report’. advocatesforpregnantwomen.org/ 54 S. Pinkham and K. Malinowska- issues/pregnancy_and_drug_use_ Sempruch, ‘Women, Harm the_facts/experts_urge_media_ Reduction, and HIV’ (New York: 67 UNODC, ‘Substance Abuse to_end_inaccurate_reporting_ Open Society Foundation, 2007), Treatment and Care for Women’, p.9. on_prescription_opiate_use_ http://www.issuelab.org/resource/ 68 L. Gilbert and D. Nikitin, ‘Project by_pregnant_women.php. women_harm_reduction_and_hiv ; WINGS: Building Community Roberts, Mathers, and Degenhardt, Capacity to Redress Violence 41 A. Roberts, B. Mathers, and ‘Women Who Inject Drugs’. L. Degenhardt, ‘Women Who against Women Who Use Drugs Inject Drugs: A Review of 55 Roberts, Mathers, and Degenhardt, in Kyrgyzstan’ (Presentation at Their Risks, Experiences and ‘Women Who Inject Drugs’, p.57. Funders Concerned About AIDS Needs’, UN Reference Group (FCAA) Summit, Washington, 56 Ibid. ; see also M. H. Ditmore, ‘Where on HIV and Injecting Drug Use D.C., December 2014). Sex Work and Drug Use Overlap: (Sydney, 2010), http://www. Considerations for Advocacy and 69 N. El-Bassel et al., ‘Relationship unodc.org/documents/hiv-aids/ Practice’ (London: Harm Reduction Between Drug Abuse and Intimate Women_who_inject_drugs.pdf. International, 2013), http://www. Partner Violence: A Longitudinal 42 Ibid., p.66. ihra.net/files/2014/08/06/Sex_ Study Among Women Receiving work_report_%C6%924_WEB.pdf. Methadone’, American Journal of 43 Ibid., pp.67-68. Public Health 95, no. 3 (2005): 465–70. 57 Pinkham and Malinowska- Sempruch, ‘Women, Harm Reduction, and HIV’, p.21. 118 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 119

70 R. Manjoo, ‘Multiple and Intersecting Forms of Discrimination and Violence against Women’, Report to UN Human Rights Council, 17th Session, A/HRC/17/26, (2011). 71 Gilbert and Nikitin, ‘Project WINGS’. 72 M. Lohmiller, ‘Colombia Intensifies Search for Urabeños Leader’, InSight Crime, 16 March 2015 ; M. Lohmiller, ‘Las Esclavas Sexuales de Otoniel’, Semana, 14 March 2015, http://www.semana.com/ nacion/multimedia/sexo-con- menores-de-edad-tiene-otoniel- lider-de-los-urabenos/420895-3. 73 I. Grillo, ‘The Mexican Drug Cartels’ Other Business: Sex Trafficking’, Time, 31 July 2013, http:// world.time.com/2013/07/31/ the-mexican-drug-cartels-other- business-sex-trafficking/. 74 See, e.g., UNDP, ‘Perspectives on the Development Dimensions of Drug Control Policy’, p. 4. 75 T. E. Arbuckle, Z. Lin, and L. S. Mery, ‘An Exploratory Analysis of the Effect of Pesticide Exposure on the Risk of Spontaneous Abortion in an Ontario Farm Population.’, Environmental Health Perspectives 109, no. 8 (2001): 851–57 ; S. Richard et al., ‘Differential Effects of Glyphosate and Roundup on Human Placental Cells and Aromatase’, Environmental Health Perspectives 113, no. 6 (2005): 716–20. 76 C, INPUD, WHO, UN Women, ‘Policy Brief: Women Who Inject Drugs and HIV’, p.7. 77 Figure 2: Source: US Bureau of Justice Statistics, ‘Female prisoners under State or Federal jurisdiction,’ Corrections Statistical Analysis Tool, www.bjs.gov, as cited in Drug Policy Alliance, ‘Women and Gender in the Drug Wars’. 118 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 119

Public Health Research in a Time of Changing Drug Policy: Possibilities for Recovery?

Joanne Csete

ome of the ways in which the pursuit of drug prohibition has undermined the SUMMARY health of individuals have been well researched and reported in the academic Sliterature. For example, it is well documented that there is a more pronounced risk of HIV linked to drug injection where aggressive policing of people who use drugs ■ Aggressive policing and incarceration ■ impedes access to HIV services, and where incarceration for minor drug offenses results in higher HIV, hepatitis C and tuberculosis risks. puts large numbers of people at high-risk of HIV, hepatitis C and tuberculosis.

■■ Repressive drug policies have distorted Documentation of the negative health impacts in the pursuit of drug prohibition and limited public health science and may be one small factor behind the shift of drug policy in somewhat less repressive undermined the use of public health directions in recent years. In some cases, fast-growing injection-linked HIV epidemics research and practice as tools to address drug problems. opened a space for public health officials to attend the drug policy round table in

■■ There is a remarkable lack of consensus ways that may not have happened otherwise. in the medical community about the the causes and manifestations of drug The purpose of this paper is to look dependence, and the most effective ways beyond the impact of drug policy on Public health and to address and prevent it. the health of the individual to discuss prevention of drug ■■ The ‘brain disease’ model reinforces a ways in which drug policy and drug dependence and construction of drug use as pathology. policy thinking have distorted and problematic use This pathologising of drug use reinforces limited public health science and prohibitionist drug policy by selling undermining the use of public health aggressive drug supply interdiction and research and practice as tools to address Preventing what? policing as the most effective means of protecting young people’s vulnerable drug problems. Construction of the nature brains from the addiction disease. Public health as a progressive policy of drug dependence ■■ There has been a shift in broader public discipline has long had a focus on equity, Prevention of health problems is the health spheres toward using social especially equity in access to health determinants as a ‘central approach to essence of public health. Public health services. In recent years, energised by understanding disparities in public health efforts to prevent drug dependence and the work of Sir Michael Marmot with outcomes.’ However, this has been lacking other problematic drug use, often through in drug policy because of the ideological the World Health Organization (WHO),1 education programmes aimed at young focus on abstinence. social determinants of health has people, are inevitably shaped by dominant become a more codified and central ■■ Drug education should aim to help young understandings of the etiology and nature people know how to reduce the harms of approach to thinking about disparities of drug dependence. Considering that drug use or how to prevent problematic in public health services and outcomes. drug dependence is not a new problem in use, rather than pursuing the elusive goal Research on the social determinants of preventing all drug use human history, there is a remarkable lack of health outcomes is very pertinent of consensus in the medical community ■■ There is a need for greater scepticism to drug problems and the social and about the causes and manifestations of drug about the supposed effectiveness of policy responses to these. It will be drug courts, given lack of rigorous dependence and the most effective ways to argued here, however, that some period evaluation and many concerns about address and prevent it. A 2015 exchange of recovery and rehabilitation – to implementation. amongst prominent experts in the field in a borrow terms from addiction medicine ■■ Ultimately, UN agencies and treaty bodies, special issue of Lancet Psychiatry illustrated – is likely to be in order to overcome ‘which should promote evidence-based some of the continuing debates on the the misdirection and undermining of best practices in research and programs, physiological and psychological basis for have too often been silent or complicit public health research that is the result, assessing the presence and degree of drug with questionable research (and program) at least in part, of ideologically driven dependence in an individual.2 In particular, directions.’ drug policies. 120 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 121

Prevention programmes: impacts on initiation of drug use.14 Some extending the logic of the studies, in fact, found that the programme pathology of drug use raised the curiosity of children about Treatment of addiction drugs and may have motivated them to can run the gamut from It is a virtually universal public policy and experiment with drugs or that exaggerated ‘ messages about the dangers of drugs, quackery to practices that public health goal to prevent initiation include beating, unjustified of use of psychoactive drugs, especially compared to the observed experience of involuntary detention, amongst young people. Drug dependence children, undermined the credibility of humiliation and torture. as ‘brain disease’ has helped to energise the programme.15 classroom education programmes and mass Adoption of the policy that federal funds media campaigns that depict all drug use as would support only ‘evidence-based’ ’ deleterious to cognition and brain function. prevention programmes for young people In the US, the story of drug education should have generated a body of excellent programmes meant to prevent initiation of evaluations. But many public health experts drug use amongst young people is one of have criticised the quality of the evaluations this exchange centered on the question of clinging to the non-science that envelops undertaken in response to this policy and the scientific justification for understanding the pursuit of a ‘drug-free’ world to the thus to the funding of programmes that were drug dependence as a ‘brain disease.’ tune of billions of taxpayer dollars. It is also not rigorously ‘evidence-based.’16 Amongst a tale of misdirection of drug education the criticisms were the following: The question is pertinent partly because the and prevention programmes and related ‘brain disease’ model is so heavily espoused research from which recovery is difficult. by officials of the US government and ■■ Some of the programmes accepted especially the leadership of the US National The academic literature on drug prevention programmes is dominated by evaluations as evidence-based were evaluated Institute on Drug Abuse (NIDA), which is only once or very few times, from the US, in part the result of a 2002 the dominant funder of drug-related health alternatively positive results were 3 federal law requiring drug prevention research in the world. Since the 1990s ‘cherry-picked’ and negative NIDA, an agency of the US National Institutes programmes to be demonstrably ‘evidence- results were not presented in the for Health, has strongly promoted this based’ as a condition of receiving financial evaluations or with no peer review; 9 model, citing neuroimaging data indicating support from the government. This policy resulted from the government’s ■■ Some programmes had inherent changes in brain structure and function conflicts of interest where, for heavy investment in a school-based drug linked to persistent drug use, as well as more example, evaluations were 4 prevention programme called DARE (Drug recent evidence from genetic research. In conducted by the creators of the principle, the idea that people’s drug use Abuse Resistance Education) that turned out programme, including cases where is driven by a clinical brain disease should to be anything but evidence-based. the programme creators stood reduce the tendency to stigmatise and DARE was developed in 1983 at the initiative to profit financially from positive evaluations; and, demonise ‘addicts’ as deviant and morally of the Los Angeles Police Department to be weak. In addition, as NIDA has emphasised taught in schools by police officers to pre- ■■ Perhaps most importantly, in public statements, the model should lead teen students.10 Its abstinence-oriented programmes were chosen more to breakthroughs in effective treatment and curriculum was centered on teaching because they accorded with prevention of drug dependence. children to ‘say no’ to drugs with lessons the abstinence-only orientation of on the harms of drugs, the model of ‘good US policy than because of The extensive scientific critiques of this their effectiveness. model5 are beyond the scope of this paper; students’ who refuse drugs and assertiveness in brief, neither the stigma reduction nor training for sticking to ‘saying no’ in the face Top-rated academic journals such as the many new therapies promised by the of various pressures. It had a strong focus Addiction have hosted frank discussions on model have materialised. 6 The ‘brain disease’ on marijuana and also included lessons on how to deal with a US-centered prevention model reinforces a construction of drug the harms of alcohol and tobacco use. DARE literature plagued by ‘pseudoscience’ and 17 use as pathology. Courtwright, amongst was generally very well received by parents, flawed, ideologically driven research. This others, argues that this pathologising of politicians and the public, and by the late is all in addition to the obvious criticism that drug use is consistent with and explicitly 1990s, the programme was implemented in drug education should aim to help young reinforces prohibitionist drug policy, through about 75% of public school districts in the people know how to reduce the harms of 11 facilitating selling aggressive drug supply US It was backed by hundreds of millions drug use or how to prevent problematic interdiction and policing to the public as the of federal dollars and was imitated in other use, rather than pursuing the elusive goal 12 18 most effective means of protecting young countries. of preventing all drug use. As Skager people’s vulnerable brains from the addiction noted, the complete abstinence goal may be A 1994 evaluation of DARE by the US 7 unrealistic since young people are likely to disease. Satel and Lilienfeld note that the US Department of Justice found no discernable try drugs at some point, but ‘debate about Congress has readily latched on to the ‘brain effect on students’ decision-making on whether this is a realistic goal is off the table’ disease’ idea, a help in generating funding marijuana or alcohol and only a modest in the political environment of the US,19 for drug control and research. They conclude short-term effect on initiation of tobacco and research on that question is equally off that in this sense the idea has been a tactical use.13 Over time, more than 30 published 8 the table. victory but a scientific regression. evaluations of DARE found similarly null 120 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 121

