Report drafted by Franco Corleone

(Continuation of text ARC-986.ING)

4. ... BUT JUST WHAT IS A DRUG?

5. REPRESSION OR LEGALISATION

International Conventions

The Spirit of Law no. 685

The Instructions of the Constitutional Court

The Moderate Quantity and its "Friends"

The Experience of the Netherlands

The Case of Liverpool

6. DRUGS AS A SOCIAL PHENOMENON

The Data of the Permanent Observer on the Drug Phenomenon

Age

The Dead

The School

Work

AIDS

How Many Are There?

Drugs As A Source of Income and Police Operations

Criminality Among Minors

Prison

Are The Communities a Remedy?

7. THE PROPOSALS OF THE RADICALS

The Debate on the Revision of Law no.685 of 1975

8. CONCLUSION

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4. ...BUT JUST WHAT IS A DRUG?

Since we want to confront this matter by following serious scientific points, we are reprinting here an unpublished fragment of a study soon to be published by Prof. Luigi Del Gatto. Prof. Del Gatto, a medical doctor and a university professor of endocrinology, has worked for years for the World Health Organisation. He is one of the founders of the Radical Anti-prohibition Committee and a member of the Drug Policy Foundation.

Undoubtedly when one is faced with so much and often so dramatic news about "drugs", one naturally tends to ask oneself just what a drug is, how one arrives at the concept of a drug, how they can be defined and classified. From the medical and pharmacological point of view the disquisition on the way they are defined and classified appears to be extremely arbitrary given the protean effects of drugs, the variable conditions under which they are consumed and the social contexts in which they are used.

An unequivocal agreement among the concept, definition and classification of drugs is not even conceivable. In truth, if one were ever to want to trace its historical evolution one could not escape the need to review "in the field" the concepts, the definitions and the classifications themselves. One would not be able to do without continual verification and to form for one self over and over again the said notions according to the scientific perspective from which one was observing the phenomenon of drug addiction, of how it is perceived and experienced by public opinion in general and by medico-therapeutic opinion in particular, with even quite distinct consequences for the techniques of approach and treatment of them.

(...) Given the very practical consequences, the problem only appears to be a formal one. Therefore it would be opportune to examine the concept, the definition and the classification of drugs. It is not at all out of place to recall that the meaning we give today to the word pharmaceutical is reductive in comparison to the past when it was used in many and varying definitions which would certainly include several of the definitions, implicit if not explicit, which we today try to separate by calling them "drugs". Chapter XVIII of the Apocalypse uses the word "pharmaceutical" for the arts and charms by which the Babylonians seduced and conquered the peoples of the earth.

From Plato's "Laws" we learn that the term "pharmaceutical" was applied to everything that in the form of chants, magic formulas, amulets and declamations could lessen suffering - a definition which was passed on through the centuries and which is perhaps the basis of a certain drug culture.

To return to our times, it would be opportune to consult the definitions officially proposed by the World Health Organisation, which could at least serve to give uniformity as a general consensus to the possible definitions on the basis of a modern concept based on observation and experimentation of experimental pharmacology. In recalling the first and most often cited of these - that which goes back to 1957 (WHO Expert Comm. on Addiction - Producing drugs ed. Techn. Rep. Ser. no.16, WHO, Geneva 1957), we cannot (help) underscoring both the meagre scientific coherence and the tautological basis.

For drug one must understand any substance that has:

the capacity to excite an excessive desire or downright compulsion to continue its consumption and to procure it by any means;

the capacity to provoke (tolerance) and thus to induce the consumption of ever greater quantities;

the capacity to induce physical or "psychological" addiction;

the capacity, in conclusion, to cause harmful effects to the individual and to society.

(...) Not only is the definition of a drug scarcely coherent, but it traces back that datum to the term "narcotic" which is hardly applicable to other drugs, for example, LSD Or even marijuana.

The WHO had to revise several times its definitions of terms such as "use" and "abuse" up until the time it adopted the definition of "drug" as "addiction" according to the formulation of Eddy Edwards G. et al., ("Drug Problems in the Socio-Cultural Context", WHO, Geneva, 1980): "One defines as a drug any substance capable determining a state of physical or psychological addiction or both as a result of its administration periodically or continuously". This is not the place to insist on the ambiguity based on tautology of the definitions accepted by the WHO, according to which psychological addiction is "a condition in which the substance causes a feeling of satisfaction and a psychic drive..." whereas the "physical" variety is: "that condition that is manifested in somatic disturbances whenever the administration of the substance is interrupted". This definition, which almost lapses into the illogical, sees addiction in function of the crises of abstinence which, in turn, become the basis for the defi

nition of the term "drug". Typical of this irrationality is the definition of addiction which is called "social", that is, as "the adaptation of the individual to his condition of drug addiction" (Mannaioni, P.F., "Le tossicodependenze", Piccin Editore, Padua, 1980).

The fact of defining drugs in terms of addiction is at least a necessary paradigmatic choice, even if it ought to be indicated that many substances included in the pharmacopea and presently prescribed can be addictive, and with at least a basis of empirical observation and verification such that the WHO itself, as we have already mentioned, has abandoned the tern "abuse" which with which it used to define the periodic or sporadic self-administration of a substance in ways that derive from medical ones or of social consumption itself in a specific cultural context. From which one can see the extra-scientific function of the definition by which "abuse" means all uses that are illicit (extra-legal), improper (extra-therapeutic) or excessive (more than necessary) and in any case outside the norms of a given society (unsanctioned).

Therefore the definition in terms of addiction can be the overcoming of the sociopathological basis of the term "abuse" which refers rather to the degree of social acceptability (as in the case of alcohol drinkers in the Judeo-Christian culture or the cannabis smokers of the Indo-North-African culture).

