The Regulation of Drugs and Drug Use Research Paper

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Introduction

Drug use has developed historically as part of wider social practices. Drug-related harms, including harms to health and social order, need to be understood in a sociocultural context, as do the regulatory frameworks that have developed to control drug demand, supply, and use. Contemporary drug policy reflects an uneasy balance between public health and law enforcement responses. This dichotomy creates avoidable complications and unintended consequences for associated regulatory practices. Balanced approaches to drug control and regulation should consider a number of central issues, including the role of science and evidence, ethics, public opinion, and the socioeconomic and political context.

Historical Overview

The Role Of Drug Use In Context

The use of naturally occurring psychoactive substances predates modern history, with evidence of tobacco, cannabis, alcohol, opium, coca, psilocybin, and peyote occupying important cultural, spiritual, medicinal, and economic roles in ancient societies. Historically, the distribution and use of psychoactive substances was not State regulated in the manner that is seen today, although in some countries taxes on psychoactive substances provided a significant source of government funding which predated income taxation systems.

Indian opium was imported into the UK as early as 1606 by trade ships chartered by Elizabeth I. In the seventeenth and eighteenth centuries, hemp cropping for rope and sail manufacture was widespread in the North American colonies. In many countries, opium, morphine, and cocaine were used widely in a range of home remedies and tonics. Since the advent of modern toxicology in the early nineteenth century, the manufacture of new drugs for medicinal and other purposes has steadily increased the available range of psychoactive drugs.

Responses To Drug Use

It is beyond the scope of this research paper to fully discuss the antecedents of the regulatory legal approach to the control of drug supply and use (for a detailed history refer to Courtwright, 2001; MacCoun and Reuter, 2001; Davenport-Hines, 2004). Some of the key events and social changes are overviewed here to illustrate the shift toward progressively inclusive drug regulation and control by the State, together with harsher penalties for drug use, supply, and manufacture.

A number of important socioeconomic and political developments influenced the development of international drug control conventions and treaties and related jurisdictional laws. The Opium Wars of 1839–42 and 1856–80 were the result of clashes involving international politics, commercial interests, and moral opinion on drugs. The conflicts followed the persistent supply of opium to China by the Dutch, Portuguese, English, and British India despite the 1729 ban on importation and the 1799 prohibition of importation, cultivation, and use.

A key post-industrial revolution theme that developed as populations became more mobile was a sense of moral panic about drug use. This legitimized prejudice against the lower socioeconomic classes and minority immigrant groups, their drugs of preference, and perceived racial and cultural difference. In some countries during the nineteenth century gold rush era, this was first evident in relation to Chinese immigrants and their use of opium, culminating in fears about social order and laws banning opium smoking directed at the Chinese opium dens (Goode and Ben-Yehuda, 1994).

State concerns about the prevention of drug-related health harms can be traced in England back to the 1868 Pharmacy Act, involving the first regulation of drugs. This was prompted by accidental and intentional drug poisonings and the recreational use of opium and chloral hydrate by the working classes. Initial concerns around the need for regulation of the patent medicine industry via State legislation paved the way for the early foundations of an international drug control system.

The 1912 Hague Opium Convention focused on reduced production, distribution, and consumption of opiates; restricted use for legitimate medical purposes; and domestic legislation to prevent narcotics abuse. Since then drug control measures have become progressively more inclusive and more punitive (for a description of development of international conventions on drugs, see Courtwright, 2001; MacCoun and Reuter, 2001; Davenport-Hines, 2004).

Another important development was the rise of the Temperance Movement in the UK and United States, leading to prohibition in those and other countries. Prohibition became a popular vehicle for social control in the context of industrial expansion, urbanization, increased population, immigration, and associated social order problems. Prohibition initially focused on alcohol but later extended to opium and other drugs, taking a punitive moral stance toward drug use and users. This laid the foundations for the medical-disease model of addiction in which drug use was seen as a marker of individual deficit and lack of agency, thus requiring the paternalism of both law enforcement and public health responses (Berridge, 1980).

Although the pursuit of altered consciousness through drug use has been a constant in human history, the shifting public and State view on the permissibility of this owes a debt to the emphasis during the seventeenth and eighteenth century Enlightenment on reason and rationality as the underpinnings of the perfect society.