UN bodies should help to counter the Drug courts offer court-supervised treatment influence of politics with guidance based Drug courts as a response of drug dependence as an alternative to on the best science from around the world. to problematic drug use incarceration to persons accused of certain In the case of drug prevention, the UNODC non-violent drug infractions where drug came relatively late onto the scene with dependence may be at the root of the offence. international drug prevention guidelines While there may have been quantum leaps Drug courts have become prominent in published in 2013.20 The guidelines in the neuro-science of addiction, in recent international drug policy debates because the reflect some consideration of DARE-type years, as van der Stal notes, ‘evidence-based US, the Organization of American States (OAS) experiences, suggesting, amongst other guidelines [for treatment] derived from the and UNODC portray them as an important things, that ‘fear arousal’ about the dangers results of clinical trials are still very limited.’22 option for diverting some drug offenders from of drugs is unlikely to be effective as a central He concludes, like some critics of the ‘brain custodial sentences without decriminalisation strategy of prevention and that having the disease’ model, that addiction medicine of those offenses.25 Drug courts are portrayed police deliver drug education may not be may be too focused on biological aspects of by US officials as key to approaching drug the best idea. UNODC stresses that many dependence and too little on social, cultural dependence as a public health problem ‘powerful risk factors’ for initiating drug and juridical factors.23 Moreover, in his view, rather than as a crime. use – biological processes, mental health practices reflecting the best evidence are About 3,000 drug courts are found in the disorders, family neglect and abuse, poor not frequently implemented in most places. US, 26 and they exist in nine Latin American attachment to school and community, for In the worst cases, as noted by human rights countries, 27 at least four European countries, example – are ‘largely out of the control of the observers, treatment of addiction can run in addition to Canada, Australia and New individual’ so that no amount of preaching the gamut from quackery to practices that Zealand. 28 In over 90% of the drug courts about behaviour change without addressing include beating, unjustified involuntary in the US, accused persons are required to risk factors is likely to be successful to detention, humiliation and torture.24 plead guilty to the charge before them as prevent drug use.21 Thus, formative research a condition of participation in the court- to understand the reality of young people’s supervised treatment,29 raising obvious due lives and their motivations and perceptions process questions as well as a barrier to the about drugs is needed to inform the design Drug treatment courts right to health services. of prevention programmes. Public health An approach to treatment of drug dependence experts would ideally be situated to conduct The US government subsidises the that has political support in many countries such research, but funding for research to operations of many county-level drug courts is the drug treatment court (or just ‘drug inform reality-based rather than abstinence- and has also funded numerous evaluations court’). This approach was pioneered in the based programmes is scarce. of drug courts, usually focusing on the US in the late 1980s as incarcerations of minor courts’ impact on recidivism. The largest was drug offenders were increasing dramatically. a 2011 evaluation covering 23 courts in six

Academic researchers have identified fundamental problems with the claims of the success of the drug courts, including the following:

■■ As suggested by the CRS review, drug courts have ■■ In the US, many drug courts simply forbid ‘cherry-picked’ the participants most likely to medication-assisted therapy (MAT) using methadone complete treatment programmes successfully so or buprenorphine for opioid dependence as an they can show good results, and qualify for federal option for court-supervised treatment, often support.33 One study found that about one third of because of a judge’s belief that all treatment the ‘patients’ in one drug court jurisdiction did not must be abstinence-based.37 As one treatment meet clinical criteria for drug dependence.34 provider noted, this prejudice essentially forces people to go to the streets for heroin or diverted ■■ The courts in some jurisdictions punish people who prescription opioids at a time when use of both is ‘fail’ treatment by putting them in jail or sending on the rise in the US38 A number of cases have been them back to the normal adversarial court with reported of deaths from overdose amongst people a guilty plea on their record, which may mean denied MAT by drug courts.39 In 2015, US federal a longer sentence than if they had been able to authorities said that they would not allocate funds argue their case with an attorney. A 2013 meta- to drug courts that refuse to offer MAT at least with analysis of 19 studies in the US showed that long buprenorphine.40 It remains to be seen whether this sentences imposed on people who ‘failed’ treatment leverage will be effective. offset the reduction in prison time represented by the ‘successful’ participants.35 Noteworthy is that the WHO underscores that treatment of drug dependence often needs to be offered more than once; relapse is a common outcome.36 122 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 123

are important in the etiology of drug sizes;49 others have been criticised for More than 30 dependence, it is striking that there is not making conclusions about drug treatment published evaluations of DARE a larger and more robust body of research adherence when the studies were not ‘ found similarly null impacts to guide action on addressing social factors designed only to evaluate outcomes related 50 on initiation of drug use. Some in drug treatment activities. WHO has to homelessness: and some of the research studies, in fact, found that the offered guidance for psychological and may have been compromised by the lack of programme raised the curiosity social support only with respect to the best availability of readily accessible treatment of children about drugs and researched drug dependence treatment options, even if stable housing contributed 51 may have motivated them to – that is, MAT for opioid dependence – to the readiness to seek treatment. noting that there is some evidence that experiment with drugs or that Adequately researching housing assistance ‘assistance with social needs such as exaggerated messages about the and other possible social support services to housing, employment, education welfare dangers of drugs compared to the accompany drug treatment is likely to require and legal problems’ are useful adjuncts to observed experience of children considerable funding for independent, treatment programmes, but also notes that undermined the credibility multi-sectoral, large-sample, multi-year the research base for this recommendation of the programme. studies. It also requires an openness to what is thin.41 is essentially a harm reduction approach – The work of Rhodes on conceptualising not insisting on proof of abstinence or proof sites, which reported significantly’ lower self- a multi-level ‘risk environment’ for drug of adherence to treatment programmes, in reported crime rates in the drug court group use42 is a breakthrough that should guide the US in any case, is a break from both the (24-month follow-up) vs. a comparison group the kind of research WHO calls for in its abstinence ideal that underpins drug policy and lower official rearrest rates, though the guidelines. Building on Rhodes’ work, and from the spirit of long-standing laws 30 latter was not statistically significant. Many public health researchers have begun to pull and policies that deny social benefits to smaller studies by sub-national authorities together elements of a social epidemiology people who use drugs or who are convicted also reported some degree of reduction of drug use and drug dependence.43 This of even minor drug offenses.52 Although the in recidivism. conceptual work explicitly highlights the Department of Veteran Affairs is funding a In 2011, the non-partisan US Government limitations of over-reliance on reductionist major study of ‘housing first’ that will include Accountability Office (GAO) reviewed 260 drug medical approaches to drug dependence. looking at the outcomes of drug treatment, court evaluations, including the government’s Some studies have demonstrated statistical it is unlikely that this kind of research will be multi-site evaluation, in its oversight of drug relationships between social or community- encouraged by NIDA, the government’s drug court spending. Of the 260 studies, GAO level factors and drug use and dependence research funding body. found that less than 20% used sound social outcomes,44 but, as suggested by van der science principles.31 A particular deficiency Slat, these do not seem to have added up was the lack of appropriate comparison to practical frameworks to guide health groups. The Congressional Research Service and social services as part of responses to (CRS), a non-partisan research body of the drug dependence. Distorting and dismissing public health: reductionism Library of Congress, in its review of drug A body of evidence that begins to inform and eschewing court evaluations noted that a much smaller practical interventions has to do with number of people were coming through drug so-called ‘housing first’ approaches to harm reduction courts than the number who could benefit drug dependence and mental illness in in theory, suggesting some kind of unstated North America. While many government Harm reduction is a central idea of much selection process. 32 programmes in the past have recognised that of the pursuit of public health as it relates A drug treatment court model could homelessness or unstable housing is often to risky or potentially risky behaviours and probably be devised that would be worthy part of the risk environment of drug use, exposures. For example, driving motor of being called a public health intervention. proof of abstinence from drug use has often vehicles is a potentially lethal undertaking, Public health research could have helped to been required as a condition of receiving but rather than banning it, measures are 45 illuminate good practices and would have public housing assistance. The premise of instituted to reduce harm. The link between been beneficial before the rapid expansion ‘housing first’ is that stable housing may be a obesity and sugary carbonated drinks and of these courts around the world. But, as with pre-condition to enabling drug-dependent the particular harms of this link in low-income prevention programmes in the US, there was persons to engage with treatment populations has spawned a body of public no major effort to ensure that independent programmes and may thus improve health health research on possible harm reduction public health research or expertise was outcomes and reduce health service costs.46 measures such as taxation, limiting portion informing decision-making. ‘Housing first’ received a major boost in 2012 sizes at the point of sale and disallowing when the US Department of Veteran Affairs soda from food assistance vouchers.53 adopted it in responding to homelessness amongst military veterans and initiated a But health research on harm reduction related 47 to drug production, sale, consumption, Social services as part of three-year study of its impact. prevention and care has been limited with responding to drug dependence The literature on housing first approaches the exception of research on MAT for opioid is thin and fraught with fundamental dependence and on HIV and drug injection, While there is ready recognition, even from disagreements about methods. The paucity though at times both of those have also been proponents of the ‘brain disease’ model, 48 of randomised designs is one criticism; caught up in drug politics. It is not correct that both biological and social factors some studies have had very small sample to lay barriers to harm reduction-oriented 122 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 123

research only at the feet of US policies, but from these statements that NIDA will be It is a badge of honour – though very troubling the strident anti-harm reduction bent of US keen to respond to long-standing calls for – for the UBC research group that they have drug policy and drug-related health research more funding – and more access to research been attacked in many ways, including the funding is influential to some degree and supplies of cannabis – to study, for example, impugning of their professional credentials, not only in the US. The US objection to medical uses of cannabis,59 or the interesting by proponents of drug prohibition. After drug-related harm reduction in arenas such research suggesting that access to medical trying and failing to force a retraction of a as school-based prevention programmes cannabis may be associated with less use of Lancet article on supervised injection by and allowing drug court prejudices to prescription opiates.60 As Pardo notes, the these researchers, a group of organisations favor abstinence-based treatment in current policy environment begs for research espousing a ‘drug-free’ society created an defiance of clinical indication is not always to elucidate lessons of decriminalisation online publication with the trappings of clearly explained by policy-makers. Gil and partial decriminalisation experiences of an academic journal of which the raison Kerlikowske, the US ‘drug czar’ from 2009 to Europe with respect to both cannabis and d’etre seemed to be to discredit the UBC 2014, said that the term ‘harm reduction’ is other drugs.61 But, he concludes, 'so far, with a researchers.65 These organisations went on not used by the government because it is few exceptions, the literature comparing the to lodge a formal complaint to UBC alleging associated with the legalisation of drugs.54 details of actual and theoretical regulatory academic misconduct by some of these models is scarce.'62 As jurisdictions seek to researchers, charges that were investigated It is also not correct to attribute all trends in weigh health measures, taxation and pricing, and dismissed.66 health-related drug policy research to the regulation of commercialisation and many At this time of shifting drug policy debates priorities of NIDA, but, again, those priorities other factors in this changing environment, and, one hopes, a continued shift to less undoubtedly have had an influence. NIDA sustained funding for policy research, repressive drug policy, public health research has funded some research, including on including in the health sector, would be should ideally be informing new directions MAT and more recently on effective pain welcome. in drug control policy and programmes. As management, which has helped move some noted above, in an ideal world, building on drug-related health programmes in a useful strides made in research methods to study direction. But its public statements about Drug courts social determinants of health, public health priorities for health research at this time have become prominent in research would inform a new generation of of shifting drug policy debates generally ‘ international drug policy debates prevention activities based on the reality reflect a limited and medicalised view of because the US, the Organization of risk environments for problematic drug the field. NIDA’s priorities, as stated in the of American States (OAS) and use. It would explore ways in which young budget request to the US Congress for fiscal UNODC portray them as an people can be armed with information to year 2015, highlighted the agency’s pride important option for diverting protect themselves from the harms of drug in being at the center of the 'explosion in some drug offenders from use without lies or exaggerations. There genetic knowledge,’ 'the advent of precise custodial sentences without could be rigorous studies of varied modes of technologies to probe neuronal circuits' decriminalisation of community-based care and socioeconomic and other knowledge 'that can be used to those offenses. support for people who use drugs and are reduce drug use.’55 Similarly, for FY 2016, accused of minor drug offences as policies NIDA proposed spending about half its evolve away from incarceration in these cases. billion-dollar budget on neurological and ’ genetic/epigenetic foundations of drug But it may take the courage of the UBC 'abuse' that 'will revolutionise our ability Conclusions researchers and access to large amounts to mitigate or even reverse the deleterious of ideologically untied funding for truly

