by Marie Andrée BERTRAND

CANADA - Instructor in the Department of Criminology of Montreal University and government advisor, she was also one of the five members of the government commission which in the early 1970s studied the phenomenon of drug diffusion in Canada. She subsequently dissociated herself from the conclusions of the government work group, proposing the legalisation of marijuana and the controlled distribution of heroin.

ABSTRACT: Drug prohibition comes from pressure groups who often represent corporate interests but never those of the people. Moreover, this prohibition has proven to be both inefficient and the cause of many undesirable side effects. A more realistic and less immoral drug policy would remove power from a small group of bureaucrats and the police. It falls on society at large to search for new policies.

("THE COST OF PROHIBITION ON DRUGS", Papers of the International

Anti-prohibitionism Forum, Brussels 28th september - 1st october 1988; Ed. Radical Party)

Fifteen years ago, upon the completion of four years of studies and research (conducted throughout Canada, as well as abroad), I presented a report to the Canadian government recommending the abolition of drug control. The reasons for that recommendation were the following:

1. Making simple possession a crime is not an effective means of dissuasion;

2. More generally, the application of penal law for crimes without victims is a) ineffectual; b) entails recourse to proceedings which are in conflict with the rights of the individual (search without a warrant, the use of informers, double agents); and c) is always highly arbitrary, since the usual methods of detection are ineffectual and result in the repression of only a naive or disadvantaged fringe. Numerous legal experts and statesmen have recognised that recourse to criminal law for crimes without victims is illegitimate.

3. The cost of prohibition - or more to be more precise - the costs (social, moral, economic), are enormous. Nations squander their honour as well as public funds in efforts which are, at best, minimal;

4. The pedagogic function of criminal law to remind the citizen of the social values most cherished by society at large becomes perverted by the disordered, confused inclusion of material on a wide variety of substances presenting varying degrees of toxicity, as well acts of varying degrees of gravity. In fact, the drug laws in some countries still provide for severe penalties - even imprisonment - for acts which are not grave and which do not cause harm to others, and penalties for the possession and sale of substances which have not been proven noxious which are equally severe as those inflicted for possession and sale of drugs which are more potentially toxic. Furthermore, those States invoke their duty to protect the public health in order to justify the institution of penal control of certain substances while receiving considerable revenues from the sale of other drugs (such as tobacco and alcohol) which are known to be entirely noxious;

5. Prohibition creates, and favours the proliferation of, illegal markets and the vices associated with them;

6. The offence of simple possession or use authorises certain states (France, for example) to impose obligatory treatment on the accused. This constitutes another example of the violation of individual rights. But it is also the height of ignorance or hypocrisy, since it has never been sufficiently proven that obligatory treatment has ever resulted in the modification of anyone's behaviour. On the other hand, we know that the prisons and penitentiaries where a certain number of drug users are detained are glutted with psychotropic drugs of all kinds, and that the traffic of drugs inside those institutions is as heavy as - if not heavier than - the trade outside.

All the above arguments weigh in favour of the abolition of those laws still in force regulating the use of drugs (and as time goes by, the urgency to do so increases).

In fact, it becomes more and more clear that :

1. If we are to judge by its results, the attempt at dissuasion has been a failure - with the exception perhaps of some users in particular - at least in those populations considered. The number of users has increased, the traffic refined where it was necessary, but most often a good deal of the illegal transactions involving small quantities are carried out with the full knowledge of the police authorities who do not choose to intervene. The use of certain drugs which were popular during the 1960s has decreased (LSD, glue and the powerful hallucinogens), but we all know that criminal law had nothing to do with that; the users themselves and public opinion in general made those substances unpopular when the noxious properties of them were effectively made known;

2. Penal control of the use and sale of drugs has proven to be highly discriminatory, affecting (during the 1960s) the young and the visibly non-conformist, then the ethnic minority groups, and even more recently (in some European countries) foreigners, the poor and the unemployed;

3. The cost of applying the laws regulating drugs continues to increase, entailing the creation of special police services, the overloading of courts, prisons and treatment and post-treatment centres;

4. The epidemiological prophecies have proven groundless. Of course, there are still drug addicts in need of help; however, the emergency wards of the hospitals are less crowded now with addicts suffering from "bad trips" than during the 1970s;

5. The prohibitionist policy has - as was only to be expected - caused a growth of the illegal markets and an intensification of international drug trafficking. The police forces of the world have lost the 'war against drugs'.