The ambivalence of the term "abuse", which is perhaps the at least intuitive interpretation of "excess", takes on a stronger normative or moral sense if replaced by the terms "misuse" or even "deviant use" - all definitions which are suitable to any pharmaceutical (indicated in English by the word "drug"), that is to "any substance capable of inducing any kind of functional change whatever in any living organism whatever" and thus to be understood in the widest sense of "bioactive substance" and not necessarily as a medicament. (Nomenclature and Classification of

Drug and Alcohol-Related Problems: WHO Memorandum, Bull of WHO 59,335. 1981).

The difficulties in working out terminology encountered by the indubitably highly competent experts of the WHO should be the very thing to teach us the problematic nature of defining certain substances as "drugs" considering that the various substances which from time to time are commonly called "drugs", "poisons", "medicines", and "food additives" are or would be all definable as "pharmaceuticals", and whose concepts and definitions could be handled in terms of pharmaceuticals.

(...) Even less can the fact of tolerance, which is certainly typical of the larger part of drugs (as long as they are taken within certain limits), be adopted as a distinction on which to classify certain substances as drugs and others simply as pharmaceuticals. It is a known fact - and one that makes the question of tolerance aspecific - that the effects of a constant dose of a chemical substance decrease progressively, or to put it contrarily, that the dose must be progressively increased in order to obtain effects as intense as the first administration of any chemical substance (A. Goodman et al., editors, The Pharmacological Thesis of Therapeutics. McMollar Publishing Co. 1985).

That tolerance can be found in the use of all drugs can be asserted almost with certainty. When it appears to be missing it means that it is at a very low level or that it is very slow to begin taking effect (as in the case of alcohol), or its effect is very short-lived (as shown in the case of LSD whose users only take it again after a lapse of several days), or else it doesn't take place because all traces of the drug disappear from the organism very quickly (as seems to be the case with cocaine).

Many pharmaceuticals (the ones understood to be such because used medicinally) show the existence of tolerance (which therefore is not a specific feature of drugs) such as the ones that act on the central nervous system like the tranquillisers and anti-depressants, and also the famous ones that act on the vegetative nervous system like atropine and nicotine and even the pharmaceuticals directly active on the peripheral level (such as nitrites).

It is a known fact that this tolerance - without the least aspecific pharmacological basis for defining a drug - is not manifested for all the effects of a drug, precisely as can be seen in the case of the opiates with their almost total tolerance of analgesic and euphoric effects, partial tolerance of the sedative ones, the dilation of the pupils and depression of the respiratory system and almost no tolerance of the constipating effects.

On the other hand, to conclude, there is no unequivocal explanation for pharmacological tolerance which can be verified in a variety of ways. For example, by intensification, and in that case one speaks of trochiphylaxis or of "desensitising" and this appears to be connected to an altered reaction to the reception of the substance as happens with cholinergic pharmaceuticals active on the level of the neuromuscular synapses (acetylcholine) or of the ganglia (with nicotine).

Without going into further details we are interested in emphasising that if, on the one hand, tolerance cannot be considered the hallmark of a drug in the variety of its manifestations (torchipilasi, post-mediatoriale and anti-medatoriale tolerance, metabolic pharmaceutical, etc.), on the other hand it indicates how drugs ought to be thought of and treated like all other pharmaceuticals, which would give scientific rationality a place in a more serene and equitable interpretation of the "drugs" phenomenon. It would be discovered how the administration of one pharmaceutical induces the metabolic tolerance of many other pharmaceuticals, even when not

chemically related, and this would explain many cases of so-called overdoses that probably result from "inductional" tolerance. On the other hand this same tolerance could be considered an aspect of that more general tolerance that could be called pharmaco-kinetic in that it can be attributed to the kinetic processes of the pharmaceutical itself such as absorption (as in the typical case of arsenic mithriditism), elimination, etc.

Several drugs, like alcohol and barbiturates (often found together in deaths from overdose) indicate a typical "inductional" tolerance which is superimposed on the "mediatorial" tolerance, making very complex the interpretation of the global picture resulting from the sum of the elements.

It has been experimentally observed that when a pharmaceutical or a drug affect behaviour, there can be a tolerance - which might be called behavioural - that is established all the more rapidly according to the "price" that may have to be paid for the effect: Typical is the case of the alcoholic who may succeed very well in masking his condition of alcoholic intoxication (Dews, I.B., Behavioral Tolerance, in Krasnegor, N.A. [ed.] N.I.D.A. 1977).

In this type of tolerance it is best to include the larger category of "conditioned" tolerances with the following characteristics:

1) of developing more rapidly if induced, given a constant ambience;

2) of its accelerated reacquistion with repeated cycles of administration and the ability to enter into the "infernal pharmaceutical games" that some are used to playing. If neither addiction seen as withdrawal crises, nor tolerance provide the basis for defining and characterising "drugs" as different from ordinary pharmaceuticals, what must be emphasised is that "both the one and the other remain to be studied" (Goodman, op. cit.) and if anything one must underscore their distinct "homeostatic" character which paradoxically makes drugs among pharmaceuticals the best "tolerated" by the organism as the mass experience - with millions of consumers throughout the world - demonstrates.

It is a fact which is never discussed, let alone emphasised, that so massive an experiment has never been made in the history of mankind - and it is such as to put in doubt the most meticulous pharmacological experiments of the last century.

(...) If the preceding considerations bring us to the conclusion that the conception and definition of a drug can only be left to historical evolution and the work of pharmacological research, and thus is to be included in what happens with all other pharmaceuticals, thus opening the way for the necessary scientific reflection and the widening of research itself, the classification must have a heuristic and an operative value. In brief, it must serve to put the cognitive work in a framework and help to make decisions which will protect the health of the individual and the common good of the collectivity.

For these reasons the universally accepted tables appear to be dictated by socio-juridical presuppositions and are in error from a pharmacological point of view. An example is Law 685 of 1975 whose first table classifies with no distinctions the opiates and their kind which are psycho-depressives together with coca and its kind which are psycho-stimulants. Tables III and IV subdivide the substances that induce strong physical and/or psychological addiction from those which induce a weaker addiction - on the basis therefore of that concept of addiction whose highly equivocal interpretation we have revealed and which is certainly not capable of distinguishing drugs from pharmaceuticals. Tables V and VI, next, distinguish substances according to the risk of abuse - a concept, this, which has been abandoned by the WHO after the various vicissitudes of classification and which, furthermore, do not include the notoriously abused substances alcohol and tobacco.