effects of addiction.’56 To its credit, NIDA independent policy-relevant investigations A remarkable body of drug-related health is funding work on the long neglected to get drug-related public health research research has been generated around policy area of medication-assisted therapies for out of its hunkered-down state. Drug and programme change in the Canadian city stimulant dependence. It also proposes to policy researchers in public health, if they of Vancouver, largely by researchers at the look at the effect of programmes authorised are not fending off ideologically motivated University of British Columbia (UBC). This by the 2010 Affordable Care Act (known attacks, have found themselves struggling research includes the most important body informally as ‘Obamacare’), on access to drug for funding to investigate hugely expensive of peer-reviewed reports about supervised dependence treatment, on which there is very government programmes that are injection sites in the world, as well as little research.57 supported by large, shoddy and blatantly longitudinal studies of housing, employment, politicised bodies of research. UN agencies, NIDA’s priorities for FY2015 and FY2016 access to psychological services and which should promote evidence-based related to changing state-level marijuana other social determinants of patterns of best practices in research and programmes, policy in the US include longitudinal studies problematic drug use.63 Some of this work have too often been silent or complicit with to follow the impact of marijuana use on was funded by NIDA, particularly in the early questionable research (and programme) the 'developing brain' of adolescents and years of the HIV epidemic in Vancouver. This directions. New directions in drug policy intensification of information programmes body of public health research has figured thinking, whether or not they are reflected on the harms of marijuana to counter the prominently in Canadian (and to some in upcoming UN debates in 2016, should 'dangerous and growing misperception that degree international) drug policy discussions mean a new platform, new openness, and marijuana use is harmless.’58 Though the and importantly informed judicial decisions new funding for cutting-edge drug policy- states that have legalised cannabis may fund that protected the supervised injection relevant public health research not designed policy-relevant research with their newly site from closure by the Conservative-led to serve a prohibitionist agenda. generated tax revenues, it seems unlikely government.64 124 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 125

With respect to metrics, a first step might be to engage in some harm reduction. Overall, drug policy may not be driven by the rise and fall Metrics in arrest figures, but if at a human resource management level the performance of police is rigorously judged by the number of drug

arrests, that practice should be stopped, even if larger drug policy Some of the published discussions on metrics for a new drug directions will take time to change. There is good evidence from a policy66 seem a bit overly optimistic about the possibilities of getting number of countries that arrest quotas or targets for the individual governments to turn toward a new set of indicators for judging police officer, especially when linked to salaries or bonuses, will result drug policy. There is no question that governments have too often in an unduly large number of arrests of low-level offenders: as those represented their drug policy successes by indicators such as arrests, individuals are often the easiest to catch. Resolving bad practices tonnes seized and hectares of drug crops eradicated, but it may be such as this should not have to wait for a major upheaval of the too much to presume that numerical targets with respect to those philosophy of metrics on which drug policy is based. indicators are what drives drug policy decision-making. If that were the case, governments would have long ago abandoned their efforts Another area in which both governments and international agencies and gone back to the drawing board because very few could have and experts can do better with regard to metrics is so-called shown sustained progress through these measures. It seems unlikely alternative development or alternative livelihood programmes that these governments will be easily inspired to adopt indicators of that UNODC and many international donors have supported. public health and welfare, for example, to ‘drive’ the fundamental Development programmes that are meant to help people cultivating directions of their drug policies. Indeed, the value of some of the drug crops to find other sources of livelihood have been notoriously preferred indicators in policing-heavy drug policies is that the free of evaluation in the way that other development programmes numbers are easy to cook. The value of ‘metrics’ is probably in many have come to be judged. There have been very few independent cases more based on projecting a certain image than on any rigorous evaluations of UNODC-supported alternative development reflection of reality. programmes, for example.68 The impact of these programmes on the health and well-being of poor rural households has not been Muggah and colleagues report that Colombia, for example, is evaluated with anything like the standards that have come to be interested in new metrics as it is currently rethinking their drug routinely brought to bear in most development programmes. It policies.67 Colombia, with high-level political leadership and in the would not require a major overhauling of drug policy to have an aftermath of a war of insurgency with enormous implications for approach to alternative development programmes for drug crop drug policy, has undergone more reflection on national drug policy producers that embodies some of the standards of participatory than most countries. It will be interesting to see how much of development and monitoring and evaluation built in from the such reflection was inspired by concern about whether or not the beginning that have become more common in socioeconomic government had employed the wrong indicators to measure the development work. impact of policy. .

124 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 125

Notes

1 M. Marmot, ‘Social Determinants 13 C. L. Ringwalt et al., ‘Past and Future 22 J. van der Stel, ‘Precision in Addiction of Health Inequalities’, Lancet Directions of the DARE® Program: An Care: Does It Make a Difference?’, 365 (2005): 1099–1104. Evaluation Review’, Research in Brief Yale Journal of Biology and Medicine Series (Washington, D.C.: National 88 (2015): 415–22, p.418. 2 W. Hall, A. Carter, and C. Forlini, ‘The Institute of Justice, September 1994). Brain Disease Model of Addiction: 23 Ibid., p.420. Is It Supported by the Evidence and 14 Center for Court Innovation and US 24 Human Rights Watch, ‘Torture in the Has It Delivered on Its Promises?’, Bureau of Justice Assistance, ‘Lessons Name of Treatment: Human Rights Lancet Psychiatry 2 (2015): 105–10. from the Battle over DARE: The Abuses in Vietnam, China, Cambodia Complicated Relationship between 3 A US government estimate in 2013 and Lao PDR’ (New York, NY, 2012) Research and Practice’ (New York, suggested that NIDA funds 85% ; Center for Human Rights and NY, 2009) ; see also R. R. Clayton, A. of all drug-related health research Humanitarian Law, ‘Torture in Health M. Cattarello, and B. M. Johnstone, in the world, though the basis of Care Settings: Reflection on the ‘The Effectiveness of Drug Abuse this estimate is not clear. See US Special Rapporteur on Torture’s 2013 Resistance Education (Project Department of Health and Human Report’ (Washington, D.C., 2014). DARE): 5-Year Follow-up Results’, Services, Office of the Inspector Preventive Medicine 5, no. 3 (1996): 25 See, e.g., Organization of American General, ‘Independent Attestation 307–18 ; S. L. West and K. K. O’Neal, States, ‘Drug Treatment Courts in Review: NIDA Assertions Concerning ‘Project DARE Outcome Effectiveness the Americas’, 2015, http://cicad. Drug Control Accounting for FY2012’ Revisited’, American Journal of Public oas.org/Main/Template.asp?File=/ (Washington, D.C., 18 January Health 94, no. 6 (2004): 1027–29. fortalecimiento_institucional/ 2013), http://oig.hhs.gov/oas/ dtca/main_eng.asp. reports/region3/31300353.pdf. 15 Ibid. 26 National Drug Court Resource 4 A. Leshner, ‘Addiction Is a Brain 16 Gandhi et al., ‘The Devil Is in Center, ‘How Many Drugs Courts Disease, and It Matters’, Science the Details’ ; D. D. Hallfors, M. Are There?’, 30 June 2014, http:// 278, no. 5335 (1997): 45–47 ; N. Pankrantz, and S. Hartman, ‘Does www.ndcrc.org/content/how- D. Volkow and G. Koob, ‘Brain Federal Policy Support the Use of many-drug-courts-are-there. Disease Model of Addiction: Why Scientific Evidence in School-Based Is It so Controversial?’, Lancet Prevention Programs?’, Prevention 27 Organization of American States, Psychiatry 2, no. 8 (2015): 677–79. Science 8 (2007): 75–81 ; R. Skager, ‘Drug Treatment Courts in the ‘Replacing Ineffective Early Alcohol/ Americas’. 5 Hall, Carter, and Forlini, ‘The Brain drug Education in the United States Disease Model of Addiction’ with Age-Appropriate Adolescent 28 UNODC, ‘Drug Treatment Courts Work (brochure)’ (Vienna, 2005), 6 J. Trujols, ‘The Brain Disease Programmes and Assistance to http://www.unodc.org/pdf/ Model of Addiction: Challenging Problematic Users’, Drug and drug_treatment_courts_flyer.pdf. or Reinforcing Stigma?’, Lancet Alcohol Review 26 (2007): 577–84. Psychiatry 2, no. 4 (2015): 292. 17 H. Holder, ‘Prevention Programs 29 C. Franco, ‘Drug Courts: Background, Effectiveness and Policy Issues 7 D. T. Courtwright, ‘The NIDA in the 21st Century: What We Do for Congress’ (Washington, D.C.: Brain Disease Paradigm: History, Not Discuss in Public’, Addiction Congressional Research Service, Resistance and Spinoffs’, 105 (2009): 578–81 ; D. M. Gorman, October 2010), http://fas.org/ BioSocieties 5 (2010): 137–47. ‘Understanding Prevention Research as a Form of Pseudoscience’, sgp/crs/misc/R41448.pdf. 8 S. Satel and S. O. Lilienfeld, Addiction 105 (2009): 582–83 ; S. 30 S. B. Rossman et al., ‘The Multi-Site Brainwashed: The Seductive Appeal Andréasson, ‘Premature Adoption Adult Drug Court Evaluation: The of Mindless Neuroscience (New York, and Dissemination of Prevention Impact of Drug Courts’ (Washington, NY: Basic Books, 2013). Programs’, Addiction 105 (2009): D.C.: The Urban Institute, 2011), 9 A. G. Gandhi et al., ‘The Devil Is in the 583–84. See also, for example, https://www.ncjrs.gov/pdffiles1/ Details: Examining the Evidence for Hallfors, Pankrantz, and Hartman, nij/grants/237112.pdf. 'proven' School-Based Drug Abuse ‘Does Federal Policy Support the Use 31 US Government Accountability Prevention Programs’, Evaluation of Scientific Evidence in School- Office, ‘Adult Drug Courts: Studies Review 31, no. 1 (2007): 43–74. Based Prevention Programs?’ Show Courts Reduce Recidivism, 10 C. H. Weiss et al., ‘The Fairy 18 R. Room, ‘Preventing Youthful but DOJ Could Enhance Future Godmother – and Her Warts: Making Substance Use and Harm – Performance Measure Revision the Dream of Evidence-Based Policy between Effectiveness and Efforts’, GAO-12-53 (Washington, Come True’, American Journal of Political Wishfulness’, Substance D.C., December 2011), http://www. Evaluation 29, no. 1 (2008): 29–47. Use and Misuse 47 (2012): 936–43 gao.gov/assets/590/586793.pdf. ; see also R. Midford, ‘Is This the 11 A. Nordrum, ‘The New DARE Path to Effective Prevention?’, 32 Franco, ‘Drug Courts’. Program – This One Works’ (Scientific Addiction 103 (2008): 1169–70. 33 E. Sevigny, H. Pollack, and P. H. American, 10 September 2014), Reuter, ‘Can Drug Courts Help to http://www.scientificamerican. 19 Skager, ‘Replacing Ineffective Reduce Prison and Jail Populations?’, com/article/the-new-d-a-r-e- Early Alcohol/drug Education The Annals of the American program-this-one-works/. in the United States with Age-Appropriate Adolescent Academy of Political and Social 12 Ibid. ; K. Zernike, ‘Anti-Drug Program Programmes and Assistance Sciences 647 (2013): 190–210. Says It Will Adopt a New Strategy’, to Problematic Users’, p.581. 34 D. DeMatteo et al., ‘Outcome New York Times, 15 February Trajectories in Drug Court: Do All 2001, http://www.nytimes. 20 UNODC, ‘International Standards Participants Have Drug Problems?’, com/2001/02/15/us/antidrug- on Drug Use Prevention’ Criminal Justice and Behavior program-says-it-will-adopt-a-new- (Vienna: UNODC, 2013). 36, no. 4 (2009): 354–68. strategy.html?pagewanted=all. 21 Ibid., p.2. 126 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 127