6. The enforced treatment, or imprisonment, of addicts in order to reduce their habits, has proved a dismal failure.

Added to the reasons - given 15 years ago - for abolishing the legal prohibition of drugs are the following facts have which have since emerged :

l. In many Western countries, the conclusion has been drawn that many licit drugs are harmful to the individual's health, and that the costs incurred by the abuse of those substances exceeds acceptable limits. This is an illustration, first, of the incoherence of the actions of those States which prohibit certain substances and at the same time secretly encourage and publicly tolerate the use of nicotine and alcohol. Secondly, it illustrates the fact that social reaction to the negative effects of those two legal drugs is far more rational than the prevailing one to illegal drugs. The States - at least, some States - prohibit State-run radio and television stations to advertise those substances, or else impose the condition that the publicity be accompanied by a warning. The public and citizen associations were mobilised in order to limit attribution of negative effects only to users of cigarettes. The attitude as regards alcohol is quite interesting. Since it is drunken driving which constitutes a danger

to society, it was that point which was stressed, and not the use of alcohol in general. Intelligently-run campaigns admit use, on the condition that the lives of others are not endangered (Red Nose Operation, for example);

2. I was struck, as I am sure many others were, by the wall of resistance created to the conclusions and recommendations of the international commissions of inquiry on the subject of drugs. In fact, in the late 1960s and early 1970s, no less than a dozen countries proceeded through the agency of national committees or commissions of inquiry to investigate what was then referred to as "the drug problem", its extent, causes and the means to remedy it. Not one of those committees, and not one of those commissions - with the exception perhaps of the Pelletier Committee in France - recommended maintaining the status quo to its parliament. Some argued for the removal of the criminal status of certain substances, and others for the abolition of punishment for simple possession, etc. (...). And yet, nowhere, in any country, did the reports of these committees have any effect on legislation. True, penal action was modified in several points, and there was a certain "de facto" decriminalisation, however with all

the arbitrariness which that implies (such as the continued prosecution of the user or small dealer when he was a foreigner, belonging to the fringes of society, or simply when his head would not roll back to the police or the judge).

The following is an outline of the origins of the resistance to changing the drug regulation laws, which revealed clearly to me the IMMORALITY, HYPOCRISY AND ILLEGALITY OF PROHIBITION.

Resistance is found at both the national and the international levels, and anyone who holds dear the idea of changing the present laws owes it to himself to analyse that resistance, if it is eventually to be overcome.

RESISTANCE AT THE NATIONAL LEVEL

The recommendations of the national commissions were rarely, if ever, radical. Despite this, however, their parliaments ignored them, or diluted them to the point of rendering them ridiculous, or unrecognisable. And yet, the Commissions and committees were generally made up of respectable persons, whose scientific and moral judgement could hardly have been influenced. Furthermore, inquiries were often either extended to cover a period of many years, or else, more than one commission was occupied with the same problem (in England and the United States, for example) and ended up costing millions of dollars.

To what then can the inertia of the various parliaments or governments in carrying out the recommendations of the committees and commissions be attributed?

One important point to be remembered is that it was in the interests of many influential social groups that prohibition of certain substances be maintained. Using my analysis of the situation in Canada and the U.S. as a basis, those groups are listed in the order of their appearance (along with their particular interests) in the public courts or in the corridors of political power.

l. The first group to noisily demonstrate its opposition to any liberalisation of drugs were the police - police corps at all levels, federal, provincial, municipal - but the special narcotics squads in particular measure. Those special squads, as we all know, derive considerable prestige from their international contacts and their successes. The discourse of the police forces proved to be hypocritical to say the least (including their statements to the effect that the situation was under control, or could be) demonstrating a moral fundamentalism which really had to be heard first hand in order to be believed. The influence of the police corps with the governments, the Ministry of Justice and the Ministry of the Interior, etc. is well known...and they often have a particular and secret power over other departments in the State government. The police lobby is utilised at the national level, often with international repercussions. In short, in some countries, the police justify any means used (including exag

gerated or distorted information in the dossiers, public accusation, and so fort to discredit supporters of liberalisation of the drug laws.