Other criteria are necessary for classifying drugs, and they can truly be many.

However, having discarded the socio-juridic one for the reasons already cited, two others appear to be justifiable in practice: one is the pharamcological criterium and the other the anthropological criterium that profits from the experiences, at times thousands of years old, of the use of substances and the conditions under which they were used, or at least, pharmacological criteria corroborated by historical-anthropological or more simply by cultural ones. With regard to the pharmacological scheme, before expounding it we would like to make a preliminary observation: in the extreme variability of the effects produced by drugs, one thing they have in common is the ability to protect the individual in the sense that they alleviate situations of suffering or stress and facilitate a more or less successful "evasion".

In the cases were a chemical addiction is formed, it appears as a manifestation of the much vaster pathology of social maladaptation on a par with suicide, criminal behaviour, or even heart attacks etc.

The behavioural proof in opposition to this "evasive" function would be the observation made by psychiatrists that the most typical drugs, as it were - the opiates, alcohol, solvents, hallucinogens, etc. - are not used so much for this or that particular pharmacological effect as for their capacity to induce "intoxication", "euphoria", or to use common English slang, "a high".

The anthropologist Zutt (in << Aspetti sociali della tossicomania >>, It. Med. Soc. Ed., << Quaderno degli incontri >> no.34, 1965) would categorise this "high" under the wider anthropological concept of "intoxication", understood as one the involuntary modes of our being and our becoming, on a par with hunger, thirst, sexual desire, etc. to the point that the specific effects of the drug, from sedation to sleep to drunkenness to alterations of perception, would be inevitable collateral effects, neither sought after nor even less enjoyable.

Nevertheless, for the purposes of classification, one cannot avoid choosing the predominant effect of a drug understood as that effect which, under habitual doses, appears to be its terminal effect and which, in any case, is manifested in the larger number of the subjects who use it even if there is the possibility of a paradoxical reaction such as extreme sleepiness induced by caffeine or amphetamines.

On these conditions one can propose three tables:

the first includes the psycho-depressive type of drugs;

the second those of the psycho-stimulating-depressive type.

the third those of the psycho-alternating type.

With regard to Table I, the terms "narcotic" and "analgesic-narcotic" are abandoned both because analgesia is not precisely the effect sought after, nor is the narcosis identifiable with an opium ataraxic. It includes the opiates, the hypno-tranquillisers, the analgesic-antipyretic, and finally, the intoxicants: among these last, alcoholics such as beer and wine, and the inhalants such as ether and amido-nitrite.

Table II lists the psycho-stimulants, including the various amphetamines and cocaine of the adrenergic sub-type, while the purinergic sub-type includes caffeine. On the experimental level nicotine behaves like a perfect drug in the sense that it has a sedative effect on stimulated animals and a stimulating effect on animals under sedation. (Baer, << Tobacco Dependency and its Basis >>, in the P.C. Newsletter, Jan.9, 1980).

Table III includes the diverse perception-altering substances, that is, those that give an altered perception of real objects and are not therefore real hallucinations which would be perceptions that have no objects but which are recognised as objects by the subject and which commonly and most improperly are called hallucinogens, psychedelics, and psychomimetic, etc. Only rarely do these cause a real psychosis uncriticised by the subject. Aside from cannabis products there are two minor drugs - nutmeg and kava-kava, classified as such for their ability to alter perception as well as for the common pyranoid structure of their active elements (mesticina, kawaina and yangonina).

In the same table there are the delirium-producing substances, in general with a colinergic structure such as the atropines, several parkinsons and even fenciclidina (PCP). Among the non-cholinergic delirium producers one must place alcool cronico. All together they can induce a schizophrenic condition that is indistinguishable from true schizophrenia, unlike fenciclidina, a major perception-altering serotoninergic which mimes schizophrenia only superficially.

Another possible and preferable classification is the one that takes the anthropological aspects into consideration and above all the matter of infusions and aqueous extracts of coca and tea leaves, coco beans and opium seeds which are widely used in various cultural-geographic regions. These tables recommend themselves also for their possibility of indicating a far less risky cultural use of these substances with regard to the active ingredients and in the hope of promoting what Peter Scoeller calls "cultural immunity".

But aside from the completeness of the classification and its plausibility and scientific objectivity, what experience by now suggests to us is that a pharmaceutical can or cannot assume the connotations of a drug according to the reaction it encounters in the individual response.

Apropos of this one can also introduce the concept of "vulnerability", that is the biological basis for a smaller or greater resistance of the individual to the effects of one or another of the substances (NIDA, << Biological Vulnerability to Drug Abuse >> M. 8, 1988). What results from the above is that the wisest and most suitable thing would be a real and true control of pharmaceuticals (Del Gatto: << Farmacovigilanza >>, September 1987) to be organised by means of technico-scientific structures spread throughout the regions (Regional Pharmacological Observers, foreseen in the bill of Rutelli et al, of December 18, 1987: Chamber of Deputies Act no. 2086) to confront scientifically the question of "drugs".

5. REPRESSION OR LEGALISATION

The International Conventions

The international conventions that have largely provided the basis for the legislation in many countries are the ones established in New York on March 30, 1961 (and ratified as Law 412 of June 5, 1974) and the Vienna ones of February 21, 1971 (ratified as Law 385 of May 25, 1981) and of December 19, 1988 (not yet ratified).