35 E. L. Sevigny, B. K. Fuleihan, and F. 44 Galea, Nandi, and Vlahov, 56 United States Department of V. Ferdik, ‘Do Drug Courts Reduce ‘The Social Epidemiology of Health and Human Services and the Use of Incarceration?: A Substance Use’. National Institutes of Health, Meta-Analysis’, Journal of Criminal ‘FY2016 Budget and Performance 45 S. G. Kertesz et al., ‘Housing Justice 44, no. 5 (2013): 473–80. Summary’ (Washington, D.C., 2015). First for Homeless Persons 36 UNODC, ‘Principles of Drug with Active Addiction: Are We 57 M. M. Ali, J. L. Teich, and R. Mutter, Dependence Treatment (Discussion Overreaching’, Milbank Quarterly ‘The Role of Perceived Need and Paper)’ (Vienna, 2008), http:// 72, no. 2 (2009): 495–534. Health Insurance in Substance www.unodc.org/documents/ Use Treatment: Implications 46 S. G. Kertesz and S. J. Weiner, drug-treatment/UNODC-WHO- for the Affordable Care Act’, ‘Housing the Chronically Principles-ofDrug-Dependence- Journal of Substance Abuse Homeless: High Hopes, Treatment-March08.pdf. Treatment 54 (2015): 14–20. Complex Realities’, Journal of the 37 H. Matusow et al., ‘Medication American Medical Association 58 Volkow, ‘Fiscal Year Assisted Treatment in US Drug 301, no. 17 (2009): 1822–24. 2015 Budget Request’. Courts: Results from a Nationwide 47 US Department of Veteran Affairs, 59 D. Cressey, ‘The Cannabis Survey of Availability, Barriers and ‘Housing First (media Statement)’, Experiment’, Nature, no. 524 (2015): Attitudes’, Journal of Substance October 2012, http://www. 280–83 ; H. Shen, ‘Federal Red Abuse Treatment 44, no. 5 (2013): endveteranhomelessness.org/ Tape Ties up Marijuana Research’, 473–480 ; and J. Csete and H. programs/housing-first-pilot. Nature, no. 507 (2014): 407–8. Catania, ‘Methadone Treatment Providers’ Views of Drug Court 48 Kertesz and Weiner, ‘Housing 60 M. A. Bachhuber et al., ‘Medical Policy and Practice: A Case Study the Chronically Homeless’. Cannabis Laws and Opioid Overdose of New York State’, Harm Reduction Mortality in the United States, 49 J. Westermeyer and K. Lee, Journal 10, no. 35 (2013), http:// 1999–2010’, Journal of the American ‘Residential Placement for Veterans www.harmreductionjournal. Medical Association: Internal Medicine with Addiction: American Society com/content/10/1/35. 174 (2014): 1668–73 ; P. Lucas of Addiction Medicine Criteria vs. et al., ‘Substituting Cannabis for 38 Csete and Catania, ‘Methadone a Veterans Homeless Program’, Prescription Drugs, Alcohol and Treatment Providers’ Journal of Nervous and Mental Other Substances among Medical Views of Drug Court Policy Disease 201 (2013): 567–71. Cannabis Patients: The Impact of and Practice’. 50 B. Henwood, ‘Commentary on Contextual Factors’, Drug and Alcohol 39 J. Cherkis, ‘Dying to Be Free --There Somers et Al. (2015): Housing Review, 2015, doi:10.1111/dar.12323. Is a Treatment for Heroin Addiction First — a Platform for Recovery?’, 61 B. Pardo, ‘Cannabis Policy Reforms That Actually Works: Why Aren’t Addiction 110 (2015): 1615–16. in the Americas: A Comparative We Using It?’, Huffington Post, 28 Analysis of Colorado, Washington, January 2015, http://projects. 51 J. M. Somers, A. Moniruzzaman, and Uruguay’, International Journal huffingtonpost.com/dying-to- and A. Palepu, ‘Changes in Daily of Drug Policy 25 (2014): 727–35. be-free-heroin-treatment. Substance Use among People Experiencing Homelessness and 62 Pardo, ‘Cannabis Policy Reforms 40 J. Davies, ‘White House Takes Mental Illness: 24-Month Outcomes in the Americas’, p.734. Important First Step toward Following Randomization to Fixing Broken Drug Court System’, Housing First or Usual Care’, 63 See, e.g., E. Wood et al., ‘Summary Drug Policy Alliance, 6 February Addiction 110 (2015): 1605–14. of Findings from the Evaluation 2015, http://www.drugpolicy. of a Pilot Medically Supervised 52 M. Mauer and V. McCalmont, org/blog/white-house-takes- Safer Injecting Facility’, Canadian ‘A Lifetime of Punishment: The importantfirst-step-toward-fixing- Medical Association Journal Impact of the Felony Drug Ban on broken-drug-court-system. 175 (2006): 1399–1404. Welfare Benefits’, DC Sentencing 41 WHO, ‘Guidelines for the Project (Washington, D.C., 2013), 64 J. Geddes, ‘RCMP and the Truth about Psychosocially Assisted http://sentencingproject.org/doc/ Safe Injection Sites’, MacLeans, 20 Pharmacological Treatment of publications/cc_A%20Lifetime%20 August 2010, http://www.macleans. Opioid Dependence’ (Geneva, 2009). of%20Punishment.pdf. ca/news/canada/injecting-truth/. 42 T. Rhodes, ‘The 'risk Environment': 53 J. Falbe et al., ‘Higher Retail Prices 65 Geddes, ‘RCMP and the Truth A Framework for Understanding of Sugar-Sweetened Beverages about Safe Injection Sites’. and Reducing Drug-Related Harm’, 3 Months After Implementation 66 University of British Columbia, International Journal of Drug Policy of an Excise Tax in Berkeley, ‘Allegations against UBC 13, no. 2 (2002): 85–94 ; T. Rhodes, California’, American Journal of Public Researchers’ Study on Insite ‘Risk Environments and Drug Harms: Health 105 (2015): 2194–2201. A Social Science for Harm Reduction 'without Merit:' Independent Approach’, International Journal of 54 G. Kerlikowske, ‘Briefing on Release Reviewer’, 18 October 2011, Drug Policy 20, no. 3 (2009): 193–201. of National Drug Control Strategy’, http://news.ubc.ca/2011/10/18/ Washington Foreign Press Center, allegations-against-ubc-researchers- 43 See, e.g., S. Galea, A. Nandi, and D. 11 May 2010, http://iipdigital. study-on-insite-without-merit- Vlahov, ‘The Social Epidemiology usembassy.gov/st/english/texttran independent-reviewer/. of Substance Use’, Epidemiologic s/2010/05/20100512162528xjsnom 67 See, e.g., R. Muggah, K. Aguirre, Reviews 26, no. 1 (2004): 36–52 mis0.8599774.html#axzz3tLsPmjPE. ; S. Galea, C. Hall, and G. A. I. S. de Carvalho, ‘Measurement Kaplan, ‘Social Epidemiology 55 N. D. Volkow, ‘Fiscal Year 2015 matters: designating new metrics and Complex System Dynamic Budget Request (testimony to for a drug policy that works’ (Rio de Modelling as Applied to Health US Congress)’, 12 August 2014, Janeiro: Institute Igarape, 2015). http://www.drugabuse.gov/ Behaviour and Drug Use Research’, 68 J. Buxton, ‘Drugs and development: about-nida/legislative-activities/ International Journal of Drug the great disconnect’, Global Drug testimony-to-congress/2014/ Policy 20, no. 3 (2009): 209–16. Policy Observatory Policy Report, fiscal-year-2015-budget-request. no. 2 (Swansea, UK, 2015). 126 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 127

(Mis)understanding the Intersection Between Development Policies and Data Collection: Case Study, Afghanistan1

David Mansfield

evelopment organisations are often ill at ease when engaging with the challenges SUMMARY of illicit drug production in the global south. Even in countries like Afghanistan, DColombia and Burma where the illicit drugs economy dominates large parts of the rural landscape and has a significant impact on both the political economy and macro- ■■ Development organisations are often economic indicators, development donors have been reluctant to integrate an analysis ill at ease when engaging with the of the causes and effects of illicit drug production into their programmes and country challenges of illicit drug production in the global south. Even in countries like level assessments. Afghanistan, Colombia and Burma. Their discomfort has multiple causes. For Yet at the same time, in Afghanistan the illicit ■■ As a dual edged sword, generating one, for those development donors tied opium economy has led to growing levels both benefits and costs for producer to the ‘Washington consensus’ and its of corruption; offered a revenue stream for countries, illicit drug production has typically left the development emphasis on ‘market based solutions,’ it is private state actors and insurgent groups community unaware of how best perhaps counterintuitive to intervene and who seek to undermine the legitimacy of to respond. actively seek to undermine one of the few the central state; and ‘crowded out’ licit ■■ ‘Alternative development’ has long value chains that appears to work in the economic enterprise, a trend that is likely been considered problematic by kind of conflict affected environments that to increase in the wake of dwindling levels many development organisations: illegal drug crops are concentrated. Rather, of aid. Furthermore, the concentration of with a host of examples where it has donors like the United States Agency for opium poppy cultivation in the former been focused to provide largesse and political favour to elites, so that they International Development (USAID) and the desert areas of southern and south western will in turn coerce the rural population Department for International Development Afghanistan has led to the intensification of to abandon or reduce opium (DFID) look to work with markets, intervening agricultural production, including the use of poppy cultivation. in order to make them ‘work for the poor.’ harmful pesticides, increased salination and ■■ The kind of pro-poor development They do not look to destroy a market entirely ultimately leading to the collapse of rural outcomes that donors like DFID or the as is the intent of the current international livelihoods for the land-poor and increasing World Bank might support are lost or control system and would no doubt question rates of outmigration. merely an externality of a programme whether such an aim is achievable. primarily designed to leverage As a dual edged sword, generating both reductions in levels of opium poppy A second cause of discomfort has been benefits and costs for producer countries, cultivation, much of which is only the problem of identifying an appropriate illicit drug production has typically left the short lived. development response to illicit drugs development community unaware of how ■■ Many of the statistics used as both production, particularly given the benefits to best respond. While in the past there descriptors of illicit drug crop opium and coca cultivation have delivered to was some sympathy for the argument production and metrics for assessing the performance of drug control the rural households and communities that that a possible development response measures are conceptually and produce them. For example, in Afghanistan to illicit drug production in a country like methodologically weak. illegal opium is the largest export; it has Afghanistan was to legalise or regulate ■■ Too often, policy makers are guilty created an estimated 400,000 direct jobs drug crop production, there is now a 2 of drugs fetishism - viewing the (Full Time Equivalent); boosted the legal recognition that this option leads to its own world solely through the prism of economy, providing livelihoods for farmers development challenges.4 Not least the fact drug production and drug control and those providing agricultural inputs and that the comparative advantage of a major measures. Their statistics give consumer goods; and helped bring 265,000 drug producing country like Afghanistan lies little or no consideration to the wider socioeconomic, political and hectares of former desert land under with illicit, not licit, drug crop production 3 environmental context inhabited by agriculture. Policy makers and practitioners and therefore many of the economic those individuals and communities are hard pressed to offer examples of benefits that opium production has brought that cultivate opium poppy and coca. development assistance that has delivered would be lost to more efficient producers in such dramatic outcomes. the global north, such as Australia, France 128 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 129