Current Situation: Drug Use And Harms

Drug use practices and the associated harms, both individual and social, continue to be shaped by changing sociocultural, economic, and political norms. Although it is difficult to find comparable data across nations, the available estimates show that tobacco and alcohol use is prevalent in most populations, and accordingly is responsible for the majority of drug-related mortality and morbidity compared with illicit drugs.

Worldwide there are an estimated 2 billion people who consume alcoholic beverages and 1.3 billion people who currently smoke cigarettes or use other tobacco products (Shafey et al., 2003; World Health Organization, 2004). Alcohol-related harms largely occur in developed countries, but these harms are increasing in some developing countries as a result of commercial interests establishing alcohol beverage markets. Globally, there are around 76 million people with a diagnosable alcohol use disorder. Alcohol use is estimated to cause ‘‘around 20–30% of esophageal cancer, liver cancer, cirrhosis of the liver, homicides, epileptic seizures, and motor vehicle accidents worldwide’’ (World Health Organization, 2004: 1).

Tobacco use is also a major cause of morbidity and mortality in developed nations, and as with alcohol, it is a growing problem in developing countries where increasing affluence is associated with increased use and associated health harms. There were an estimated 4.9 million premature deaths worldwide in the year 2000 from smoking. By 2020 the global burden is expected to exceed 9 million deaths annually, with 7 million of these occurring in economically developing countries (Shafey, 2003: 7).

The annual global prevalence of illicit drug use has been estimated to be 200 million people between 15–64 years of age (5% of the world population), with around 25 million people (0.6% of the world population) having problematic drug use (United Nations Office of Drugs and Crime, 2006). The most prevalent illicit drug is cannabis, followed by amfetamine-type stimulants (amfetamines and ecstasy), cocaine, and opiates. Illicit drug use has been greatest in developed countries, although here, too, the pattern has been shifting. The demand for treatment for problematic amfetamine-type stimulants use, for example, is highest in Asia, followed by Oceania, North America, Europe, and Africa (United Nations Office of Drugs and Crime, 2006: 9).

Contemporary Drug Policy – Public Health Or Law Enforcement?

A key historical development is the dichotomization of drug use and harms into primarily a public health and social issue or a law enforcement and criminal justice issue (largely coinciding with the ‘legal’ and ‘illegal’ classification of substances). This dichotomy is reflected in the relative emphasis of regulatory strategies. A particular jurisdiction’s policy will be determined by the relative importance placed on the nexus of ‘drugs and crime’ compared with the relationship between drug use and dependence or addiction.

Prohibitionist policy frameworks for the use of certain drugs have led to most jurisdictions giving public health strategies fewer resources and a role subordinate to law enforcement. Critics have pointed out that the emphasis on law enforcement has made it difficult for public health interventions to effectively operate, and that there are unintended negative consequences of policies that have stressed law enforcement (Kerr et al., 2005).

Range Of Current Legal Responses

There is a general expectation that the State will bear responsibility for implementing systems of control and sanction in order to prevent and punish individuals whose behavior transgresses accepted rules and standards. Today there is a range of drug use and related behaviors that are considered criminal offences in law and law enforcement. These behaviors are subject to a variety of punitive measures (ranging from community service to the death penalty) or to civil regulatory actions and other sanctions (e.g., civil commitment, court-ordered treatment, and diversion-to-treatment programs, or compulsory drug treatment to avoid loss of social assistance, welfare benefits, or child custody).

The most common types of criminal offence are for the use, possession, trafficking, and manufacture of drugs of dependence. However, supply control and regulatory measures have in recent times extended to the diversion and nonmedical use of prescription pharmaceuticals, diversion from legitimate commerce of precursor chemicals (e.g., methamfetamine manufacture), the regulation of alcohol and public smoking, and, most recently, counterfeit drugs and Internet trafficking (see Monitoring the Future Survey; Makkai and McAllister, 1998; EUROPHEN, 2004).