For the purposes of the present report, we consider it important to examine only those parts of the agreements concerned with punishment. In this we follow the lead of Sen. Pierluigi Onorato in his address to the conference on "The Penalties of Drugs" (organised by the State Reform Centre and held in Rome on April 28, 1989) and thus we too observe that the legislative attitude prior to Law 685 of 1985 was legitimated by the Single Convention of New York which penalised both the detention and the use of drugs. Art. 36 of that convention states: "Compatibly with the its own constitutional norms, each party will adopt the necessary measures so that the cultivation and production, the manufacture, the extraction, the preparation, the detention, the offering, the putting on sale, the distribution, the purchase, the sale, the consignment for any purpose whatsoever, the mediation, the forwarding, the dispatching in transit, the transportation, the importation and the exportation of narcotics that does not conf

orm to the dispositions of the present convention, or any act of deputising by the said party contrary to the dispositions of the present convention, will be considered punishable infractions whenever they are committed intentionally and with the serious infractions always liable to an adequate penalty, in particular penalties that foresee imprisonment and other punishments by detention". As is well known, the interpretation of the words "serious infractions" made by our legislator was not a rigid one and the possession and use of moderate quantities of narcotics was not considered to be such. This norm, therefore, ratified in 1974, was one of the points of reference of Law 685 which was approved in 1975 and also included the Vienna Convention which had taken place four years earlier but at the time had not yet been ratified. In this sense, Law 685 greatly insisted on prevention, cure and rehabilitation. In fact, Art. 22 of the convention established that: "Subordinate to their respective constitutions, eac

h party will consider to be punishable violations all acts intentionally committed that are infractions of a law or a regulation adopted as an obligation deriving from the present convention and will take the measures necessary to see that serious violations are suitably punished, for example, with a term of detention or another measure limiting liberty.

Independently of the dispositions foreseen in the preceding point, when a number of people have committed a number of violations abusing the use of psychotropic substances, instead of condemning them or pronouncing a penal sanction on them, or as an accessory penalty to a penal sanction, the parties may  subject these people to treatments, to educational measures,  to follow-up cures, to social re-adaptation and  re-education (...)". According to the most widespread opinion regarding the law under discussion, the new dispositions do not violate what was established by the convention. In our opinion, however, the interpretation of the term "serious" is being forced by including in it behaviour considered such even when it is objectively not serious except for the person who commits the action. Apropos of this, it is clear that the norm, which first referred to "infractions" and then refers to "violations", does not mean in either case to judge a subjective comportment, but rather behaviour that vi

olates a regulation which must necessarily take legislative form. The new Vienna Convention passed last year, which was reconvened more than once by the majority to approve the new norms under discussion, strongly insists on the possibility of creating adequate structures for the rehabilitation of drug addicts but does not provide for the necessity, let alone the obligation, of punishing those who use narcotics. When personal consumption is mentioned, it refers to the "violation of the dispositions of the 1961 convention as modified by the 1971 convention" (art.3, par.2); furthermore, "the necessary measures to confer the character of a penal infraction" on the detention, purchase, and cultivation of narcotic substances must be taken in a way "conforming to internal penal law" and "when the act has been intentionally committed".

We find this echoed in the statement of Judge Gianfranco Viglietta: << But the adherence to such conventions, despite the fact that the terms "detention" and "purchase" are among the punishable infractions, does not oblige us to make consumption subject to penalties (let alone imprisonment) inasmuch as mention is made of "adequate punishment" - in principle, detention - only for "serious infractions", which obviously are those for the drug traffic >> (in <>, Franco Angeli, 1982).

Letters c) and d) of art. 2, par. 3, provide for the possibility ("the parties may particularly provide") of structures to rehabilitate violators of a minor kind which may constitute alternatives to penal sanctions only when this possibility is foreseen. This, therefore, is neither obligatory or necessary, and the reasons that many people offer to justify obligatory cures is negated by experience which shows us that cures are all the more efficacious for being freely chosen.

The dispositions in question state:

<< c) Despite the dispositions of the preceding paragraphs, in cases of minor infractions the parties may substitute a sentence or a penal sanction with particular provisions for re-education, re-adaptation and social rehabilitation as well as cures and follow-up treatments when the violation is committed by a drug addict;

d) The parties can provide for cures, re-education, follow-up treatments, re-adaptation or social rehabilitation of the offender to substitute for or add to a sentence or a penalty for an accusation made in conformity with the dispositions of par. 2 of the present article.>>

The second Vienna Convention is certainly more repressive than the preceding ones but, independently of the evaluations expressed above, it does not substitute for the independence and the autonomy of the parties, which is to say, of the states.

The Spirit of Law No. 685

Law 685 of 1975 subdivides the material treated into three parts: the headings I to VII treat of the administrational disciplines, heading VIII refers to penal disciplines while prevention and treatment are dealt with in headings IX to XI.

This norm has contributed important innovations with respect to the preceding law of October 22, 1954, no.1041.

In the first place it widens the range of substances considered narcotic and psychotropic with the addition of the amphetamines, the barbiturates, the tranquillisers and the hallucinogens.

It also establishes the non-penalisation for the purchase and detention of moderate quantities of narcotics in contrast to harder penalties for big drugs dealers. And lastly it puts emphasis on greater efforts for the social rehabilitation of the drug addict by means of socio-sanitary preventive measures entrusted to local authorities.

Beginning our analysis of the text with the problems deriving from the new concept of a moderate quantity, it now seems that the reasons are no longer valid which at one time succeeded in making the parties favour removal of the penalties. During the last decade the operation of this law has been much criticised; it has been found guilty of permitting an indiscriminate use of drugs and, consequently, of having consolidated the vertiginous increase in drug addicts.

Here is the text of article 80 of Law 685:

"No punishment is foreseen for persons who illicitly acquire or otherwise possess narcotic or psychotropic substances referred to in Table I of article 12 with the intention of using them personally for therapeutic purposes as long as the quantities of the substances does not appreciably exceed the needs of the cure in relation to the particular conditions of the subject.

"Equally, no punishment is foreseen for persons who illicitly obtain or otherwise possess moderate quantities for non-therapeutic personal use or who for any reason has possessed said substances and has made strictly personal use of them (...)"

It would be good to draw a parallel with the regulations previously in effect in order to understand better the socio-cultural impulses that have given rise to the so much criticised attitude of removing penalties for drugs.

