The absurdity of legalising drugs

But the war on drugs isn’t a war at all. It is an ongoing and complex process of law enforcement. It has different components which are handled in different ways by different jurisdictions and with differing degrees of effort, intelligence and success. Generalisations are impossible – except one: unlike war, law enforcement is never ‘won’.

Unless rendered obsolete by broader economic, social or technological change, crimes are rarely, if ever, eliminated. Theft, fraud, counterfeiting, people trafficking, knife crime, smuggling, tax evasion: there’s no end to any of those – and yet the ‘war’ against them all continues because the aim is not victory, but containment.

The complaint that government action against an undesirable activity ‘will only drive it underground’ overlooks the fact that this is better than the alternative – i.e. having it out in the open. There are certain things that law-abiding people are entitled not to have normalised; not to have their children see; not have to struggle against alone without the law on their side. And that’s especially important for the poorest and most marginalised communities.

None of that means we should abandon those who slip into the clutches of drug dependency – and want help. I think that prison for petty offenders is, for the most part, uselessly punitive. Aside from the waste of lives, there is the waste of money, which, in the case of most drug offences, would be much better used for treatment and rehabilitation. With due attention to context, we should look to other countries for examples of successful treatment-first, prison-last, approaches.

However, a compassionate, rehabilitative approach to drug dependency and legalising drugs are two different things – and the former does not require the latter. Indeed, the criminal justice system can play an active and constructive role. The fear of getting caught, the shock of conviction, the mandating of treatment and the restriction of supply can all help in the process of getting people off drugs and keeping them off.

This would require a realignment of the whole system around new priorities, but other countries show that it can be done while keeping drugs illegal.

Here’s another two things that can go together: the availability of a legal, regulated and abundant supply of drugs and a thriving criminal trade in the same or similar substances. In theory, legalisation should mean no more illegal supply – after all, why go to some guy down an alleyway when you could go to a licensed outlet with unadulterated products sold in standard units?

In practice, it’s more complicated than that – as America’s opioid epidemic proves beyond doubt. Far from pushing out the pushers, the over-prescription of entirely legal opioid-based medications has created new opportunities for them. By expanding the size and the demographic diversity of the opioid dependent population, the legal trade has expanded the market for illegal opioids including heroin. If your prescription has run out, or you need something cheaper (or stronger or perhaps merely different) then the dealers will sort you out. Of course, the product may or may not be cut with super-strength synthetic opioids like fentanyl – which is key factor in the epidemic’s horrific and worsening death toll.

Remember, all of this has happened in the context of a regulated and abundant supply of unadulterated opioids, and yet everything that isn’t supposed to happen has happened. The criminal trade hasn’t just survived, it has extended its reach – and innovated in all sort of dangerous new ways.

I suppose it might be argued that if a wider range of opioids were legal in America, there’d be no space for a parallel black market (though, of course, there’s a brisk criminal trade in the licensed opioids too). Indeed, many people in the liberalisation lobby (including Lord Falconer, if I understand him correctly) say they want to legalise all drugs.

This raises a number of questions. For a start, what do they mean by all? Cocaine? Heroin? Crack? Crystal meth? Fentanyl? Carfentanil? Is there any poison that they wouldn’t put on the shelves? Or do they intend to keep fighting a ‘war’ on some drugs?

Would the consumption and distribution of non-recreational drugs be liberalised too? What would be logic of maintaining tougher restrictions on non-psychoactive substances because of something that they don’t do?

Will the licensing and regulation of ‘recreational’ drugs include the same sort of testing regime that would apply to a medicinal drug – if so, who will pay for the trials and associated bureaucracy? How will they recoup the cost? And is it unreasonable to ask how many lab animals will suffer and die in the process?

Perhaps there’ll be a lower set of standards applied – and products sold on a caveat emptor basis, like tobacco is. Except that the warnings on cigarette packs are based on extensive scientific research – including large-scale population studies. Do the legalisers mean to license potent substances for which the corresponding evidence base is inadequate or non-existent? Will licensed manufacturers and vendors be issued with blanket immunity from future lawsuits?

Of course, a number of drugs that are used recreationally are also licensed under carefully controlled conditions for medical use. Would comprehensive legalisation mean licensing the same substance under two different regulatory regimes – one much laxer than the other? And what about those substances currently licensed for veterinary use that are misused by humans – for instance, some animal tranquillisers? Will there be a stricter standard of regulation for pets than people?

Campaigners who say they want to legalise ‘all drugs’ and also regulate them are contradicting themselves. Meaningful regulation means significant restrictions on how drugs can be sold. At the very least it has to mean no selling to children and teenagers; limits on the quantity that can be sold to each individual; standardisation of dose and potency; restrictions on re-selling, the strictest controls on combining different substances; and various other essential safeguards. Presumably, the regulated supply would also be subject to the same sort of taxes that alcohol and tobacco are – indeed that is one of the promised benefits of legalisation.

Thus even if we accept the frankly absurd proposition that “all drugs” should, could and would be legalised, regulation and taxation would leave a whole range of circumstances in which they’d remain outside of the rules. In which case, that leaves two possibilities: either the rules would be enforced – meaning that the ‘war on drugs’ will continue; or the rules wouldn’t be enforced, meaning that the promises of ‘regulation’ are a sham.

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Peter Franklin is Associate Editor of UnHerd. He was previously a policy advisor and speechwriter on environmental and social issues.

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