2. The second bastion of resistance to change were the physicians. The medical profession expressed indignation, in the 1960s, that the young and individuals of doubtful appearance considered themselves capable of recognising the intoxicating, analgesic or euphoria-producing qualities of some drugs - even discovering pharmaceutical antidotes (valium, for example) for the effects of a "bad trip". That profession refused to concern itself with the new problems presented by that use. Only a very small number of general practitioners and a few psychiatrists and pharmacologists - who were incidentally roundly condemned by their colleagues - "went out into the streets" in order to provide assistance to users. Also, a few social workers set up information centres and a few emergency clinics and ambulatory services. On the whole, the profession denied that the problem existed - or at least that it concerned them - thus sending the users back to the criminal courts and contributing to the strengthening of the prohi

bitionist position.

3. Pharmacists also took particular umbrage that individuals were administering their own drugs without professional advice, even using substances not included in the pharmacists' area of competence. We might also add that this particular professional group had another reason to feel threatened; a certain sector of drug users were attempting to dissuade the public from using "chemical drugs" in favour of "natural drugs". Also, many users and members of the alternative culture, when confronted with the alleged noxiousness of "street" or illegal drugs, replied by denouncing the all-too-real negative effects of many normally-accepted medicines.

4. Among the most threatened co-operative groups making themselves heard and applying political pressure in the form of extortion or blackmail, must be included the pharmaceutical companies. Representatives of the larger ones, like Roche, even took the trouble to send representatives to personally defend their corporations before some of the inquiry commissions which were about to denounce the habit-forming effects of their products.

5. The distillers and brewers, besides using their lobbies to influence politicians (who have all profited from the alcohol industry) began a campaign to change any impression of irresponsibility the public might have formed of them, giving examples of their good will. In the 1970s, after reports of various commissions had denounced the negative effects of alcohol, some brewers and distillers actually began preaching moderation - moderation, but not abstention!

6. The tobacco industry also put pressures on the politicians. In fact, when irrefutable proof was provided of the negative effects of cigarette smoking, representatives of some of the companies came to plead their case, reasoning that they had considerably reduced the level of nicotine in their products and that, besides, it was not fair to compare a drug which had become accepted and was social custom. and thus under social control, to those substances the degree of noxiousness of which was still unknown, and its use still marginal. However, the tobacco industry's most convincing argument struck the governments at their most vulnerable point : the large employment sectors which would disappear should tobacco consumption diminish, or should the consumption of the nicotine cigarette be compromised by competition from, say, a cigarette of cannabis derivatives.

7. The last group to appear before the national commissions studying the drug problem was made up of those I shall call the moral enterprises - the AA, the NA, parents' groups, representatives of certain churches, even members or representatives of some of the social professions (associations of social workers, educators, psychologists, psychiatrists, lawyers, magistrates from the juvenile courts) - all of which made known their indignation and dismay at the possibility that the drug laws might be relaxed. At all costs, liberalisation had to be opposed.

Those groups represented a large number of people, but and above all, they represented a great deal of influence and power in the form of political pressure. The distillers, brewers, pharmaceutical laboratories and tobacco industry were extremely effective in persuading the political parties to protect their interests when the subject was raised of the electoral contributions often made by those enterprises. And then, governments able to afford seriously antagonising the large professional corporations are few and far between. It would be impossible to completely disregard the interests of the moral enterprises and social professions (which in certain instances were the very same groups which had sounded the alarm causing the national enquiries in the first place), as they represent a considerable sector of the electorate. Would those power groups, those interest groups, which have declared themselves strongly in favour of penal regulation of the use and sale of certain substances for the past ten ye

ars in France, fifteen in Canada, the U.S., Great Britain, the Netherlands, New Zealand, Australia, etc., still do so today? If the answer to that question is yes, would the States listen as attentively to them now as they did then? Or, would other groups, using a different language, calling for decriminalisation or the abolition of prohibition, succeed in making themselves heard. I think the latter would be true. But our analysis, if it is to be serious and conclusive, must also take into account the situation particular to each country. The answers, thus, will certainly not be same everywhere. One thing is certain however; if we want to change the laws, this analysis must be made. We must decide who are our allies and who are still behaving like partisans of prohibition.