Paragraph 4 of article 6 of Law 1041 of 1954 states the following: "Anyone who without authorisation, sells, cedes, exports, imports, sends by transit, procures for others, employs or otherwise possesses substances or preparations listed in the catalogue of narcotics will be punished with imprisonment from three to eight years and with fines ranging from 300,000 to 4 million lire (...)".

The more rigorous interpretation that was given to that "otherwise possesses" has led to involving practically all drugs users in the obligation of penal sanctions.

Even the users of so-called light drugs - if found in the possession of only minimal quantities of narcotic substances - according to the prevailing interpretation were destined to become involved in the rigours of penal norms. Therefore, from this standpoint there was no difference between drug dealers and consumers. The judge was limited entirely to the possibility of varying the sentence within the minimum and maximum limits indicated. Taking these presuppositions as a point of departure, one can understand the wishes of the legislator, and with him a large part of public opinion: to try, on the one hand, to establish a radical difference between the positions of narcotics consumer and dealer, and on the other hand to create a system of structures to prevent, cure and rehabilitate addicts. During the debate on Law 685 in the united Health and Justice Commissions in the Chamber, the spirit of the Parliamentary addresses of practically all groups was almost unequivocal. The Christian Democrat Maria Ele

tta Martini who wrote the report of the IVth Justice Commission of the Chamber said in the November 19, 1975 session: "It is evident that non-punishment does not mean that the act under discussion is legitimate... thus it is not true that there is some kind of incitement to use drugs in this sense, because what constitutes the illicit is what is found in the possession of the subject before making or not making any evaluation of periodicity... The general question is that anyone found in possession of drugs has acted illicitly; and secondly it is the police magistrate who decides whether the person in question is or is not punishable. In general he is punishable, but in certain conditions he is not. This depends on the amount of drugs that is found in his possession".

Even more explicit were the words of the erstwhile Under-secretary of Justice, the DC Dell'Andro: "... the problem arises just because the addict, as such, does not harm in any way the property of society, in which case he would be guilty of a penal offence, but that he does harm to his own person... Aside from the appeal made to our judicial system, there is also the entirely negative experience of the previous laws calling for the punishment of drug users. All of this did nothing but stimulate the spread of drugs inasmuch as penal sanctions gave young people an incentive to drug themselves more and more often. Here then the constitutional principle must be tested against historical experience: the preceding laws failed because they imposed penalties".

With Law 685 various sanctions were changed: there is in fact a distinction between illicit behaviour which is important from a penal standpoint (articles 71 - 77) and illicit behaviour which is important only for the purposes of cure and rehabilitation.

The sanctions were certainly not light ones. Judge Gianfranco Viglietta in reference to that stated: "One can confidently conclude that the degrees of punishment provided for by Law 685 are certainly the most severe in Europe. It is true, in fact, that only Austria and Denmark exclude penalties for the possession of drugs in quantities amounting to provisions for a week's personal use, but in other countries either there is no obligatory penal action and the exemption from punishment for users is sanctioned by circulars issued by the authorities in charge of penal action, or the minimum punishment written into law is a simple fine" (in << Droga, tossicodipendenza, legge >>, cit.).

Within these distinctions there are also further subdivisions intended for grading the seriousness of the punishments, while there are provisions for increasing the severity of the sanctions inflicted by the penal code for conspiracy for trafficking in narcotic substances. For trafficking the penalties have been increased over the ones sanctioned by the previous law - no. 1014 of 1954 - and for small dealers in moderate quantities the penalties have been made even lighter than in the previous case.

Still referring to the 1975 debate in the Chamber, we read that at the basis of the regulations "...there is a fundamental approach: to distinguish between the dealer and the consumer, particularly in regard to the penal norms... this above all because it is a question of a significant act of justice which the legislator cannot evade...". "Only by distinguishing between these situations can one break the chain of <> that now links the dealer, the small pusher and the consumer who are, so to speak, united by a single prospect in that they are all still punished by a single norm and a single penalty".

Apropos of this, here are the words of Under-Secretary Dell'Andro: "...regulating drug addiction in all cases according to penaly sanctioned social deviations does not necessarily contribute to decreasing the incidence of such behaviour in the social body, but has distinctly negative effects. In this perspective it makes no sense to use penal sanctions against the consumer whose deviant behaviour is determined and strengthened by the available supply, whereas it is this latter against which rigorously repressive measures should be concentrated. Thus one would be pursuing the goal of keeping the drugs away from the man rather than keeping the man away from the drugs".

If the texts of the international agreements that at the time regulated the selling and using of drugs are compared, one can also understand how the present choices - from which penalties have been removed, on the one side, and turned towards repression on the other - were almost unanimously shared and accepted on the international level too. (See art. 36, par.I, letter b of the Single Convention as it has been modified by the 1972 amendments protocol and art.22, par.I, letter b of the Vienna Convention.) The other point firmly desired and shared by the various political forces tended to the creation of a system of structures that would have the goal of prevention, cure and rehabilitation.

On this point, in fact, Law 1041 of 1954 limited itself to what was contained in article 21, which was: the police magistrate, on the request of the public security authorities or any other interested party and with previous medical certification, will order the commitment to a sanatorium or psychiatric hospital for a treatment of disintoxication of anyone who is dangerous to himself and others or creates public scandal because of serious psychic alterations due to the habitual abuse of narcotics".

But the serious limit of Law 685 of 1975 was precisely that was not able to make operative the structures for the assistance and the cure of drug addicts which it had indicated. Among these provisions were made for important structures which never functioned well. Of that sort we recall the regional committees for the prevention of drug addiction with the task of co-ordinating and controlling the organs and agencies authorised for the work of prevention (art. 90, par. 1) and the medical centres for social assistance built according to local needs (art. 90, par. 2). Numerous other undertakings were never realised despite the fact that regional councils could establish, according to the needs of the case, medical centres for social assistance (art. 92, par. 1) composed of doctors, psychologists, social assistants and educators having specific jurisdiction and to undertake specific cures and rehabilitation after the certification of the state of addiction of the subjects in question.

