Talking About Legalization, Part II: Legalizing in Order to Regulate

May 15th, 2009 -This second part of COHA Research Fellow Rachel Godfrey Wood’s essay on drug legalization deals with the possible ways in which drugs could be decriminalized, and how the Government could do this while exercising greater control over the industry. It highlights Francisco Thoumi´s “naïve proposal” of creating an “insurance against drug addiction” in order to rationalize the relationship between personal responsibility and public health treatment. Furthermore, it looks at the unremitting bleak international environment for any reasonable discussion about drug policy, and asks what countries like Colombia should do in the face of these realities.

The Lesson from the Anti-Smoking Campaign
The prohibition of smoking in public places has, as of January 1 of this year, arrived in Bogotá. As in other countries’ urban areas, it has been a surprising success. It has not provoked an upsurge in civil disobedience, by negatively affected demonstrators, and the measure has been applauded by many non-smokers, tired of the deleterious medical effects caused by passive smoke. At the same time, evidence from the developed world demonstrates the success of the policy in reducing tobacco consumption. In Britain, for example, 400,000 people have already given up smoking, using the ban as a vehicle to quit the habit. In the long term, it is hoped that generations of young adults will grow up without immediately associating their social lives with smoking. The success of the anti-smoking campaign is relevant to the debate over other drugs for one reason: It demonstrates that governments can achieve progress in discouraging consumption of a harmful substance without making it illegal. In the case of cigarettes, the key factor in making the policy viable has been the alliance of non-smokers tired of having to inhale other people´s smoke. Some may find it contradictory to talk about legalizing illegal substances while simultaneously campaigning against tobacco consumption. There is no contradiction: Legalization should not by any means be confused as being a “pro-drugs” stance. On the contrary, legalization should be seen as a means by which government and society gain increasing control over the consumption of harmful substances which was previously left to the vagaries of a totally unregulated illegal economy.

Legalize and Regulate
As Ethan Nadelmann of the Drug Policy Alliance has pointed out, prohibition does not entail control over drugs: on the contrary, it amounts to the relinquishing of control to illegal actors. In any hypothetical legalization process, therefore, the regulatory regime would be crucial. It would inevitably include heavy taxation, similar to that which is imposed on tobacco in Europe. There would have to be strict controls over the composition of the drugs, in order to reduce the dangerous effects of additives and diluting agents. Drugs would only be sold in venues that acquire a license. For these reasons, legal drugs in Colombia would be highly regulated, and such regulations likely would be accompanied by increased restrictions on already legal drugs such as alcohol and cigarettes.

The correct position, therefore, should be “legalize and regulate” rather than just “legalize”, which sends out the wrong message. Many, like Botero, feel it would be contradictory to legalize drugs while simultaneously trying to encourage people not to take them. What he fails to see is that regulatory systems develop over time. As Thoumi points out, humans have coexisted with and consumed drugs for millennia (anthropological research suggests consumption of mind altering substances has existed in 233 out of 237 societies studied), but this consumption has always been subjected to various forms of regulations, be they legal, cultural, or religious. Prohibition, though, actually weakens a society’s capacity to develop such mechanisms. Legalization needs to be visualized in the long term, in a manner that acknowledges and realistically prepares for the possibility of a rise in short-term consumption (particularly in developed countries), on the basis that regulatory systems will develop over time and in ways appropriate for each country and culture.

Obviously, advocates of legalization should be clear about which drugs they intend to legalize. It is far easier to visualize the domestication of marijuana than such inherently addictive drugs like heroine or crack cocaine. As drugs expert Francisco Thoumi points out, cocaine (as opposed to the coca leaf, which has been chewed for centuries in Andean societies) and heroine have never been domesticated by any society in the way that alcohol and tobacco have, making any move towards legalization fraught with dangers. Any real “change in paradigm” would have to begin with the legalization of marijuana and assess its effects, before considering the legalization of more addictive and dangerous drugs.

Harm Reduction and Treatment: Francisco Thoumi´s “Naïve Proposal”
Regardless of various points of view on the proper make-up of the legal regime, the most recent discussions on the issue agree on the need for improved medical treatment of drug addicts as an alternative to criminalization. Under a legalized regime, the need for this would be even more pressing. Countries like Colombia have wholly inadequate systems in place to treat drug addicts. Augusto Perez was the director of the “Rumbos” program for prevention and treatment under President Pastrana, a program that was subsequently axed by President Uribe. Today, Perez would argue, the country only has 300 beds available to treat drug addicts, a woeful state of affairs. However, while Perez recognizes the right of people to consume drugs, he does not believe the state, or rather, taxpayers, should have to pick up the bill to treat people who have taken the risk to consume such substances on their own free will.

