Francis Caballero, Lawyer, Professor of Criminal Law at the University of Paris X, President of the Controlled Legalization Movement (MLC), Author of Le Droit de la Drogue, Dalloz, 1989

Not only dangerous for public order, the policy of repression also threatens personal freedom.

In June 1961, Harry Anslinger, the "incorruptible" head of the Narcotics Bureau and chief investigator of the international ban on narcotics said in an American magazine: "We are winning the war on drugs".

Thirty-two years later, one remains staggered by the number of bellicose declarations which follow one after the other at the highest echelons, with the same fecklessness. Nixon and Pompidou in the 70's, Reagan, Bush and Mitterrand in the 80's, Quilès and Pasqua today ... have all declared out and out war on drugs: a strengthening of repressive laws, an increase in the means given to the police, a paramilitary organizational structure... all taking aim at one and the same target: users, dealers and drug traffickers.

Unfortunately, more than thirty years of the international crusade against drugs and twenty years of applying the law of 1970 have hardly shown convincing results. Worse still: the perverse effects of prohibition/repression have become very worrying, both from the point of view of public order and

personal freedom and that of public health.

At the public order level, one must note that the combination prohibition/repression promotes major as well as petty crime.

As far as major crime is concerned, prohibition is the objective ally of drug trafficking. Indeed, the product's rarity value ensures drug traffickers with an annual income of at least $ 150 billion - a real gold mine for organized crime, the Mafia and the drug cartels. As Henri de Choiseul-Praslin demonstrated, the drug market has been boosted by repression which aids and abets the most organized and most dangerous individuals.

For petty crime, prohibition is the driving force behind many crimes and offences. The price of the goods - FF 1,000/gram for heroin, i.e. ten times more expensive than gold - incites the drug addict to carry out a very high number of crimes against people and property: bag snatching, theft of car radios, burglaries, break-ins at pharmacies, prostitution, etc. without forgetting to mention the "deal" which enables the addict to get his dose. According to the Trautman report, the sums of money stolen from the community would amount to FF 30 to 50 million daily.

France - the severest in Europe

The policy of repression is not only dangerous for public order, it also threatens personal freedom. According to the police, the system is unable to catch more than 10 % of the narcotics in circulation, so public order "works itself up" and introduces legal measures which are increasingly severe. According to a seminar which was held in 1992 on the subject of "Drugs and Human Rights", the increase in repression is generalized, but France is the most repressive in Europe. The number of people questioned rose from 3,000 in 1970 to 50,000 in 1992. Today, "drug cases" fill a third of French prisons.

For some, this is not enough. The law of 1970 was reinforced in 1986, 1987, 1989, 1990, 1991, 1992... The repressive machinery has quite evidently spun out of control. It is no holds barred in the fight against the drug traffickers, the "grave diggers of the young". The Medellin syndrome has gripped the legislator.

The problem is that the law applies indiscriminately to cannabis and heroin, to the user-cum-drug pusher and the international drug trafficker. This results in absurd situations, such as the Valenciennes case where article L. 627 of the Code on Public Health was applied to two young students prosecuted for importing 20 grams of resin. The result is that, on the pretext of protecting today's youth, one in fact jeopardizes its future.

As for the one-year mandatory prison sentence provided for in article L. 628 of the Code on Public Health given to all adults who use a substance of their choice in their private home to procure sensations, this is contrary to Article 4 of the Declaration on Human Rights which states: "Freedom consists in being able to perform all acts which do not harm others" - an oft-forgotten cardinal principle.

Regardless of these infringements of personal liberties, prohibition and repression have turned out to be dangerous for public health. Two significant examples readily demonstrate this: overdoses and AIDS.

With respect to overdoses, it is well known that clandestine activity increases the dangerous nature of the substances. Product quality diminishes on its way through the distribution chain (importer, wholesaler, dealer,...) due to dilution or adulteration, which are the cause of most accidental deaths of heroin addicts. It is to be observed that the number of deaths increased from 1 in 1970 to approximately 500 in 1992. This must most certainly be considered as a major medical failure of the law of 1970.

The situation is even more serious for AIDS. Marginalization of drug addicts has resulted in disastrous practices, such as sharing needles. This in turn has led to propagation of contagious diseases, such as hepatitis and AIDS - propagation in which part of the medical community and the political classes have unfortunately played a fairly significant role.