The undertakings were to be tailored to the individuality of the addicts. Instead - when there were any at all - they showed themselves to be of a non-individual and mass kind. This general deficiency inevitably resulted in the creation of private religious or lay organisations in a sphere outside that of the institutions.

In fact, drug addicts were now entrusted to psychiatric hospitals, now to regional centres for the prevention and cure of drug addiction, now to centres for narcotic poisoning established in hospitals, whereas in other places the initiatives were limited to providing study groups with the general tasks of prevention and providing information.

The Instructions of the Constitutional Court

The Constitutional Court emphasised more than once that the aim of Law 685/75 was prevention and rehabilitation and that the institutions were obliged to operate towards this end.

An analysis of the judicial pronouncements on Law 685/75 regarding the interpretations it received by those who applied it make it easy to note the particular attention that was given to this problem.

In sentence No.31 of February 22, 1983 (reiterated with ordinance No.243 of July 6, 1987), the court declared that there was no question of the legitimacy of the dispositions that with regard to the prevention, cure and rehabilitation of drug addiction had subjected the autonomous Regions and Provinces "to the directives, the approach and the co-ordination of the Ministry of Health" and which had given the State the power to establish "the criteria of approach and co-ordination".

This choice, which can be considered only apparently marginal, represents on the contrary the manifest will of the court to emphasise the particular value of these aspects of the anti-drug norms.

A question considered equally unfounded was the legitimacy of articles 103 and 107 of Law 685/75 that give the Ministry of Health the faculty of directly utilising the funds earmarked for the Regions for prevention, cure and rehabilitation "in the case of deficiencies of the regional organs" - in other words, to establish by their own decree "regional medical centres of social assistance" whenever the regional councils do not provide for these within the prescribed time limits. And, in fact, the creation of centres is among the international obligations assumed by the State in adopting opportune measures for the fight against drugs; these therefore constitute a duty that legitimates the State's power to surrogate. The utilisation of the funds is, in fact, a manifestation of the State's prerogative to guard and control. The sentences cited, even if they have a sectorial character for the specific questions of legitimacy raised by the judge of the first instance, make evident the will of the Constitutiona

l Court to express a clear opinion on the problem of rehabilitation and prevention even in the face of questions of undoubted constitutional relevance and delicacy such as respect for the autonomy of the local agencies and of the Regions, especially those under a special statute.

The sentences cited were the prelude to several more pronouncements on this subject much more precisely aimed.

The needs of a global legislative intervention concerning the fight against drug addiction was foreseen by the court with a sentence of an evidently admonitory character made on November 22, 1988 no.1044. The court, in rejecting the constitutional objection made by the Region of Emilia Romagna against the decree of April 1, 1988, no. 108 and converted with modifications into the law of June 1, 1988 no. 108, maintained the legality of the Interior Ministry's providing funds to municipalities, local sanitary units, private and volunteer associations for the social rehabilitation of drug addicts - considered legitimate in the face of the intentions to overcome the drug emergency that had motivated the emission of the legislative provision.

Having affirmed this much, the court noted, however, that the fight against drug addiction needed urgent legislative action based on a general socio-sanitary strategy that would involve the national and local authorities as well as private and public interest. "The law" the court stated, "will have to adopt the changes that have occurred to offer effective solutions on the level of fighting the drug market and on the level of prevention, cure and rehabilitation with the ensuing provision of health and social services throughout the country and able to establish a relationship with the situation of the drug addict and the consumer of narcotic substances".

The position of the court and the perspective and direction that it wanted to give with this sentence, by opening the prospect for the reform of Law 685, seem incontrovertible. The instructions are based on two fundamental principles: reinforce the battle against the drug dealers and prepare effective measures for prevention and rehabilitation.

Not only does the court not take into consideration (at the moment when it decides to indicate a future direction to be followed) the possibility of striking at the drug addict, but actually instructs the legislator to develop a field which had evidently been hardly considered: that of rehabilitation and prevention.

In fact, the measures dictated in the decree of April 22, 1985, no.297, valid for the three-year period 1985-87 and extended by decree 108 of 1988 to the three-year period 1988-90, is immune to the censure of unconstitutionality, according to the court, only in so far as it is a temporary decree.

Still with regard to the same sentence, the judges conclude that: "The delay in (writing) a law beyond all reasonable time limits would make the present measures definitive which, since they are intended only to overcome the emergency, would be essentially or seriously inadequate with regard to the collaborating role of the autonomous local (authorities), wherefore this court, if asked to take the question in hand again, could consider the matter differently and draw the possible consequences".

The Moderate Quantity and its "Friends"

In July 1980, the then Minister of Health, the Socialist Aldo Aniasi, expressed his ideas in an interview with <> (a Rome daily, ed.): "Above all, we propose to define unequivocally what a <> is - one of the generic points of the present law that leaves too much to the discretion of the judges". Aniasi continues: "(...) to remove the penalties for hemp consumed in small quantities means at the same time to accentuate the rigours of the law, the energy of the police towards the large-scale dealers, against those who pull the strings of the market and who are the same for marijuana as for the much more fearful heroin".

Within the PSI (Socialist Party, ed.) this was certainly not an isolated position. Once again in July 1980 <> (the official Socialist daily, ed.) put this headline over an article: <>. Among other things the article stated: "The reasons for removing penalties are well known: on the one hand the derivatives of hemp are as harmful as alcohol and tobacco, and on the other, in breaking the circuit of the clandestine market of the non-drugs and that of heroin (...) we can hope to combat the black market which is truly responsible for deaths from heroin, to break the circuit that obliges drug addicts to become pushers and small-time delinquents just in order to procure their needed dose" (July 5, 1980).