and Spain. These countries have not only made In practice, both illicit drug crop cultivation and the necessary advances in agricultural inputs the legal economy can grow in parallel and it and techniques but also have the large farms is not uncommon for investments in physical Area based rural necessary for the economies of scale required to infrastructure such as irrigation and agricultural development sell opiates competitively on the international inputs such as fertilisers, are used to increase the ‘ programmes with the market, along with the institutional capacity and amount of land under opium poppy and its yields.7 primary objective of security regimes required for effective regulation. Other interventions, some of them ostensibly reducing illicit drug In the absence of the option of shifting to legal or designed to deliver development outcomes, crop production - so regulated production, for both practical and legal such as the increased production of staples or called ‘Alternative reasons, many development organisations have high-value horticulture, have marginalised the Development’ - have been left not knowing which way to turn. land-poor, leading to changes in land tenure long been considered arrangements, the migration of vulnerable groups Those advocating for drug control, such as problematic by and the concentration of drug production in more organisations like UNODC, have offered a limited many development remote and insecure regions. organisations. Limited menu of responses for development donors, in geographic scope many of which run contrary to donors’ current In this situation, development donors have and often perceived thinking and practice. For example, area based often argued that it is the responsibility of as little more than rural development programmes with the primary law enforcement to respond to the diversion crop-substitution, objective of reducing illicit drug crop production of development investments into illicit drugs alternative - so called ‘Alternative Development’ - have production or the relocation of cultivation and development finds long been considered problematic by many that these kind of unintended consequences little financial support development organisations.5 Limited in geographic should not interfere with the business of delivering from the main scope and often perceived as little more than crop- development assistance. The high price of opium development donors substitution, alternative development finds little poppy, and the alleged insurmountable profit within the OECD financial support from the main development of opium production, is cited as justification donors within the OECD.6 In Afghanistan, there has for abrogating responsibility to eradication been the added challenge that this kind of area and interdiction teams even if ill-considered ’ based programme tasked with delivering a wide development interventions may have played a range of services, including physical and social role in making matters worse. The relatively high infrastructure within a contained geographic income of those farming opium poppies is also territory, has been out of line with a development used to justify targeting development assistance architecture and funding that is more sectoral- in areas where drug crops are not grown; on the based and tied to national programmes. basis that those growing illicit drug crops are not the ‘poorest of the poor,’ and therefore not part of The change model that underpins alternative the mandate of the development donors. development is also far from clear with many development donors perceiving it intimately It is the contention of this paper that this tied to coercive measures such as eradication fundamental misalignment between a and efforts to make development assistance development community focused on improving contingent on reductions in drug crop cultivation, the welfare of the Afghan population and the so called ‘conditionality.’ There are many examples challenges of addressing widespread illicit drug of alternative development, particularly in crop production is in large part a function of the Afghanistan, where the strategic focus of the way that opium poppy and the illicit economy programme has been to provide largesse and is currently perceived and understood - not just political favour to elites so that they will in turn by policy makers and practitioners but also by coerce the rural population to abandon or reduce scholars. Much of the problem lies with the opium poppy cultivation. The kind of pro-poor various statistics used to describe and quantify development outcomes that donors like DFID or opium production in Afghanistan, many of them the World Bank might support are lost or merely produced by UNODC and cited repeatedly in an externality of a programme primarily designed media coverage and the academic literature. These to leverage reductions in levels of opium poppy statistics shape how we have come to understand cultivation, much of which is only short lived. the scale and nature of the drugs problem and thereby have informed policy responses. In the absence of a change model aligned with current development theory and practice, the The rest of this paper focuses on a number of most common response of the development drug-related statistics, including levels of opium community has been to ignore the illicit economy poppy cultivation, the number of farmers involved altogether and to carry on with its conventional in opium poppy cultivation, the reasons why development programmes. In Afghanistan it farmers grow opium and the economic returns has not been unusual to hear the argument that to opium poppy cultivation. While it is recognised any support to legal on-farm, off-farm and non- that collecting data on illicit drug crop cultivation farm income will lead to a contraction of the is fraught with problems, it is critical that policy illegal economy or at least provide an increased makers and scholars fully understand the veracity portfolio of legal options that farmers can pursue. of this data —its methodological and conceptual 128 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 129

limitations - before using it as the foundations in methodology over time, as well as the University following the results of the for development programmes or policy problems associated with the disaggregation 2004 survey and with closer collaboration responses. Indeed, this paper argues that of cultivation data, particularly in what is the with USG, the UNODC and USG figures many of these statistics have presented a diverse and dynamic socioeconomic and subsequently aligned more closely. In 2015, simplified and ‘profit maximising’ model of political terrain of rural Afghanistan. further changes in the UNODC methodology the factors influencing farmers’ livelihoods were made – making comparisons over time There are in fact two sources of data on choices, which has proven deeply misleading particularly problematic.9 the extent of opium poppy cultivation in and further alienated the development Afghanistan, the UNODC and the United While national data had become more community from engaging constructively States Government (USG). In the past, there aligned between UNODC and USG, there with the challenges of illicit drug production were wide discrepancies between the remain discrepancies at the provincial in developing countries. estimates of opium poppy cultivation by level rendering explanations for shifting UNODC and USG, with a difference of over levels of cultivation at the regional and 80,000 hectares between the two surveys in provincial level rather challenging. Part of Estimating Opium 2004 (see Figure 1). the explanation for these discrepancies is Poppy Cultivation the different methodological approaches Prior to 2002, the UNODC survey was entirely adopted by the two surveys and how they formed on a ground-based ‘census’ and while calculate the full extent of the agricultural pioneering at the time, it had limitations. Levels of opium poppy cultivation are often areas – the agricultural ‘mask,’ how samples Based on an assessment of reports of where used as an important metric for judging are selected and the number of images cultivation was located, surveyors were counternarcotics efforts. However, in collected. Afghanistan the rise and fall in the hectarage required to travel to what could be remote of opium poppy has also been used as a and insecure villages and visually estimate These limitations make assessing changes benchmark for judging the progress of the the amount of land under opium poppy in levels of cultivation at the district level wider statebuilding project; and not just cultivation. Incomplete information on the problematic and severely limit the value at the national level but also tied to the whereabouts of opium poppy, insecurity, of using district-level figures for assessing performance of individual donor countries wide scope for human error, inability to progress against opium poppy cultivation, and their development and security verify data, and the challenges of supervision as in the case of ‘conditionality’ – where investments in specific provinces - most in the field, were just some of the problems development assistance is made contingent notably the US in Nangarhar, the UK in associated with the ground survey at the on reductions in opium poppy cultivation. time.8 Helmand and the Canadians in Kandahar. To properly assess changes in cultivation at While there are obvious problems In the 2001/2002 growing season, UNODC the district or community level, it is necessary associated with linking the performance introduced commercial satellite imagery for to conduct a comprehensive review of the of counternarcotics efforts - let alone the major opium producing provinces of the area being assessed and establish what statebuilding - with annual fluctuations in south and east, combining it with a ground- crops are being cultivated. While resource opium poppy cultivation, there is the added based survey in many of the provinces in the intensive, this approach provides detailed challenge of deciding which figures to use, center and north where cultivation was not data on the different crops cultivated in an how to account for significant changes as extensive. With support from Cranfield area of interest, can support an assessment

Figure 1. A comparison of National data on opium poppy cultivation in Afghanistan, 1994-2013 (hectares)

250000

200000

150000 UNODC

100000 USG

50000

0 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 130 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 131

There are many of the uptake of different legal crops (including The Number of Farmers examples of orchards, wheat and annual horticultural crops) Growing Opium Poppy ‘ alternative and can thereby offer both an assessment of how development, resilient any reduction in opium poppy cultivation particularly in might be and the impact of efforts to expand the Afghanistan, where cultivation of high-value horticultural crops. This A further statistic that became a benchmark for the strategic focus kind of data, produced by USG and analysed by the scale of the drug problem in Afghanistan and of the programme Alcis Ltd, has been used as part of the assessment was often cited in scholarly and policy papers has been to provide of the Helmand Food Zone and has provided along with the media, was the number of farmers largesse and political invaluable data on changing cropping patterns growing opium poppy in Afghanistan. This data favour to elites so over a five year period.10 was produced by UNODC between 2003 and 2010, that they will in with estimates ranging from a low of 245,000 in This data, combined with detailed fieldwork turn coerce the 2009 to a high of 509,000 in 2007 (see Figure 2). examining the changing socioeconomic and rural population At the time, this was seen as an important metric political environment and patterns of non-farm to abandon or by which to assess the importance of opium income has developed an understanding as to why reduce opium production to the Afghan economy and how it was changes in cultivation have taken place. It has also poppy cultivation. changing over time. With an average of between provided a prognosis as to whether these factors The kind of pro- 6.2 to 6.5 people per household, the number of would be sustained, and offered insights into the poor development people involved in opium poppy cultivation was unintended consequences of drug control and outcomes that reported to be as many as 3.3 million people or development efforts – not least the likelihood of 12 donors like DFID 14.3% of the total population, in 2007, falling to relocation of production to neighbouring areas. or the World Bank 6% in 2010. Unfortunately, it is the emphasis on estimates of might support are cultivation at the provincial and district level – many There are, however, some major challenges lost or merely an of which are of questionable provenance – that has with this particular metric. The most obvious externality of a become the focus of drug control agencies such as is establishing a meaningful estimate of the programme primarily UNODC and which has left many policy makers and number of households involved. Here the most designed to leverage practitioners within the drugs and development serious issue is whether farmers are actually in reductions in levels communities speculating over causality and a position to answer questions regarding the of opium poppy disagreeing over appropriate programmatic households in the village and their activities to cultivation, much of responses.11 the degree of integrity required. This problem is which is only short lived. ’

Figure 2: Number of households involved in opium poppy cultivation in Afghanistan reported by UNODC, 2003-2012

600,000

500,000

400,000

300,000

200,000

100,000

0 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 130 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 131

compounded when researchers are enquiring about such a dramatic transformation over the last few sensitive or illegal subjects, phenomena that change years that many official data collection tools have markedly over time or practices that are somehow found it hard to keep up. For example, remote concealed or which take place in private rather than sensing imagery shows that between 2003 and 2013 public spaces. the amount of land under agriculture in the former desert areas of south and south-west Afghanistan Evidence over the last few decades suggests that increased by as much as 265,000 hectares, much there are significant challenges with regards to the of which was cultivated with opium poppy.18 knowledge of village members and the veracity of Official statistics barely recognise this growth their responses about the farming practices of other or the estimated population of up to 1.2 million households in the same village. There are further people that resides there. At best, the data on the concerns regarding the nature of the questions number of farmers involved in poppy cultivation in asked and whether phenomena are adequately Afghanistan was incomplete, while at worst it was defined or understood in the same way by all those highly inaccurate and misleading. interviewed. A critical issue is when asked about ‘the number of households involved in opium poppy cultivation in this village,’ do all respondents have the same understanding of who should be included? For example, where there is a landowner that cultivates The Reasons Why Farmers opium poppy but employs a sharecropper to work Grow Opium the land, would this be reported as one household or two? In some cases, particularly in the south and east, even if sharecroppers have worked in the Integral to how policy makers and scholars perceive village for many years, they would not be considered illicit drug crop cultivation and those that grow it as being of ‘this village’ if they did not own land and is the data produced on why the crop is grown.19 hence would not be included in the response.13 Each year since 2006, UNODC has asked a sample Further, labourers residing outside the village of of farmers the reasons why they cultivate opium enquiry but working there during the opium poppy poppy.20 The high price of opium has typically harvest as itinerant labourers would not be included been recorded as the most popular response to this by those that actually live in the village as being of question, cited by 41% of respondents in 2006:21 ‘this village.’ Nor would these labourers be counted 25% in 2007;22 74% in 2008;23 61% in 2009;24 41% in elsewhere if they came from a village that had no 2010;25 59% in 2011;26 44% in 2012;27 72% in 2013;28 history of opium poppy cultivation, since they would and 44% of those interviewed in 2014.29 In fact, not be covered by UNODC’s village survey. ‘high price’ has been the most frequent response Meanwhile, UNODC reports that 1.5 million people every year of the survey with the exception of 2007 were involved in opium poppy cultivation in 2010, and 2008, when ‘poverty alleviation’ was the most a fall of 1.8 million from 2007 when it estimated popular response by farmers, cited by 29% and 92% 30 that 3.3 million people were involved. These figures of respondents respectively in those two years. were calculated on the basis of an assumed average In fact, 2008 seems anomalous given the huge household size of 6.5 people. However, the National proportion of farmers citing ‘poverty alleviation’ as Risk and Vulnerability Assessment – which serves their reason for cultivating poppy compared with 14 as Afghanistan’s National Household Survey, other years, where typically no more than 15 per suggests a national average of 7.3 persons per cent of those interviewed gave this response. On the household, which would result in a markedly higher surface, the high frequency of this response could number for the estimated total number of people be a function of negative economic circumstances in involved in opium poppy cultivation.15 Other data 2008. However, closer analysis suggests it could be a collected in the rural areas in which opium poppy methodological issue - 2008 apparently being the It is quite possible for is grown consistently suggest significantly larger only year when UNODC reported against multiple ‘ a land-poor farmer to household sizes than the national average. For responses for cultivating opium poppy rather than cultivate opium poppy instance, the NRVA reported an average household just one. In 2009, the annual opium poppy survey as a means of accessing 16 size in Helmand province of 9 persons in 2005, reverted back to reporting only a single response both land – and thereby while other surveys have consistently reported even from farmers. From then until 2014, almost none water – as well as credit, higher figures of almost 13 household members.17 of the other reasons for cultivating opium poppy, to achieve the outcome of food security, while at Indeed, there are questions about how mentioned so frequently by respondents in the the same time wishing to representative national data is of the areas in which 2008 survey and recorded in 2007, are cited by more 31 produce opium to pay for opium poppy is actually cultivated. The level of than 15% of those interviewed each year, and his son’s wedding. insecurity tends to limit access for formal surveys the ‘high price of opium’ became by far the most in the parts of the country where opium poppy has frequent response reported each year, irrespective become concentrated. There is the added challenge of whether opium prices had in fact risen or fallen. ’ that some of these hard-to-reach areas, such as the The difference between what is reported in the former desert areas in the south, have experienced 2007 and 2008 surveys and the responses in the 132 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 133