A powerful factor motivating public expectations around the regulation of illicit drugs is the perceived relationship between drugs and crime. Politically, the regulation of drugs through legal mechanisms has been made possible through the characterization of certain drug use (and drug users by association) as immoral and a threat to social order. As noted, this developed historically in relation to the State’s desire to control minority immigrant and other groups viewed as problematic. However, the enshrinement of this control in binding international legal frameworks has positioned drug use as a behavior for which legal control and sanctioning is viewed as a justified response. Implicit in this justification is the contested assumption of a causal link between drug use and crime, and a belief that drug use can be reduced or even eliminated through supply reduction means.

There has been a long tradition of research into possible links between drug use, dependence, and crime, leading to the development of various theoretical models (e.g., see Makkai, 2002 for a discussion of models of enslavement, criminality, escalation, psychopharmacology, economic compulsive, and systemic violence). However, although the evidence consistently shows that people who use illicit drugs have a significantly higher than average crime rate and are more likely to have been arrested, no direct causal relationship has been identified (Lipton and Johnson, 1998; Deitch et al., 2000; Stevens et al., 2003). Current research into the drugs and crime issue engages with trans disciplinary assessment of inequalities in environmental factors such as poverty, education, and unemployment to further an understanding of the relationship.

The Addition Of A Range Of Public Health Responses

Broad public health discussion on the relationship between drugs and dependence or addiction has focused on the presence or absence of personal responsibility. There are various disease models under the umbrella of addiction that view drug users as powerless to address their addiction. In this context, it is argued that drug user responsibility is limited, since autonomy or agency is affected by a pathology or defect leading to addiction (from psychosocial factors to genetic predispositions) (see Kellehear and Cvetkovski, 2004). Given this lack of autonomy, it is argued, appropriate regulatory strategies should be adopted – that is, the relative emphasis of strategies should be based on public health rather than law enforcement responses.

However, arguments that minimize responsibility for drug use owing to addiction can be challenged as they are based on a small group of problematic drug users and do not represent the patterns of drug use by most people. Further, those who support abstinence and prohibition counter the argument about lack of autonomy due to addiction by insisting that it is the individual’s responsibility to avoid drugs in the first place.

Within the public health and law enforcement spectrum, there is a range of intervention strategies that are possible. Various types of legal and law enforcement strategies have been applied, such as legalization, supply reduction, border and domestic interdiction, street saturation policing, cautioning, and court and police diversion of offenders. In public health, harm reduction and minimization strategies can take the form of various kinds of demand reduction – such as primary, secondary, and tertiary prevention plus or minus health promotion – or use human rights approaches and strategies for drug law reform.

Different jurisdictions vary in their place on the spectrum between public health harm reduction and minimization or law enforcement approaches. The differential application and operation of strategies such as needle and syringe programs (NSP), supervised injecting facilities (SIF), and law enforcement reflect this orientation. Paradoxically, it is not possible to predict the use of particular interventions from the prevalence of drug-related harms or even the available evidence of efficacy. For example, although NSPs have operated for more than two decades in Australia and Europe, with widespread acceptance of evidence demonstrating their effectiveness in preventing human immunodeficiency virus (HIV) and hepatitis C virus (HCV) transmission, they are still prohibited in many American states and have been only recent additions in parts of Asia and other developing countries where HIV and HCV are most established. Differential outcomes are also evident across jurisdictions attempting to implement SIF trials, and even within certain countries (e.g., in Australia establishment of a SIF trial in Sydney and failed attempts in Melbourne and Canberra).

Finally, there are examples of mixed approaches in which law enforcement innovations are defined by some as key components of the harm reduction and minimization response (e.g., community policing, drug courts, court diversion to treatment schemes, decriminalization of possession, cannabis normalization and nonenforcement policy, drug and driving programs).

Opponents of a primary emphasis on law enforcement responses have pointed out that international drug control mechanisms are failing on a number of fronts and produce unintended consequences. The direct and indirect costs include a lack of success in reduction of illicit market supply of heroin, cocaine, methamfetamine, and cannabis; the additional negative social impact of law enforcement approaches; the deemphasis on drug-related harms such as HCV and HIV/AIDS; the lack of evidence regarding the efficacy of law enforcement policies and programs in reducing drug use and associated health and social problems; and the undermining of the operation of existing public health interventions – for example, riskier drug use to avoid police detection and non-uptake of NSP services (see Kerr et al., 2005; Rhodes et al., 2005). The important idea that laws, as they are written and enforced, shape the risk environment for drug users is attracting growing acceptance (Burris et al., 2004).