According to a recent DEA thesis, defended at the University of Paris X, on the regulation of the sale of syringes, it would appear that the two-year delay in implementing the measure of legalization of the sale of syringes, i.e. between April 1985 and May 1987, was mainly politically motivated. This delay would apparently be responsible for the HIV virus being transmitted to more than 1,250 addicts - a hecatomb which is not spoken of often enough.

All these perverse effects, together with others (financing of terrorism, money-laundering, corruption, repression cost,...) have led more and more people to condemn prohibition and to call for a different kind of crime policy. It is in this context that the "Mouvement de légalisation contrôlée - MLC" (Movement for Controlled Legalization - MCL) has been set up, bringing together lawyers, doctors, GP's and ordinary citizens who all wish to see the law changed. The French MCL is moreover just a branch of the international antiprohibition movement.

Without claiming to represent such a complex movement, one may, however, suggest some guiding principles for a system of controlled legalization. Anglo-Saxon antiprohibitionists use the triptych: legalize, control and dissuade. One could also suggest replacing the war on drugs with a public fight against drug abuse - a formula which tolerates drug use and only fights abuse. For legalization does not imply laxity. It recognizes the potential dangerous nature of the substances involved and envisages implementing certain public health and social constraints to control access to them. These would consist of differentiated constraints since it is pointless to speak loosely of drugs. Each substance has its own specific properties.

This calls for definition of the areas of control, that is to say which substances could be legalized. Logically, the field of application ought to be limited to drugs for which prohibition failed, those substances for which demand is a fact of life: cannabis (a market worth $ 52 billion), cocaine ($ 27 billion) and opiates ($ 71 billion). There is no reason to legalize phenocyclidene or LSD for which prohibition works. Even for cannabis, one shall have to show caution by providing for a 5-year test period (as in the case of abortion) before continuing with the legalization experiment.

As far as the use of drugs is concerned, the principle would be to tolerate it as long as it does not harm society or third parties. It ought to remain discrete and not degenerate into abuse. It would, therefore, be admissible in private premises but would be banned in public premises. It is not worth reproducing the same errors committed by Spain's attempts at "depenalization", and give rise to provocation and conflicts with the population. Moreover, the use of drugs while driving would be sanctioned on the grounds that this is dangerous for public order and safety and also because driving under the influence of drugs would be regarded in the same light as driving under the influence of alcohol. Lastly, the abusive use of drugs, dangerous for others, might form the object of compulsory medical treatment.

The general idea would be to replace an ethics of abstinence, certainly ideal but unrealistic, with a more pragmatic ethics of moderation. However, this calls for a certain level of maturity. Hence the ban on selling drugs to minors which is vital in order to protect the young. This measure, much contested by some, already applies to alcohol in the United States and does not appear to cause any special problems. It can be adjusted and the notion of qualified minor could be established: for example, sixteen years for cannabis.

As far as the drug trade is concerned, controlled legalization attempts to be a model for exemplary distribution in which all forms of incitement to use drugs are prohibited. This "passive" trade, which has been stripped of the attributes of ordinary trade (right to trade name, shop signs, advertising, sales promotion,...) would strive to ensure consumer protection. Hence the proposal, also much debated, to call on the State to take charge of managing the distribution monopolies for soft drugs or special dispensaries for hard drugs.

Such monopolies already existed in our former colonies for cannabis and opium but their mission was mainly economic and fiscal. In contrast, tomorrow's monopolies would have a public health and social focus. Hence, the introduction of various countermeasures and controls to guarantee effective prevention: advice to drug users on the use of the products, information on the dangers, assistance and medical follow-up of hardened drug addicts, on-going detoxification programmes, programmes on risk reduction, tariff policy to orientate supply and demand, taxation of legalized drugs for the benefit of Social Security to compensate for the social costs, etc.

All these mechanisms and many others deserve discussion and in-depth reflection but the debate has now been launched. Legalization does not mean capitulation. It is quite possible to fight abuse of legalized drugs. The sale of tobacco and alcohol does not prevent the fight against smoking and alcoholism. Sometimes this meets with success. This is why the impossible war on the tentacular octopus ought to be replaced with another kind of battle, a more peaceful struggle: controlled legalization, complemented by public health and social countermeasures. This is a reasonable idea which has already gained ground and will continue to do so.

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Article published by Le Monde des Débats, n· 13, Novembre 1993