Giancarlo Arnao, Physician, Author of numerous works on the pharmacological and social aspects of drugs

Motivation and objectives

Until the end of the 1980s, the antiprohibitionist movement presented itself almost exclusively as an instrument of "critical opposition" to prohibition. Now that this position seems to be shared by the general public, the movement should enter a phase marked by constructive proposals.

The question has already been dealt with by other authors (cf. Szasz: The Right to Use Drugs in: Trebach-Zeese(eds.), New Frontiers on Drug Policy, Drug Policy Foundation, Washington 1992, pp. 15; Nadelman: Legalization or Harm Reduction: the Debate Continues, International Journal of Drug Policy, vol. 3 no. 2, 1992, pp. 7882; Nadelman: Thinking Seriously About Alternatives to Drug Prohibition, in Daedalus, Summer 1992).

In this article I will present a number of general considerations regarding the situation in the industrialized countries, whose problems with regard to drugs are relatively homogeneous.

The antiprohibitionist movement stems from a number of different demands, which are connected to different disciplinary and cultural approaches and to the safeguard of specific values; they can be classified into five main lines:

1) The criminal approach considers the prohibitionist strategy as the indirect but decisive cause of a) powerful organized crime and b) endemic "acquisitive" crime, related to drug addiction and the high price of drugs on the illegal market; it therefore considers prohibitionism a threat to individual and collective security.

2) The "civil liberties" approach is based on the argument that prohibitionism, by criminalizing

the use of drugs, punishes a "crime without victims"; as such, the identification of "guilty parties" requires investigations which invade privacy (the obligatory urine tests carried out in the US on millions of workers, for example) and undermine constitutional rights. The antiprohibitionist initiative is seen mainly as a defense of the right to privacy.

3) The cultural approach considers the use of illegal psychoactive substances not as a "pathological" action, but as an individual choice dictated by the search for pleasure or for experimentation with "alien" states of consciousness (like the use of psychoactive substances which are legal in our culture) over which the state has no right to intervene; at a more general level, it criticizes prohibitionism because it criminalizes culturally "deviant" behaviours.

4) The healthoriented approach is based on the observation that prohibitionist laws constitute a risk for the health of both drug users and the wider community. It counters prohibitionism (which sees the use of illegal drugs as a behaviour that must be prohibited at any cost) with the principle of harm reduction: the main objective is not to ban drug use in itself, but to limit and prevent behaviours which entail the most serious risks for users and society.

5) The economic approach sees prohibitionism as a phenomenon which triggers the growth of an international illegal economy, and the consequent contamination of the legal economy.

The various approaches have one common underlying objective: to remove the drug problem from the domain of the judicial and repressive system envisaging the full legalization of production, traffic, and use.

Agreement over the underlying objective does not exclude differences in the evaluation of priorities.

The economic and criminal approaches, for example, aim for the immediate and full legalization of all drugs, which would undoubtedly have decisive effectiveness in eliminating the illegal traffic of drugs; the healthoriented approach is interested above all in depenalization of drug users, and is hardly concerned with the legalization of cocainetrafficking, for example.

The "civil liberties" approach, on the other hand, by giving priority to the right to privacy, might consider the repeal of sanctions against drug use and possession to be essential, but the complete legalization of drugtrafficking to be of little importance.

The framework of approaches is linked, and sometimes overlaps, with the framework of different "drugs". For example, the drugs mistakenly known as "soft" (that is, cannabis derivates) are of little importance to the economiccriminal approach, since they do not give rise to traffic involving high profit levels or to secondary crime; they are also outside the field of the healthoriented approach since they do not create significant health problems. On the other hand, among those who favour the cultural approach, the users of soft drugs and hallucinogens may not be particularly interested in the legalization of other substances.

Ultimately, if each of the different approaches were pursued independently, none of them would be primarily interested in the complete legalization (use and traffic) of all drugs (see table 1).

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TABLE 1 THE DIFFERENT ASPECTS OF ANTIPROHIBITIONISM

ASPECT VALUE OBJECT OF LEGALIZATION

BEHAVIOURS DRUGS

criminal security use/traffic hard

civil liberties right to privacy use all

cultural freedom to use all

experiment

healthoriented harm reduction use hard

economic battle against traffic hard

illegal economy

NB "traffic" means all phases from production to smallscale dealing. Among the drugs, "hard" means those which a) lead to addiction and b) are connected with powerful trafficking organizations (e.g. opiates and cocaine).