On this point some Socialists had even more advanced positions than Aniasi. Without recalling the well-known position expressed by Claudio Martelli at that time (who in 1979 had signed, along with other Socialists, the Teodori bill for controlled distribution of drugs and the liberalisation of hemp), we will mention Mauro Seppia who presented a bill on September 30, 1980 (Chamber of Deputies Act no. 2030) which, besides reformulating the tables of Law 685/75, removed penalties for the possession of up to 10 grams of hashish and marijuana (art.10). The proposal was motivated in the presentation of the text that maintained that the goal to be pursued was "to not make a criminal of those who made personal use of narcotic substances. At the same time it is necessary to free the consumer from the discretionary factor regarding what was defined as a moderate quantity of the dose in his possession. Such an indeterminate factor of the offence under consideration and thus of the degree of punishment had led to u

njustifiable disparities of treatment in court (...)". The bill was signed, among others, by Labriola and Raffaelli (Socialist Party deputies, ed.).

On April 19, 1984 the Socialists presented a new bill (Chamber Act no.1606) to introduce norms regarding drug addiction; the first signer of the bill was Formica and among the others were Artioli, Aniasi, Marianetti, Piro, Di Donato and Spini.

On the question of the moderate quantity the bill held to the proposals of Sappia's text who was now one of the designers of the new bill. Art. 109 stated: "It is not a crime to purchase and possess Indian hemp in quantities not exceeding 10 grams. For quantities between 10 to 100 grams there is a fine ranging from 300,000 to one million lire.

"For quantities superior to 100 grams a fine applies ranging from 3 - 300 million lire, and in serious cases imprisonment from two to six years in addition to the pecuniary penalty".

It may also be useful here to recall the positions taken by several others of the majority in the recent past who today uphold the Craxi line. The Liberals had at once been marked by the proposals that Altissimo, Minister of Health in 1979, had tried to introduce into government circles and bind to the health reform program which was then getting underway: "If we could find the way for the public structures to control the administration of heroin, we could block the growth of the phenomenon and crimes against property would be reduced". This proposal was formalised in the Zanone-Altissimo bill presented on December 26, 1980. This provided for the removal of penalties for "anyone who buys or possesses narcotic or psychotropic substances for personal, non-therapeutic use on the condition that the quantity of said substances does not exceed four maximum individual daily doses" (art.1) and it established the method for controlled administration of heroin including its administration within the prisons (art.

8).

Also in 1980, the Republicans presented a bill (Olcese, Mamḿ, and Dutto, Chamber Act no.2035) for the construction of centres for the cure and rehabilitation of drug addicts. Today the Republicans sustain obligatory treatment for rehabilitation as an alternative to prison. At that time they underlined the complete respect of the drug addict's personal liberty (art.5) and the inalienable right to interrupt treatment at any time (art.7).

Much more recent is the surprising position of the Christian Democrats (DC, ed.) who, with the Bompiani bill of July 22, 1987 (Senate Act no.277), attempted to make substantial changes in Law 685/75. Still concerning the question of the moderate quantity, the DC bill for art. 92 provides the removal of penalties for "anyone who buys or possesses without authorisation narcotic or psychotropic substances for personal use on the condition that the quantities do not exceed the amount habitually consumed by the subject in a 24-hour period or, on occasion, in quantities that do not exceed the average effective dose of the said substance". The bill was also signed by Sen. Jervolino.

The problem remained unsolved, not only because none of the various bills was passed, but also because not even the Constitutional Court was able to come up with a definition of the concept of a "moderate quantity". The first time it had judged the question inadmissible because of the lack of suitable elements for identifying the precise nature of the decision the court was being asked to make (sentence no. 170 of October 26, 1982). On a second occasion it noted that the meaning of the expression being an entirely discretionary question, it was up to Parliament to define it (sentence no. 136 of April 16, 1987). Not even the intervention of the Supreme Court of Appeals was of any help. This court had justified punishing those who possessed "immoderate" amounts for personal use, upholding the distinction between "moderate amounts" and drug pushing on the one hand, but emphasising on the other that punishment was legitimate because of the objective danger constituted by the possibility of a larger amount o

f drugs in circulation (sentence no. 152334 of February 18, 1982).

Certainly it is unrealistic to entrust the definition of a moderate quantity to those who before the passing of Law 685 sustained and today even more clearly and determinedly sustain the necessity of penalising and legalising.

The Experience of the Netherlands

For a study conference a text was presented by Eddy L. Engelsman, the chief of the agency for Alcohol, Drugs and Tobacco Policy of the Netherlands Ministry of Well-Being, Health and Culture. From this text we present here the most important passages for an understanding of the direction Holland is taking to limit as much as possible the supply and demand for drugs.

The basic principle determining all of Holland's legislation in regard to drug addiction is that this is not an affair which primarily regards the police and the judiciary. It is more a question of public health and well being. As such it is the responsibility of said ministry to co-ordinate the drug policy.

There has been much discussion of Holland's liberal and anti-repressive policy with regard to drug addicts. Among the basic criteria of that policy is the separation of the markets for light and heavy drugs. According to the Minister of Justice, this results in keeping the sale of hashish out of the hands of the large-scale criminal world. By not incriminating young people they are kept from falling into illegal activities.

For the rest, the policy of removing penalties from the use of cannabis has certainly not resulted in an undo growth of its use. A look at the statistics is sufficient: at the beginning of this year the University of Amsterdam studied a representative sample of Amsterdam residents from 12 years of age upwards. All of them were asked if they had used cannabis even a single time in the previous year. The replies showed that an average of 5.5% had used cannabis in the month preceding the interview. This percentage was larger in the age category of 23-24 year-olds: 14.5%.

This shows how the popularity of cannabis is rather low even in conditions where it is easily available and where social condemnation is relatively absent.

As is known throughout the world, in Amsterdam you can buy cannabis in about two hundred shops. The price of the drugs produced so easily and at little expense is rather low - between four and five dollars a gram, about half that of cities like Rome and Milan and a third of the price in Frankfurt and Berlin. Holland deliberately chooses this non-repressive perspective on the basis of the experiences of other European countries.

On the international level, in fact, the larger number of countries are convinced of practising rigorous morality and irreprehensible ethics in regard to drug addicts.

It is self-understood that this attitude does not and has never brought about an effective reduction in the use of drugs.