respondents’ answers. There is great potential To properly assess changes in cultivation at the district or for a bias in favour of more secure, peri- community level, it is necessary to conduct a comprehensive urban areas on the part of those conducting ‘ review of the area being assessed and establish what crops the survey and also the likelihood of social are being cultivated. While resource intensive, this approach desirability bias by respondents.33 However, if provides detailed data on the different crops cultivated in an contextual data is gathered about what shapes area of interest, can support an assessment of the uptake of the decisions of farmers, it could provide a different legal crops (including orchards, wheat and annual basis for recasting the conversation to make horticultural crops), and thereby can offer both an assessment of it less threatening, as well as information to how resilient any reduction in opium poppy cultivation might be support verification of findings. and the impact of efforts to expand the cultivation of high-value In conclusion, both the methods and the horticultural crops findings reported are problematic. Reducing the myriad of factors that inform poppy cultivation to a single response is simplistic 2008 report, highlight the ’conceptual cover his wheat deficit and feed his family. and potentially very distortionary. It ignores and methodological weaknesses of an The result of these advance sales might well how the decision to cultivate is shaped by approach that attempts to distil the be that once the crop was finally harvested, individual, household and community assets, complex and interconnected factors he would have little or no opium to actually values and behaviour. It overlooks the rules that inform household decision-making sell on the open market. that govern how households access the into a single answer.32 At its most basic, Therefore, for this farmer, the relatively factors of production and neglects both the recording and reporting only one response high price of opium at the beginning of complex political environment in which opium denies the multifunctional role that opium the season would only be important in that poppy cultivation takes place and the multiple poppy plays in rural livelihood strategies. there might be more land available under and often competing institutional interests at Moreover, none of the responses listed and sharecropping arrangements that year, play. Finally, it ignores the multifunctional role tabulated by UNODC are actually mutually particularly from the influential landowners that opium poppy plays in rural livelihoods exclusive. The recording of only one answer, in the village who had established good and how these roles vary across different without any contextual background on relations with the local security commander socioeconomic groups and locations. those responding, also fails to recognise and possibly anti-government elements, as the fact that farmers with different assets a way of insuring themselves against crop may weigh the multiple reasons why they destruction. The farmer’s familiarity with cultivate opium poppy in quite different how to cultivate opium poppy would mean ways. that he had an increased probability of The Economic Returns For example, it is quite possible for a land- getting this land and due to the landlord’s to Opium Poppy poor farmer to cultivate opium poppy as a relationship with local powerbrokers, a

means of accessing both land – and thereby greater probability of obtaining a yield The economic returns to opium are typically water – as well as credit, to achieve the than other farmers who had not built these presented in the UNODC annual survey and outcome of food security, while at the same kind of alliances. In this context, ‘high price’ cited by others, as gross returns and compared time wishing to produce opium to pay for may have featured as a response by this with the gross returns on wheat. This is his son’s wedding. Such a marriage would farmer as shorthand for ‘it works,’ but it is calculated by multiplying the price of opium/ achieve a range of other outcomes, which importance was rather minor compared to wheat by the average yield. The focus on gross might include fulfilling his son’s wishes, the other assets that opium ensured access returns presents a number of problems: securing lineage and possibly establishing to, some of which the farmer might not familial bonds with a relatively wealthy have even given to the enumerator during ■■ Both estimates ignore the by-products and influential family in the community. a short discussion, in his desire to avoid of each crop; Marriage to a more prosperous family disclosing sensitive information on both ■■ There are considerable differences in may in turn secure access to other assets opium production and the household’s input costs between opium poppy in the future, including land, non-interest financial circumstances. (an input-intensive crop) and wheat bearing credit (known as qarze hasana) (typically grown using only family This points to a further problem beyond or perhaps to gain the kind of patronage labour); the conceptual problems associated that might support another son getting a with recording and reporting only a ■■ Opium and wheat are presented as job or even ensure the family’s protection the only alternatives to each other and single answer to a direct question on the from an ongoing or potential conflict with mutually exclusive, whereas there are reasons for opium poppy cultivation: the a neighbour. a number of other cropping options clear challenges of asking farmers direct and opium poppy and wheat are often For this individual farmer, the high price of questions about an illegal activity in the grown on the same land over time as opium is almost irrelevant. He may have complex political landscape in which part of sensible crop rotation practices sold most of his share of the opium crop in opium poppy is grown in Afghanistan. This aimed at achieving food security advance the previous year so that he could more direct line of enquiry raises concerns through a combination of direct and meet the bride price and secure his son’s over how security issues and the presence exchange entitlement. future wife. He might have also sold what of armed actors (state, insurgents and little residual opium he had, in the spring others) not only impacts on the selection prior to this year’s harvest, so that he could of respondents, but also how it affects 132 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 133

the weight of wheat straw as of wheat.40 The straw By-products can also be sold on the open market. Prices vary When asked about depending on availability and season, but in the ‘the number of north during the winter, wheat straw can sell at a ‘ households involved Both opium and wheat have by-products that can price that is commensurate with the value of wheat in opium poppy be either sold or used by the household. Opium grain.41 Consequently, the failure to include the cultivation in has two by-products, poppy straw and seed. value of wheat straw can result in the gross returns this village,’ do all Neither are included in UNODC’s calculations of on wheat being significantly undervalued. respondents have the gross returns. same understanding Poppy straw is typically used as fuel for of who should households, saving on the purchase or gathering be included? For of firewood or alternative fuels. It is estimated example, where there that a jerib (1/5 of a hectare) of opium poppy Inputs is a landowner that can provide fuel for a household for around six cultivates opium weeks, saving around $1.00 per day.34 The straw poppy but employs a can also be sold on the open market. UNODC’s comparison of economic returns to wheat sharecropper to work Poppy seed can also either be used or sold.35 It can and opium poppy does not reflect the significant the land, would this be processed into cooking oil by small household differences in input costs, despite the input- be reported as one presses, with the resultant waste, known as intensive nature of opium production. For opium, household or two? khunjara, fed to livestock. An alternative is farmers incur higher costs for land preparation; use to sell to local traders who sell it on to larger more fertiliser per unit of land; spend money on 36 diesel for a tube well or hire the use of a pump when ’ traders who transport the seed to Pakistan for production into edible oils.37 Given the amount there is insufficient irrigation water. Furthermore, of poppy seed produced each year and the small while all crops are subject to an agricultural tithe amount of seeds required for planting, there payable to the local mullah, opium production is a significant amount of seeds available for incurs additional costs in the form of payments to sale or use. In the south, one hectare of poppy corrupt government officials to avoid eradication or produces an estimated 60 to 75 man of seed payments to insurgents. (the equivalent of 270 to 337.5 kg) which in 2009 Most important is the large difference in labour sold for 300 PR/man. Farmers estimate around requirements. Opium requires an estimated 360 2.5 to 5 man (the equivalent of 11.25 kg to 22.5 person-days per hectare,42 compared to an average kg) of seed is required to cultivate one hectare of only 31 person-days days for rain-fed wheat and of opium. This leaves 55 to 72.5 man per hectare 64 days for irrigated wheat.43 While wheat can be cultivated (the equivalent of 247.5 kg to 326.25 largely managed by household labour,44 opium kg). If this is applied to the 209,000 hectares of usually requires costly labour during the harvest opium poppy cultivated in 2013 – and assuming season,45 with daily wage rates on occasions the same level of cultivation in 2013/14 – there reaching $2 per person-day in 2013 in areas such as would be a potential surplus of 51,727 to 68,186 Bakwa in Farah and Khaniishin in Helmand.46 metric tonnes of poppy seed available for sale. As To minimise the need for hired labour, farmers have late as 2005, poppy seed was still a legal export pursued a number of strategies including staggered and listed in official statistics. planting, cultivating different varieties of opium With regard to the by-products of wheat poppy with different maturation periods, engaging cultivation, Maletta38 stated that ‘any attempt to in reciprocal labour arrangements, and maximising analyze the wheat crop as an activity conducive the use of household labour, including women and only to the production of grain would be children. Wealthier households have been found deeply flawed.’ In practice, wheat straw plays an to prefer to recruit labour under sharecropping important role in the household economy. In arrangements, as well as offering advance payments particular, it serves as feed for livestock during on the future opium crop as a way of increasing the winter months, allowing households to their returns at the expense of farmers with limited retain their animals and sell them in the spring land and capital. As Figure 3 shows, such is the at higher prices than if they had to sell them in value of the by-products of wheat and the costs of the previous fall. inputs for opium production, that the net returns on As such, wheat straw is an important input wheat can be comparable with those of cultivating 47 into livestock and its by-products such as ghee opium poppy, for example in 2008. Prior to 2008, (clarified butter), krut (dried cream) and wool. In wheat was estimated to have generated higher net turn, livestock manure is used as a fertiliser and returns than opium poppy cultivation in a number mixed with wheat straw for use as household of districts in the southern region of Afghanistan 48 fuel. Wheat straw is also used in the production in 1994, 1997 and 1999. However, it should be of mud bricks and in house construction.39 The kept in mind that opium prices in the 1990s were yield of wheat straw is high and there is the considerably lower than they have been over the potential for a unit of land to yield up to twice past decade and than they are currently. 134 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 135

Table A2. Estimated net returns on opium poppy and wheat in Helmand Province in 2007/2008 growing season (Afs/Jerib)

OPIUM POPPY WHEAT

Amount Unit Cost Total Amount Unit Cost Total

Inputs Seed 4 Kg 0 0 Seed 30 Kg 0 0 Farmpower 2 Hours 500 1,000 Farmpower 1 Hour 500 500 Fertiliser (DAP) 2 Bag 1,500 3,000 Fertiliser (DAP) 0.5 Bag 1,500 750 (50kg) (50kg)

Fertiliser (Urea) 2 Bag 1,200 2,400 Fertiliser (Urea) 1.5 Bag 1,200 1,800 (50kg) (50kg) Hired Labour during % of 2.5 kg 3,150 7,875 Hired Labour 0 Person 0 0 harvest final days yield Food 20 Person 50 1,000 days 0 0

Sub Total 15,275 3,050

Other costs Payment to mullah 10% 1 Kg 3,150 3,150 Ushr 10% 50kg 33.3 1,665 of final of final yield yield Payment to avoid 1 Payment 6,000 6,000 eradication

Sub Total 9,150 1,665

Outputs Opium gum 10 Kg 3,150 31,500 Wheat Grain 500 33.3 16,650 Seed 490 Kg 10 4,900 Wheat Straw 1,000 10 10,000 Fuel (stalks) 42 Days 50 2,100