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In reality, most antiprohibitionists have a common cultural background, and are therefore to some extent in agreement with all the approaches. Friedman himself, although starting out from the economic and criminal approaches, has also criticized prohibitionism as a policy which seriously undermines civil rights (cf. interview in Le Figaro, 19 May 1990.

Moreover, the various approaches actually have many important points in common.

For example, the legalization of cannabis was proposed by the government of Alaska in 1975 mainly for public health motivations (the fight against alcoholism); similarly, in Holland it was justified by the need to prevent heroin abuse by detaching the cannabis market from the heroin market.

Besides, there is another issue of the antiprohibitionist campaign which, although theoretically it belongs to the criminal approach, deserves separate analysis: the indirect costs of law enforcement, that is the waste of judicial and police resources which are diverted from other essential tasks. This aspect has great potential appeal to the general public, an appeal which in my opinion has not been used to a sufficient degree by the antiprohibitionist movement.

It has been widely proved that the prohibitionist policy has contributed towards the expansion of crime, not only by means of the perverse mechanism of the profits of the illegal market, but also through the massive and growing diversion of judiciary resources from the repression of common crime to the fight against drug users (cf. Zeeze: No More Drug War, The National Drug Journal, Jul. 7, 1986, p. 13, p#873). In Italy, judicial experts estimate that trials for drug offences account for 50% of the activity of the courts, which are consequently prevented from undertaking their main task of defending society from serious crimes. The same consideration can be made about prisons.

The question of indirect costs is related above all to the myriad of trials for use and smallscale commerce (in which cannabis, as the most widespread substance, plays a large part); the solution therefore shares with the other antiprohibitionist approaches the aim of legalizing the traffic and use of all drugs.

Operative proposals

With regard to operative proposals, some antiprohibitionists repeatedly claim that they are supporting not the "liberalization" but the "regulation" of the illegal drugs market. This specification is not enough to define a factual antiprohibitionist programme, unless the "rules" about the availability of drugs on the market are thoroughly explained.

In order to approach the problem, I believe that it is necessary to identify a series of options in relation to the various aspects of the problem.

Controls

The first decisive question is that of the general criteria on controls. Should the sale of drugs be subject to particular legal controls other than those laid down for other goods? With regard to this point, the British economist Stevenson maintains that the sale of drugs should only be subject to the laws of the market, and should therefore also be free from advertising restrictions (cf. CORA: The Cost of Prohibition on Drugs; Papers of the International Antiprohibitionist Forum, Brussels 28th September 1st October 1988", pp. 219226).

Some people, on the other hand, believe that the sale of drugs should be subject to controls and limitations. In this case, it is necessary to establish:

the user Categories to whom sale is restricted;

the institutions responsible for control;

the systems of control;

the prices of drugs;

the phases of Implementation of reforms;

the substances to be subject to control.

User categories

To whom will it be possible to sell drugs legally? At the moment, the prevalent opinion is that distinctions should be made on the basis of the type of drugs. Unconditional sale is proposed for soft drugs, perhaps subject to restrictions similar to those laid down in some countries for alcoholic drinks (bans on advertising and on sale to minors).

Proposals for restrictions on the sale of other substances are much more specific. In short, the possibilities are:

a) only drug addicts;

b) only majors.

With regard to option 'a', it should be pointed out that state of "drug dependence" is difficult to ascertain by scientific procedures; on the other hand, the same problem must be solved in the current situation by antidrugs agencies which distribute opiate substitutes to drug addicts.

In those countries which have adopted a policy of largescale methadone maintenance (such as Holland), ascertainment of the state of dependence is achieved through a urine test (which only proves that the drug has been ingested recently) and an interview.

Institutions responsible for control

Who will decide the drug user's right of access to the controlled sale of drugs? The prevalent opinion is that this power should be assigned to doctors. Doctors undoubtedly possess the most suitable technical instruments both to establish the condition of drug dependence and to help the users to manage drug use in relation to individual circumstances. This solution seems appropriate for opiate addicts, but it is less suitable for other drugs (e.g. cocaine) whose users are frequently not dependent, and less manageable within a medical framework.

Systems of control

The following systems can be adopted:

* Administration under medical control: the drug is administered directly to the user by the doctor or by an authorized deputy; this avoids the "gray market" (the illegal retail of legallyproduced drugs) but constitutes a serious limitation on the freedom of users, and encourages them to turn to the illegal market.

* Medical prescription: the drug is sold in the pharmacies by means of a onceonly medical prescription, or some other system which avoids multiple prescription; this allows a certain measure of "gray market". I believe, however, that the "gray market", if limited in extent, is a good rather than a bad thing, insofar as it satisfies an area of "illegal" consumption which would otherwise be fed by the black market.