Furthermore it is extremely risky to attempt to unify the experiments of one country's legislation in a single world-wide approach to destabilise drug trafficking. Such an approach would evindently fail to take into account the cultural and economic diversities of all the interested countries. In this way one could only arrive at an appearance of solutions for the drug problem in the various countries.

Holland has the merit of having asked itself an essential question: What margins of discretion exist in for establishing the present policy on drugs?

What is Holland's position on legalisation? A harder fight against illegal drugs is an extreme choice. The extreme choice in the other direction would be legalisation.

To ask for legalisation does not mean either to deny or to minimise the effects of drugs. On the contrary, the health aspects are a fundamental consideration.

Evidently one does not know to what degree the consumption of narcotics would increase or decrease in such circumstances. But the nature of the problem of drug addiction could take on a less harmful aspect in a situation without incrimination and penalisation, and this would be anything but a "free" situation.

According to Engelsman there is a distinct difference between a policy to discourage consumption and a policy to incriminate the consumer. This approach can be compared to the Dutch policy towards cannabis products. In 1986, out of a Dutch population of 14,700,000, there were 18,000 deaths from tobacco, 2,000 deaths directly related to an abuse of alcohol, and only 64 Dutch citizens died from the consumption of drugs.

"Society has reacted in quite a surprising way to these statistics", says Engelsman. "It seems that one can live with one's problems of alcohol and tobacco without emotional reactions and without fear that our Western civilisation and society are in danger, as some heads of the government maintain. But one refuses to accept the idea that drugs provoke only an insignificant number of deaths".

From the social viewpoint, Engelsman warns that society's rejection of drug addicts may only encourage or strengthen certain life styles.

The repression of consumers and even of those who are only experimenting with it may have the same effect. This is why prevention must eliminate the unfounded fascination and idealisation that the drug user arouses. The drug phenomenon must be stripped of its essential and emotional aspects and be more openly discussed.

With regard to the policy of social assistance, the 80's have manifested a notable change from preceding years. There has been a new philosophy of treatment that put the accent on disadvantaged position of the drug addicts. Here the government has always given more encouragement to forms of assistance that aimed at helping the addict to have a function in society rather than primarily to put an end to his addiction itself. The fact that the addict cannot renounce his drug is provisionally accepted as a reality. This form of assistance can be called "limiting the damages" or, more traditionally, a secondary or tertiary form of prevention.

In reality the policy of normalisation in the Netherlands seems to have created a context in which the drug addicts appear more like unemployed Dutch citizens than monsters who endanger society.

The Dutch experiment is truly significant with regard to the problem of AIDS as well.

The Dutch policy known as "taking on the burden" has made it possible for the assistance network to reach the great majority of drug addicts. In Amsterdam from 60 to 80 per cent of the addicts are involved in some from of aid. The wide accessibility is highly favourable, in particular because a fundamental condition for preventing AIDS lies in the power to keep in contact with the drug addicts.

Prevention of AIDS aims at changing life styles. Addicts are taught to limit the risks as much as possible both with regard to the use of syringes and to sexual relations.

In fact, in Holland only eight per cent of the 805 AIDS cases are drug addicts (as of October 1, 1988) in contrast to the European percentage of 23% (as of June 30, 1988).

A last point that is worth considering in the Engelsman report is one that regards crime.

The policy of normalisation in Holland has not increased a higher crime rate. After a general rise, the amount of crime registered stabilised around from 1984 onwards. In comparison with many other European countries the crime rate is even lower.

The Case of Liverpool

Almost as if to contest the repressive policy operating throughout Great Britain, one should remember the example of Liverpool's Maryland Centre as a stimulus for following another and alternative route.

As Carlo Gallucci reports in <> of November 19, 1989, the centre offers a public service based on the legalisation of drugs, and of heroin in particular.

The centre, which must contend with the opposition of the Labour Party, is financed by the right wing of the Tories that administers the funds earmarked by the government for the fight against AIDS. Besides the Maryland Centre, there are sixteen other analogous centres operating throughout the region that employ over two hundred fifty people.

It is easy to guess at the motivation that gives these still limited and isolated movements the strength to continue their work. John Marks, a psychiatrist in the Halton Hospital and one who knows numerous other clinics for the cure of drug addiction, affirms that "prohibition means the black market, dirty drugs, violence and organised crime. Liberalisation on the other hand would lead many more young people into drug addiction. The right road is controlled availability": legalisation. At the centre any one who makes the request is offered syringes, needles, disinfectants, contraceptives - all of it together with a small container for bringing back the used objects. Of the 192,000 syringes distributed in three years, 166,000 have been brought back.

The youths who make contact with the centre have pharmacists at their disposal who, on presentation of a prescription, provide the drug needed - generally heroin - in controlled doses and at prices that are absolutely reasonable in comparison with the prices on the black market in other countries where there are penal sanctions for drug trafficking and pushing.

Because it is absolutely necessary to consider that in the face of the grave solutions into which all of Great Britain falls for common crimes connected to drug addiction, there exists an evident desire to conform not only to the demand for drugs but also to supply them. And this, as such, cannot and must not pass through the sieve of punishment as the visceral repression of a problem whose connotations are far from being exclusively judicial and penal.

It must enjoy the benefit of tolerance because it is only thus that one can temper that morbid attitude towards the drug addict that exiles him from a necessary form of reintegration into society. To penalise the drug addict means to shunt him aside, to make him even more vulnerable - if possible - to those who exclude him and chase him back into a world that smacks of the ghetto, of racism and fear.

To confirm that this attitude of "concerned approach" as it has been called, is valid and bears fruit, one need only look at a few statistics: the number of sero-positive persons in the region is the lowest among the heroin addicts in the whole of England and probably the whole of Europe: six for every million inhabitants as against thirty one for the London area and no less than one hundred seventy one of Scotland where drug addicts are incriminated.

In Merseyside there live almost two and a half million people and the number of sero-positive among the addicts are only fourteen .

Only one person has contracted AIDS.

Does anything more need to be said?

(continues with text no. ARC-988.ING)