Issues For Debate

Drugs use and the harms associated with their use, together with the regulatory frameworks designed to address them, are closely linked to the socioeconomic and political contexts; therefore, consideration of context is important in addressing contemporary drug use and related harm. Irrespective of one’s views on the different approaches, regulation is the foundation of both public health and law enforcement. The relative emphasis on public health or law enforcement approaches, although important, should not detract from the discussion of their broader context. Issues such as the unequal social, economic, and political power of competing groups, the State as the site of competition between different strategies to regulate and protect citizens from drug use and its harms, the function of science and the status of evidence, and ethical questions related to these dimensions must all be considered.

The different jurisdictional outcomes in debates about supervised injecting facilities (SIFs) provide a good example of the crucial role of context. The relative socioeconomic and political power exerted by opposition groups in some jurisdictions has prevented trials from going ahead. These groups used a variety of strategies, from engaging in media debates to lobbying for legislation. Both those for and against SIFs engaged with the available scientific evidence, by critiquing and rejecting it or by interpreting it in ways that supported their positions. In this context, drug users were marginalized and their participation in the development of policies that affected them was directly minimized. Ethical issues, such as how we are to understand the relationship between drug use and dependence, individual autonomy, and rights, were difficult to discuss when debates circulated around the simple dichotomy of drug users as addicted and lacking autonomy or as criminal and autonomous.

Even where regulatory interventions such as SIFs (which are seen as politically progressive by supporters) have been successfully implemented, there is the possibility that rather than displacing more punitive measures, such policy shifts may actually incorporate these in the overall governance of drug users, drug use, and the associated harms. For example, in relation to SIFs, Fischer and colleagues (2004) note that ‘‘little attention has been given to their implications as a substantial shift from the punitive repression of injection drug use (IDU) to the government of drug use as a form of regulated risk consumption and sociospatial ordering under the guises of public health’’ (p. 357). The unintended end point may be more punitive targeting of drug users who refuse to submit to new rules and regulations with harsher measures than originally in place (e.g., saturation policing around new SIFs).

The example of SIFs demonstrates how drug use regulation is influenced by the socioeconomic and political context and can lead to the entrenchment of a simplistic public health versus law enforcement dichotomy. Public debates are influenced by powerful lobby groups. Choices can be dominated by strategic and technical details or by simplistic moral and punitive responses. Specific strategic regulatory responses are important, both public health and law enforcement responses, but they must be considered within the wider social, economic, and political context to achieve a better understanding of their negative and positive consequences.

Conclusion

The State regulation and control of drugs, legal and otherwise, shifts according to current sociocultural and political determinants. At different points in history, most known psychoactive substances have been freely available and unregulated. Historically, public health, in addition to law enforcement, has played a role in the justification of drug control – from the earliest application of epidemiologic methods to illustrate the prevalence of drug use and associated mortality and morbidity in the population to the regulatory frameworks (legislative and taxation) governing the manufacture, distribution, and sale of pharmaceuticals to controls of the licit drugs of highest consumption, tobacco and alcohol.

Many countries have pragmatic drug control policies that sit within increasingly strict prohibition regimes (e.g., cannabis normalization, diamorphine prescription, supervised drug consumption facilities). However, taking a long-term view, there is nothing inevitable or permanent about prohibitionist drug regulation and control, nor are public health approaches to the regulation of drug use and harms stable and guaranteed. Beyond strict prohibition, drug law reformists currently advocate for a sophisticated view of drug regulation that encompasses a range of prohibitory, prescription, and regulatory drug control regimes. Another important theme gaining momentum in the debate about drugs and legal issues is the consideration of the international human rights legal framework as a means of achieving a balanced approach to drug policy through an emphasis on human dignity, enforceable limits on State actions, remedies for mistreatment, and State public health obligations.

The fluidity of the place of drugs in society poses a challenge for public health to be flexible and creative in working for the right balance of harm reduction and law enforcement approaches to drug use. Achieving this may require a better understanding of drug use and the related ethical, health, and legal issues in their sociocultural, economic, and political context. It may also necessitate further thinking about disputes regarding the use of science and evidence, as well as definitions of the relationship between drug use and dependence and individual autonomy and rights.

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