Sub Total 38,500 26,650

Net returns (family 28,950 21,935 labour) Net returns (hired labour) 20,075 Net returns (family labour 22,950 and bribe) Net returns (hired labour 14,075 and bribe) 134 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 135

opium plays in the wider household economy. For Socioeconomic differentiation instance, for the sharecropper in a former desert It remains unclear why we are still only area, opium not only provides an on-farm income with which to purchase food, but it also provides a ‘ presented with a A further issue is the uneven return to different comparison between socioeconomic groups involved in opium poppy place to live - something he had lost access to when the gross returns cultivation. UNODC typically reports gross opium was banned in the canal command area and on wheat, a crop returns per hectare, derived by multiplying the landowners moved to less labour-intensive crops grown primarily for average yield by the average farm-gate price at that they could manage with their own family labour. consumption, and harvest time. The costs of production, as reported As the only crop valuable enough to cover the costs opium, an input- by farmers, are then subtracted from this gross of establishing a tube well, as well as the running intensive and labour- figure to derive a net return per hectare. It is not costs, opium production also cross-subsidises the intensive cash crop. clear whether the production costs reported by production of food crops, such as wheat and a small In addition to being farmers are actual costs or a percentage of the amount of summer vegetable production, as well as misleading, such gross.49 In 2013, UNODC reported a gross return providing drinking water for the household and their comparisons may of $4,500 per hectare and a net return of $3,600 livestock. None of these in-kind benefits are included further distort policy per hectare,50 the equivalent of $900 and $720 in any calculations of the returns on opium poppy, thinking, not least by per jerib, respectively. but they can be just as important in determining levels of cultivation as the on-farm income that giving an impression Net returns will vary depending on both the farmers expect to earn from opium production. that the primary inputs and the outputs (including the by- alternative to opium products) of the final crop. Data highlighted poppy is wheat, which elsewhere show how much gross returns could not be farther varied over a relatively short distance in central from the truth. Helmand during the 2013 growing season, Staples versus cash crops ranging from $900 to $1,424 per hectare – a function of the different yields obtained in the It is also important to recognise the different roles ’ former desert areas north of the Boghra canal these crops play in the household economy and how compared to those in the canal command this impacts on the allocation of both labour and land. area itself. Most importantly, these data offer Maletta51 has outlined how small landholdings, low a calculation of the contrasting net returns to yields and high population densities in Afghanistan different socioeconomic groups. It notes the preclude the majority of farmers from achieving different land tenure arrangements, how these (let alone surpassing) self-sufficiency in wheat and differ between the canal command area and deriving any monetary value from its production. the former desert areas north of the Boghra and The result is that for the vast majority of farmers in what this means in terms of the net returns on Afghanistan, wheat is a staple and not a cash crop cultivation. It shows how markedly different and as such, the presentation of the gross returns (or net returns are, depending on whether farmers even the net returns) on the two crops is misleading. own their own land, whether they use family or hired labour, including during the harvest period For most farmers, an increase in the price of wheat and according to the different sharecropping does not result in a shift to commercial wheat arrangements under which farmers gain access production, even if the net returns on wheat to land. At the extreme the net returns in 2013 production surpass those of opium. Instead, high to a landowner - who used no hired labour at all wheat prices are seen by farmers as bringing about - varied from $167 per jerib in the former desert an increase in the cost of food that needs to be area to $997 in the canal command area. If hired managed by the household. This is especially the labour was used during the harvest, both saw a case where there are concerns over wheat imports fall in net returns; however, the landowner in the from neighbouring countries such as Pakistan and former desert area actually incurred a loss of $34 where violence and conflict make it difficult to travel 52 for each jerib of opium poppy cultivated. and purchase wheat at the local market. The losses are even more significant for For farmers who own sufficient land, an increase landowners who met all the costs of production in wheat prices may result in an increase in wheat but employed a sharecropper who was given production. However, this will largely be at the three quarters of the final crop. Under this margin, where households may forego some of the arrangement, the landowner made a net loss of land that they had cultivated with cash crops the $251 per jerib whereas the sharecropper actually previous year (including opium poppy) to produce 53 made a net gain of $224 per jerib. extra wheat for family consumption. It should be emphasised that this shift to wheat is not driven by As indicated in another report, not only do the pursuit of profit and commercial production, but estimates of the gross (or even net) returns rather by the need to hold down financial outlays for fail to capture the on-farm income different a staple food and to secure wheat supply.54 socioeconomic groups actually derive from its sale, but they also ignore the different functions 136 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 137

However, for the vast majority of Afghan farmers, Of course, a range of other crops are cultivated Many of the small landholdings and the large number of in the winter alongside opium poppy and statistics used as household members mean that they cannot meet wheat, including onion, spring onion, garlic, ‘ both descriptors their household food requirements even if they clover, spinach and squash, which rarely figure of illicit drug crop allocate all of their land to wheat. For these farmers in comparisons with opium poppy. There are production and there will always be a need for cash income to also crops that are planted in the spring, such as metrics for assessing make up any food deficit and to manage the risk watermelon, melon, cotton, eggplant, cucumber, the performance of of crop failure. Therefore, in response to increasing tomato, pea, green bean and okra, all of which drug control measures wheat prices, these farmers will persist with cash compete with opium poppy for both household are conceptually and crop production and where possible pursue land and labour, but only between February/ methodologically wage labour opportunities so that they can meet March and May when opium is harvested and not weak. Guilty of drugs the rising cost of wheat flour on the market. For for the entire winter growing season. farmers that do not own any land at all and gain fetishism - viewing the Estimates have shown that the potential net access to land through sharecropping or tenancy world solely through returns on these cash crops have often been arrangements, an increase in the wheat price may the prism of drug favourable. For example, research in Nangarhar force them off the land altogether, if landowners production and drug in 2006 showed higher net returns for gandana look to ensure food security by substituting control measures (a type of leek), onion, okra, potato, squash and wheat for opium poppy and no longer require - these statistics tomato than for opium poppy.55 In Badakhshan, sharecroppers or tenant farmers to manage the give little or no Johnson and Polovny56 reported higher net land due to the lower labour inputs required consideration to the returns from tomato, eggplant, onion, cucumber, for wheat production. Moreover, if sizeable wider socioeconomic, carrot, turnip, cauliflower and okra than for opium landowners are prevented from opium cultivation political and in 2007. Moreover, unlike opium poppy, many (i.e. by an effective ban), they will make ends meet environmental of these crops can be intercropped and farmers cultivating wheat, but will eject sharecroppers context inhabited by have been found to have as many as five crops who had been on their land cultivating opium those individuals and cultivated on the same unit of land at the same poppy and instead engage in wheat cultivation communities that time. cultivate opium poppy entirely or largely with household labour. Given the multitude of crops that compete with and coca. The varying responses to an increase in the opium poppy for the factors of production in price of wheat from farmers with quite different Afghanistan and the fact that many can be grown landholdings reflects the inadequacy of the ’ alongside each other as a way of managing pests, current comparison of the economic returns on labour inputs and risks of crop failure, it remains opium and wheat. Not only does it portray a far too unclear why we are still only presented with a simplified model of farmers as economic actors comparison between the gross returns on wheat, having solely income maximising objectives, a crop grown primarily for consumption and choosing between two crops grown with quite opium, an input-intensive and labour-intensive different functions and inputs, but it also presents cash crop. In addition to being misleading, such an image of farmers as homogenous, landed, comparisons may further distort policy thinking, shaped by the same aspirations and preferences not least by giving an impression that the primary and in a position to respond to shifts in prices alternative to opium poppy is wheat, which could by simply reallocating inputs from one activity not be farther from the truth. to another. This is clearly not the case in rural Afghanistan and it distorts our understanding of those who are engaged in drug crop cultivation and how they respond to efforts to encourage them to abandon it. 136 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 137

This process of abstraction, methodologically Conclusion by asking specific drug-related questions, and Explanations for shifting conceptually by producing data describing levels of cultivation often those that cultivate drug crops, that is distinct ‘ have little empirical Statistics shape how we view the world, from the assets, institutions, organisations, basis. Yet, they have particularly when they describe activities policies and legislation that shapes their provided development or population groups that few have direct livelihoods, offers little of analytical value policy makers in western experience of such as is the case with illicit to those practitioners actively engaged in capitals, already nervous drug crop production. As this paper has development in rural areas where opium about engaging in what shown, many of the statistics used as both poppy and coca are grown. Confronted with is undoubtedly a complex descriptors of illicit drug crop production real examples of households and communities and highly politicised issue, and metrics for assessing the performance transitioning out of illicit drug crop production the reason to abrogate of drug control measures are conceptually through the diversification of on-farm, off-farm responsibility to a drug and methodologically weak. Guilty of drugs and non-farm income and the provision of control community that fetishism - viewing the world solely through public goods, development practitioners are lacks expertise in rural the prism of drug production and drug control confounded by the drug control community’s livelihoods and the measures - these statistics give little or no reaction to a rise in aggregate levels of political economy of consideration to the wider socioeconomic, cultivation - even though the increases may conflict affected states. political and environmental context inhabited have occurred in a more remote and less The result is the kind by those individuals and communities that well endowed part of the province. They of simplistic models of cultivate opium poppy and coca. are further undermined by explanations of rural development that cultivation that are reduced to price, profit and have been so common Indicative of this fetishism is the reductionism high income and abstinence to the activities of in Afghanistan and other with which the communities that cultivate drug the state and its campaigns of eradication and drug producing countries, crops are described. In the case of Afghanistan, law enforcement. where development drug control agencies such as UNODC depict assistance is a means to Although these explanations for shifting rural households in binary terms, as either leverage reductions in drug levels of cultivation often have little empirical ‘poppy farmers’ or ‘non poppy farmers.’ Their crop cultivation from rural basis, they have provided development policy livelihood activities are circumscribed by a elites and power brokers makers in western capitals, already nervous comparison of the gross returns on opium and - the oft cited ‘carrot and 57 about engaging in what is undoubtedly a wheat and by statistics which assert that it stick’ - while development complex and highly politicised issue, the is simply ‘high price’ that motivates farmers outcomes and how they reason to abrogate responsibility to a drug to cultivate opium poppy: a caricature that is are distributed go control community that lacks expertise in frequently perpetuated in the media and in largely unnoticed. some of the scholarly literature.58 rural livelihoods and the political economy of conflict affected states. The result is the kind These statistics fail to capture the diversity of simplistic models of rural development of drugs cultivating contexts and the ’ that have been so common in Afghanistan varied patterns of opium poppy and coca and other drug producing countries, where cultivation within a single source country. development assistance is a means to leverage They simplistically portray those who cultivate reductions in drug crop cultivation from rural drug crops as homogenous economic actors elites and power brokers - the oft cited ‘carrot driven by the desire to maximise income;59 and stick’ - while development outcomes and either for the purpose of conspicuous how they are distributed go largely unnoticed. consumption - ‘the greedy’60 - or as a means of escaping poverty - ‘the needy.’ Risk is largely It is clear that development organisations considered in the context of the state acting to need greater support in developing a better destroy the crop.61 How different households understanding not only of the diverse and communities living under different circumstances and motives that influence circumstances and political orders experience drug crop cultivation but also of the different and manage the risk of the imposition of a pathways that households follow when they ban or crop destruction is largely neglected, transition out of opium and coca production. as is the diverse risks and opportunities that Greater academic research in this area will help, households and communities associate with supported by a much more discerning review engaging in activities related to ‘the legal of current drug-related statistics by scholars economy.’ As the critique of these statistics has and development policy makers alike. shown, there is much in the current portrayal . . of drug crop-producing households that, to quote Durrenberger62 in his discussion of Chayanov’s seminal work on the peasant economy, ‘do not match the realities observed.’ 138 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 139