This solution is acceptable for opiates, but less so for cocaine.

* Informed consent: the user who wishes to take drugs must be seen by a doctor who, on prescription, will explain the compatibility and the risks of the use of the drug. This system was proposed in the bill presented by the Rt. Hon. Teodori and others in Italy in 1988. It seems to be a good solution for drugs other than opiates.

* Licence: in order to be allowed to purchase drugs, the user must take an exam (like the exam for driving licences) in which s/he must show his/her ability to cope with the use of psychoactive substances. This proposal, formulated by the Californian psychiatrist Tod Mikurya, is certainly reasonable, although it would not be easy to implement.

* Order by post: this system, formulated by Nadelman, would have the advantage of attenuating the ideological impact of free availability on the market, and could coexist with a ban on the use of drugs in public (cf. Nadelman in "Daedalus", pp. 109114).

Prices

The retail sale price of drugs has a dual function:

a) it constitutes a deterrent to abuse;

b) through taxation, it is a means of financing the costs that society has to bear to prevent and combat the consequences of abuse.

Moreover, the price of drugs is a key factor to fight the illegal trafficking network and the acquisitive crimes. The price should be high enough to discourage abuse (as happens at the moment with spirits), and low enough to defeat the competition of the black market and to avoid acquisitive crime. I believe that the margins are sufficiently wide to find a compromise solution between these two requirements. Lester Grinspoon has worked out an interesting theory of "harmfulness tax" in which the prices of the individual drugs are determined in proportion to the potential harm from abuse (cf. CORA, op. cit., pp. 227-232).

Phases of implementation

This is an important problem, though it has not been debated so far.

In general, some people believe that the implementation schedule should be conformed to the growth of the ability of the people to cope with the use of psychoactive substances for reasons of health protection.

In this respect, we must take account of the pharmacological differences between drugs, and therefore establish a gradual introduction of legalization based on the level of risk of the various drugs.

A number of scientific authorities have, in fact, proposed multiphase legalization: immediate for the less harmful drugs (soft drugs), slower and more closelycontrolled for the more harmful drugs. This proposal will be further examined in section 3.

On the other hand, an excessive graduality would reduce the effectiveness of legalization against largescale trafficking.

Substances

As we have seen, there is a relatively widespread opinion that legalization should consider the pharmacological properties of the different substances.

Therefore, within some current legislations, the penalties related to cannabis are less severe than those related to heroin or cocaine; equally, many antiprohibitionist authorities envisage, in the near future, a law with separate norms for cannabis on one hand and heroin/cocaine on the other. With regard to many other drugs (including such widely used substances as MDMA, amphetamines, pyschedelics, etc.), there are, as far as we know, no proposals for specific norms.

The cannabis question

Within the antiprohibitionist movement, the question of cannabis overlaps to some extent (as we have seen) with the question of values and objectives (see section 1). However, there are also other aspects of the question which are worth separate reflection.

Some people within the antiprohibitionist movement seem to consider the cannabis question as either "secondary" or even "alien" from the problems of antiprohibitionism. A number of reasons have already been cited in section 1): the fact that the legalization of cannabis would solve neither the problems of crime nor those related to health. In opposition to this assumption, however, it can be objected that the legalization of cannabis was introduced in Alaska in 1975 and in Holland in 1976 largely for health reasons.

From a different viewpoint, the separate treatment of the cannabis question is related to reasons of political expediency: it is taken for granted, that is, that the public view of cannabis users is negative for the following reasons:

a) since they do not harm themselves or others to a significant degree, they do not inspire any of the feelings (fear or compassion) which are called forth by the tragic problem of drug addiction; they are considered people who pursue a habit which has no serious grounds and entails no serious problems therefore they deserve no consideration;

b) on the other hand, the general public has no interest in the issue of civil rights.

This is a very debatable subject. Some people, in fact, may claim that the feelings and the prejudices of the general public are a fact which the antiprohibitionist movement must take into account, and to which it must perhaps adapt. On the other hand, it could be objected that the antiprohibitionist movement can only take steps forward if it convinces the general public to take a more rational and pragmatic approach.

In any case, it seems to be essential to formulate the problem beyond "primary" emotional reactions, and ask ourselves to what extent the general public is prepared to accept the idea of legalizing all drugs with respect to that of legalizing cannabis alone.

It seems clear that in Italy there is now much wider consensus for the legalization of cannabis than for the legalization of all drugs. A nationwide survey carried out for the RED in 1993 by Demoskopea presented a choice between the following scenarios:

A) legalization and free sale of all drugs;

B) free sale of cannabis by tobacconists; cocaine and heroin on sale in pharmacies on medical prescription;

c) free sale of cannabis by tobacconists; sale of cocaine in pharmacies on medical prescription; administration of heroin under medical control in public health centres.