RESISTANCE ON THE INTERNATIONAL LEVEL

More than 70 years have passed since the first international treaties on drugs were signed in 1912. Before that date, many European countries (notably France and the Netherlands) had not made criminal the use of many of the substances prohibited today, whereas the Scandinavian and Anglo-Saxon countries had already made recourse to penal law as regards the use of many of them, making simple possession a crime.

Since 1912, the date of the first treaty, there has been a constant growth in :

1. The number of countries signing international agreements on drug control;

2. The number of substances prohibited; and

3. The number of acts forbidden by national drug statutes.

The mechanisms of police, judiciary and penal control in the countries which signed the accords have progressively expanded and are intent on changing the object of control from traffic to user. Drug policy has become centralised, emanating progressively more from the United Nations. It is the American drug policy which is becoming prevalent in the member countries. The Drug Enforcement Administration has become the international model for police control in drug matters (Hulsman, 1983, p. 273). The 1961 Convention in particular (but others as well) now constitutes a basic bulwark of resistance to changing the drug laws, not only in the various subscriber nations, but in other countries as well, since American imperialism or moral pressure exerted by the member States themselves through those international agreements, affect the producer countries.

In a remarkable article on drug policy and its negative effects, Louk Hulsman, Professor of Criminal Law at Erasmus University in Rotterdam, stressed the essential importance of not losing sight either of the international context in which policies develop, or the legislative process of each State. All sorts of groups, and for all sorts of reasons - some religious, some moral, others in the interests of protecting commercial or professional interests - are responsible for prohibition. Those groups include :

"(1) missionaries and people who, in the name of humanitarianism and morality, have taken up the fight against opium; (2) plenipotentiaries in countries such as China and America who have a commercial interest in the regulation of that product and its movement; (3) people who favour international co-operation on principle; (4) American agents intent on maintaining the position acquired during the prohibition of alcohol, and (5) plenipotentiaries in the Third World countries making up the modernist sector" (1983, p. 276).

According to Hulsman, "it is difficult to understand how these pressure groups, which during certain periods are actually very small, have succeeded in internationally imposing their views - which are against the interests of large populations. If we are to understand, we must once again examine the international context". It is extremely difficult for groups of private citizens or individual nations to obtain correct information on what is going on in the United Nations at the time of large convention discussions on drugs. It is even more difficult to impose the interests of groups, even if those groups represent the majority. It is possible to influence international legislative processes only if the opposition groups possess sufficient power and have mastered the international political language" (Ibid., p. 277).

It is essential to remember that, among the factors which have drawn the northern and developed countries into the fight against drugs - or rather, against certain drugs - is the North-South conflict, the conflict between the developed and the developing countries. Thus, at the beginning - once more, according to Hulsman - the conventions were concerned exclusively with 'Third World drugs', and today, in Canada and the United States, it is still against "their drugs" that prohibition is directed. More recently, added to the national and international factors of resistance to ending prohibition, is the fact that whole "sectors of our national societies benefit from the illegality of certain substances. Those sectors include terrorist groups and public powers which utilise the criminal channels of drug trafficking and arms dealing" (often the same channels) to back up their demands and decisions (Hulsman, op.cit., p. 277).

IN LIEU OF PROHIBITION

It is absolutely essential that prohibition - which has been proven ineffective as well as negative - be substituted by a State licensing system for the regulation of the supply, quality and distribution of those drugs which are today prohibited.

That transformation would have to be on an extensive national, and perhaps even international, scale if illegal trade and all the ills associated with it are to be eliminated.

Society as a whole as well as the individual must become properly informed on drugs, if misinformation is to be put to an end, and adequate controls provided, similar to those on cigarettes and alcohol. Power must not be left in the hands of international agents or the police - since it is by now a well-established fact that drug laws have done much more harm, everywhere, than the drugs themselves.