Notes

1 Editors note: this represents a policy 9 UNODC, ‘Afghanistan Opium Poppy household size of 12.7 ; the Swedish overview of extensive statistical data to Survey 2014: Cultivation and Production’ Committee for Afghanistan, ‘Farming be found in W. A. Byrd and D. Mansfield, (Vienna: UNODC, 2015), p.6 systems of Nad Ali District, Helmand ‘Afghanistan’s Opium Economy: An Province’, Afghanistan Agricultural 10 For more detail see D. Mansfield, Alcis Agricultural, Livelihoods, and Governance Survey, Fifteenth Report, part VI, 1992, Ltd, and OSDR, Managing Concurrent Perspective’, Prepared for the World estimated an average household size and Repeated Risks: Explaining the Bank Afghanistan Agriculture Sector of 13 ; and Mansfield’s own work in Reductions in Opium Production in Review, Revised Version: 23 June 2014. Helmand over an extended period. Central Helmand between 2008 and 2 Special Inspector General for Afghanistan 2011 (Kabul: Afghanistan Research and 18 Alcis, ‘Where have all the flowers Reconstruction, ‘Quarterly Report to Evaluation Unit, 2011), http://www.areu. gone? The real reasons for the drop the United States Congress’, 30 July org.af/Uploads/EditionPdfs/1122E%20 in the poppy crop in Afghanistan in 2014, https://www.sigar.mil/pdf/ Managing%20Concurrent%20and%20 2015’, 10 October 2015, https://stories. quarterlyreports/2014-07-30qr.pdf, p.82. Repeated%20Risks%202011.pdf ; and alcis.org/where-have-all-the-flowers- Mansfield, ‘Examining the Impact of gone-7de7b34e8478#.5w9yl9u2h. 3 D. Mansfield, ‘Helmand on the Move: IDEA-NEW on Opium Production’. Migration as a Response to Crop Failure’, 19 UNODC, ‘World Drug Report 2015’, p.94; Afghanistan Research and Evaluation Brief 11 For example see the Ministry of Counter UNODC, ‘Afghanistan Opium Poppy (Kabul: AREU, 2015), http://www.areu. Narcotics assessment of the Helmand Survey 2014: Cultivation and Production’ org.af/Uploads/EditionPdfs/1521E-%20 Food Zone and its push to replicate (Vienna: UNODC, 2015), pp.7-8. Helmand%20on%20the%20Move-%20 the programme in Kandahar, Uruzgan 20 The 2005 survey also reported the reasons Migration%20as%20a%20Response%20 and Badakhshan, at http://mcn.gov.af/ farmers were cultivating opium poppy to%20Crop%20Failure.pdf. en/page/5138/5141, as well as Senator that year, but the question was originally Dianne Feinstein’s letter to Hillary 4 W. Byrd and D. Mansfield, ‘Licensing one that asked ‘the reasons for increasing Clinton calling for the same thing (D. Afghan Opium for Medicinal Use: cultivation of opium poppy’ (UNODC Feinstein, ‘Feinstein: Support Afghan Why It Won’t Work’, Peacebrief 179 and MCN), United Nations Afghanistan Farmers, Cut Off Taliban’s Drug Funding’, (Washington, D.C.: USIP, 2014). Opium Survey (Kabul: UNODC/MCN, 7 February 2012, http://www.feinstein. 2005), p. 62) rather than the reasons 5 ‘UNDCP’s development projects appear no senate.gov/public/index.cfm/2012/2/ for cultivation per se. Since 2006 the different from the numerous other small- feinstein-support-afghan-farmers-cut- question has remained unchanged. scale inputs (schools, irrigation, health off-taliban-s-drug-funding) and contrast centres etc) being made by the NGO’s and this with J. Havfenstein’s critique (‘The 21 UNODC and MCN, Afghanistan Opium other development orientated UN agencies. Helmand Food Zone Fiasco’, 26 August Survey (Kabul: UNODC/MCN, 2006), p.73. The latter agencies at least have experience 2010, http://registan.net/2010/08/26/ 22 UNODC and MCN, Afghanistan and some comparative advantage in helmand-food-zone-fiasco/) or that of V. Opium Survey, 2007, p.99. development. It would not appear to Felbab-Brown (‘Afghanistan Trip Report VI: be cost effective to fund UNDCP as an Counternarcotics Policy in Afghanistan: 23 UNODC and MCN, Afghanistan Opium intermediary to build schools etc. when A Good Strategy Poorly Survey (Kabul: UNODC/MCN, 2008), p.105. they simply contract out to others to do the Implemented ‘, 10 May 2012, work. We are also concerned that excessive http://www.brookings.edu/ 24 UNODC and MCN, Afghanistan Opium UNDCP attention to a myriad of projects research/opinions/2012/05/10- Survey (Kabul: UNODC/MCN, 2009), p.79. counternarcotics-felbabbrown). distracts attention away from the area of 25 UNODC and MCN, Afghanistan Opium comparative advantage which relate to 12 UNODC and the Ministry of Counter Survey (Kabul: UNODC/MCN, 2010), p.62. their mandate as a specialist drugs agency’. Narcotics (MCN), Afghanistan Opium From M. Kapila, G. Templar, and E. Winter, 26 UNODC and MCN, Afghanistan Opium Survey (Kabul: UNODC/MCN, 2007), p.7. ‘Review of British Aid to Afghanistan’ Survey (Kabul: UNODC/MCN, 2011), p.60. (Emergency Aid Department/Western 13 David Mansfield’s own 27 UNODC and the Ministry of Counter Asia Department: Overseas Development experience in the 1990s. Narcotics (MCN), Afghanistan Opium Administration, 1995), p.52. 14 Central Statistics Organisation (CSO), Survey (Kabul: UNODC/MCN, 2012), p.54. 6 UNODC report that commitments Afghanistan Statistical Yearbook 2007/08, 28 UNODC and MCN, Afghanistan Opium to alternative development account (Kabul: CSO, 2008), downloaded from Survey (Kabul: UNODC/MCN, 2013), p.51. for ‘just 0.2% of overall development http://www.cso.gov.af/, p.xviii. assistance’ and only ‘3% of all 29 UNODC and MCN, Afghanistan Opium 15 The 2011/2012 NRVA takes an ‘implied’ development assistance in the four Poppy Survey 2014: Socio Economic average household size of 7.4 persons main coca-producing and opium- Analysis (Vienna: UNODC, 2015), p.33. CSO, Afghanistan Statistical Yearbook producing countries’ between 2009 2013/14, (Kabul: CSO, 2014), downloaded 30 UNODC and MCN, United Nations and 2013. UNODC, ‘World Drug Report from http://www.cso.gov.af/, p.12). Afghanistan opium Survey, 2006, p.99; 2015’ (Vienna: UNODC, 2015), https:// UNODC and MCN, United Nations www.unodc.org/documents/wdr2015/ 16 CSO, Afghanistan Statistical Yearbook Afghanistan Opium Survey, 2008, p.105. World_Drug_Report_2015.pdf, pp.84,88. 2004/05, (Kabul: CSO, 2005), downloaded from http://www.cso.gov.af/, p.88. 31 With the exception of ‘high 7 D. Mansfield, ‘Examining the Impact income for little land’ in 2012 and of IDEA-NEW on Opium Production: 17 For example, UNHABITAT, UNDP, and poverty in 2014 which were both Nangarhar: A Case Study’, 2015, http:// the Helmand Planning Group, ‘Helmand cited by 20% of respondents. pdf.usaid.gov/pdf_docs/PA00KCPT.pdf. Initiative Socio-Economic Survey: Prepared by Agency Coordinating 32 D. Mansfield, Alcis Ltd., and OSDR, 8 Between June 1997 and December Body for Afghan Relief Survey Unit ‘Managing Concurrent and Repeated 2000, David Mansfield managed (Peshawar)’, 2000, http://www. Risks: Explaining the reductions in opium the UNDCP Afghan Opium Poppy scottshelmandvalleyarchives.org/docs/ production in central Helmand between Survey in Afghanistan. fes-00-04.pdf, p.1, reported an average 2008 and 2011’ (Kabul: Afghanistan Research and Evaluation Unit (AREU), p.8. 138 | AFTER THE DRUG WARS LSE EXPERT GROUP ON THE ECONOMICS OF DRUG POLICY | 139

33 A. Pinney, ‘DFID Afghanistan Data Quality 45 D. Mansfield, ‘Coping Strategies, 56 Johnston and Povolny, ‘Alternative Assessment of the Asia Foundation Accumulated Wealth and Shifting Development Program for Surveys of the Afghan People 2006-2009’, Markets: The Story of Opium Poppy Northeast Afghanistan (ADP/N)’. Unpublished Report, September 2010. Cultivation in Badakhshan 2000- 57 UNODC and MCN, Afghanistan Opium 2003’, A Report for the Aga Khan 34 D. Mansfield, ‘‘Economical with Poppy Survey, December 2013, pp.63-64 Development Network, 2004, p.8. the truth’: The limits of price and 58 J. P. Caulkins, J.D. Kulick, and M. A. R. profitability in both explaining opium 46 See ‘Diversity and Dilemma: Kleiman, ‘Drug Production and trafficking, poppy cultivation in Afghanistan and Understanding Rural Livelihoods and Counterdrug Policies and Security and in designing effective responses’, In A. Addressing the Causes of Opium Poppy Governance in Afghanistan’, (New York Pain and J. Sutton (Eds.), Reconstructing Cultivation in Nangarhar and Laghman, City, Center on International Cooperation, Agriculture in Afghanistan (Rugby: Eastern Afghanistan’ (PAL – Internal New York University) ; P. Keefer and N. Practical Action Publishing, 2007), p.20. Document No. 2, December 2005, p.8). Loayza, ‘Innocent Bystanders: Developing 35 In the south opium poppy seed sells 47 Mansfield, Poppy Free Provinces, p.48. Countries and the War on Drugs’ (World for around 300 PR/man. A man is a Bank Publications, 2010), pp.95-134. 48 See UNDCP, Afghanistan: Assessment unit of weight typically used in the Strategy and Programming Mission 59 UNODC and MCN, Afghanistan Opium south and is the equivalent of 4.5 kg. to Afghanistan (Kabul: UNDCP, May- Poppy Survey, December 2013, pp.63- 36 In 2005, 976 metric tonnes of poppy seed July 1995) ; and UNDCP, Afghanistan 64 ; Caulkins et al., ‘Drug Production were exported, down from 3,198 metric Annual Opium Poppy Survey 1997, and trafficking, Counterdrug Policies tonnes in 2003/04 (CSO, Afghanistan (Islamabad: UNDCP, 1997), p.11, cited in and Security and Governance in Statistical Year Book (2009-09: 205). D. Mansfield, ‘The Economic Superiority Afghanistan’, p.23 ; M. Naim, Illicit: how of Illicit Drug Production: Myth and smugglers, traffickers and copycats 37 Dawn, ‘Reducing edible oil imports’, Reality - Opium Poppy Cultivation in are hijacking the global economy Dawn, 24 November 2008, http:// Afghanistan’, Paper prepared for the (London: Arrow Books, 2005), p.69. www.dawn.com/news/430194/ International Conference on Alternative reducing-edible-oil-imports. 60 Chouvy (P. A. Chouvy, Opium: Uncovering Development in Drug Control and the Politics of Poppy (London: I.B.Tauris, 38 H. Maletta, ‘The Grain and the Chaff: Crop Cooperation, Feldafing, 7-12 January 2012. 2009), p.158) cites a counternarcotics residues and the cost of production of 49 UNODC and MCN, Afghanistan official in the British Embassy in reference wheat in Afghanistan in a framing system Opium Poppy Survey, April 2013 to Helmand Province, saying ‘My feeling perspective’, Unpublished Paper, 2004, p.2. (Kabul: UNODC/MCN), p.62 is that a lot of the poppy is grown here 39 Maletta, ‘The Grain and the Chaff’. by people who are greedy, not needy; 50 UNODC and MCN, Afghanistan not by people who have to grow Opium Poppy Survey, December 40 D. Mansfield, Poppy Free Provinces: poppy. They are growing it for profit. 2013 (Kabul: UNODC/MCN), p.10. Measure or a Target? Report for AREU’s They are not being forced to grow it, Applied Thematic Research into Water 51 Maletta, ‘The Grain and the Chaff’, p.4. they choose to grow it, and they do it Management, Livestock and the Opium because they can get away with it’. Economy (Kabul: AREU, 2009), p.48 ; 52 Mansfield, Poppy Free Provinces Maletta, ‘The Grain and the Chaff’, p.13. ; Mansfield et al., Managing 61 F. E. Thoumi, Illegal drugs, Economy, and concurrent and repeated risks. Society in the Andes (Washington DC: 41 G. M. Johnston and J. J. Povolny, Woodrow Center Press, 2003) ; D. Mejia, ‘Alternative Development Program for 53 Mansfield et al., Managing ‘Evaluating Plan Colombia’ in P. Keefer Northeast Afghanistan (ADP/N): Economic concurrent and repeated risks. and N. Loayza (ed.) Innocent Bystanders: Analysis of Net Returns to Opium Poppy, 54 W. A. Phillips, G. W. Horn, and M. E. Smith, developing Countries and the war on Wheat and Vegetables, Badakhshan, ‘Effect of protein supplementation on drugs (World Bank Publications, 2010). 2007’ (United States: USAID, 2008), p.21. forage intake and nitrogen balance 62 P. E. Durrenberger, ‘Chayanov’s 42 D. Mansfield and A. Pain, Counter of lambs fed freshly harvested Economic Analysis in Anthropology’, Narcotics in Afghanistan: The wheat forage’, Journal of Animal Journal of Anthropological Research Failure of Success? (Kabul: AREU Sciences 73 (1995): 2687-2693. 36, no.2 (1980): 133-148, p.134. Briefing Paper, 2008), p.16. 55 D. Mansfield, ‘Exploring the ‘Shades 43 Maletta, ‘The Grain and the Chaff’, p.24. of Grey’: An Assessment of the Factors Influencing Decisions to Cultivate 44 Maletta, ‘The Grain and the Chaff’. Opium Poppy in 2005/06’, A Report for the Afghan Drugs Inter-Departmental Unit of the UK Government, http://www. davidmansfield.org/data/Field_Work/ UK/Final2005Drivers.pdf, p.22. Editor Dr John Collins

Managing Editor Alexander Soderholm

Project Assistant Jay Pan

Creative Director Indira Endaya

Cover photography Adrianna Zajaczkowska

LSE IDEAS is an IGA Centre that acts as the School’s foreign policy think tank.

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