One would suspect that such a sentiment would be commonplace in countries across the continent, where resources are stretched, and drug users are rarely on the top of the public´s list of priorities. In response to this dilemma, Francisco Thoumi has advanced what he self-deprecatingly refers to as a “naïve proposal” to rationalize the relationship between the spheres of personal responsibility and treatment. He argues in favor of an “Insurance Against Drug Addiction,” which would be funded by taxes on the sales of drugs, and would therefore be paid only by consumers. The fund would then be used to pay for prevention, treatment and rehabilitation programs for addicts, as well as services for the indirect victims of addiction (family members, victims of theft, etc.) Thoumi suggests that this approach should be tried first on legal drugs such as alcohol and tobacco, before being used on currently illegal substances.

Legalization no Closer
The fact that an increasing number of experts have come to recognize the potential benefits of drug legalization for Colombia and other Latin American countries does not, of course, mean that fruition is around the corner. This is an internationally focused issue, not one that can be readily resolved by individual governments. At the present time, drug policy continues to be dictated by the United States, where a legalization policy is politically unviable, and where 80 percent citizens are said to firmly oppose it. Thoumi sees little possibility that the Obama Government will really rethink prohibition, and he has come to the conclusion that legalization is such a remote prospect that it is barely worth debating. The only institution capable of bringing about a worldwide reform in drugs policy is the United Nations, and there is little possibility of change there. Prohibitionist lobbies have significant political clout, since most officials are given contracts on a short term basis it is not in their interest to rock the boat. While European countries are showing moves towards decriminalization, it still seems unlikely that any of them will go as far as the outright legalization of some drugs.

From a Latin American perspective, the two countries most affected (Colombia and Mexico), both have right wing governments which are heavily committed to the anti-drugs struggle and opposed to any moves towards legalization. While it may be the case that officials in other governments privately sympathize with pro legalization-and regulation arguments, Thoumi believes they are unlikely to go out of their way to raise the issue, at least while still holding power. The majority of developing countries want to extract concessions from the United States one way or another (usually in terms of trade) and they see little point in antagonizing the U.S. over the issue of drugs. Remarkably, not even the United States’ most committed critic in the region, Venezuela, has articulated a case for legalization, in spite of the damage done to the country by drug-related violence. Evo Morales argues for the legalization of the coca crop and its commercialization to make other products. But even he stops short of advocating the outright legalization of what will always be the coca leaf´s most profitable derivative, cocaine.
Conclusion: So What Should Colombia Do?

Legalization advocates such as Nadelmann believe that Latin America, as the region most adversely affected by drugs’ prohibition, needs to be the catalyst for change by openly discussing the issue. Where better than the biggest cocaine producer in the world, Colombia? Certainly, such arguments find receptive ears among the country´s intellectual circles. The country’s media, often accused of being slavishly unquestioning of Government policies, has been awash with articles lampooning the Uribe government for its lack of imagination and bravery on the issue. There is an awareness of a need for a change of policy among various political sectors, including the opposition Polo Democrático, individuals within the Liberal Party, and such independent figures such as Antanas Mockus and Sergio Fajardo. Legalization deserves to be considered a pragmatic, non-ideological issue rather than being seen as associated solely with certain ideological persuasions or sub-cultures. That means that political actors should seek out coalitions with people who may otherwise share many different ideas and value systems on other matters. At the time of writing, though, such a coalition seems unlikely, with individual interests and ideological dogma getting in the way of any prospective coalition that would be willing or capable of changing the country´s policy towards what ends up as being its most profitable export crop.

Despite Nadelmann´s wishes, it still seems remote that any potential move towards legalization would be initiated from Colombia, even if the government changed. Colombia is tired of being treated as a pariah, and even progressive minded experts like Thoumi and Perez fear that any government calls for legalization would make it even more so. The international community could easily view Bogotá as failing to accept its responsibilities in the anti-drug struggle and trying to transfer the costs somewhere else. Such fears may be justified, but they do not justify continuing to play by rules that weigh heavily against Colombia. While unilateral legalization is out of the question, that does not mean that a future Colombian Government should not neglect to articulate the message that prohibition has failed, and in fact, that it has done more harm than good. In the report La Batalla Perdida Contra las Drogas, Galan, Ramirez, Thoumi and Vargas advocate a “smartening up” of eradication programs in the short term, while aiming to influence policies at an international level with an eye on the future. If this approach shows signs of success, it could then consider forming lobbies in coalition with like-minded governments, to challenge ruling consensuses in the United Nations as well as in some European countries. It would have to develop alternative forms of regulation which are not based on prohibition, and that means maintaining the decriminalization of personal consumption while stepping up prevention and treatment programs. Even if Colombia carries out such policies, it still seems clear that its fate most likely will lie in forces beyond its control: – Ultimately, radical change can only really come about from drug importing countries, and until that day arrives, Latin America´s response is unlikely to get far beyond “harm reduction” as the result of the application of a strategy of prohibition.

This analysis was prepared by COHA Research Fellow Rachel Godfrey Wood. Full article here.

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