Option A) was approved by 5% of those questioned, option B) by 10% and option C) by 36%; the figures were higher (by an average of 5%) among younger and more highlyeducated respondents.

In other words, 51% of the adult population are in favour of the free sale of cannabis by tobacconists, whilst only 5% approve of the uncontrolled sale of hard drugs. It is worth pointing out that the survey also showed a big difference in attitudes towards heroin and cocaine.

From a historical perspective, it should be remembered that the social perception of the difference between soft and hard drugs has been strengthened over the last few decades by the initiatives undertaken by some antiprohibitionist exponents: Marco Pannella's definition of marijuana as a "nondrug" dates back to 1972. The "diversity" of cannabis has been a steady argument in all the scientific studies and reports that have given technical support to the antiprohibitionist policy: from the 189394 AngloIndian Report to the 1969 "Wootton Report" in Britain, the Reports of the Canadian Commission and the US National Commission of the early seventies, up to the 1989 Report of the State of California.

All these documents proposed a differentiated law giving greater priority to the depenalization of cannabis that to that of other drugs. To cite just one example, the minority "Conclusions" of the Reports of the Canadian Government Commission (drawn up by Marie A. Bertrand) proposed the complete legalization of cannabis and a limited legalization of opiates, that is controlled distribution restricted to addicts (cf. Canadian Commission of Inquiry, Cannabis, Information Canada 1972; Final Report, Information Canada 1973).

It should also be remembered that until the end of the eighties proposals for the reform of drug policies attached little importance to the problem of organized crime and of the illegal economy (as we have seen in section 1 and table 1); hence the legalization of the traffic of hard drugs is a crucial condition.

In 1991, the legalization of cannabis was proposed by the Frankfurt Resolution (European Cities on Drug Policy), whose basic philosophy is that of harm reduction, a strictly healthrelated approach.

The incongruity of the prohibition of cannabis has also been highlighted recently by important judicial authorities.

In 1991, the Swiss Supreme Court, examining an appeal presented by a citizen from Zurich sentenced for the possession of 8 kg. of hashish, declared that the possession of cannabis should be depenalized even for large quantities; the Court decided that the sale of hashish was no longer to be termed a "serious offence", on the grounds that "it does not endanger the physical and mental health of the vast majority of people" and that it is no more dangerous than alcohol (La Repubblica, 8 November 1991).

In 1992, the Tribunal of Lübeck asked the Constitutional Court to pronounce on the constitutionality of the law which makes the use of cannabis a criminal offence. The grounds were as follows: 1) the violation of the principle of equality (with alcohol), 2) the right to intoxication, 3) the safeguard of health (cannabis is less toxic than alcohol) (il manifesto, 29 February 1992).

Finally, it is worth pointing out that in September 1993 a special law for cannabis was discussed by the French government (cf. Libération, 21 September 1993).

At the operative level, the special law for cannabis has a number of important precedents. Like the legalization of the production and the possession of cannabis for personal use by the state of Alaska (USA), which remained in force (with excellent results) from 1975 to 1991, the "de facto" legalization in force in Holland and Denmark since the seventies, and the decriminalization in the state of South Australia, which has been enforced since 1987. These examples are a positive proof of the feasibility of the antiprohibitionist hypothesis.

An interesting and detailed description of the Dutch system of cannabis distribution in coffeeshops, which is wellknown to antiprohibitionists, can be found elsewhere (cf. Jansen: "Cannabis in Amsterdam", Coutinho, Muiderberg 1991). It may be more useful here to consider the law in South Australia, which has decriminalized the cultivation of up to 1,000 plants, the possession of up to 100 grams of marijuana and 20 grams of hashish, and the possession of instruments for use and cultivation: these acts are punished by a fine, and are therefore formally in line with the Single Convention (cf. JDI, Summer 1992, pp. 579-590).

Other considerations concern an aspect which is more specifically political: the extension of consensus. A campaign for a legislative reform (such as the antiprohibitionist campaign) is strengthened by the participation of the "categories" of people involved in the problem (as happened with the case of divorce in Italy, and of abortion and the gay rights movement in the rest of the Western world). The antiprohibitionist movement has certainly gained consensus among many categories indirectly involved in the problem, such as the "victims" of crimes committed by drug addicts, industrialists who have to face competition from the illegal economy, people concerned about the advance of the Mafia and about the spread of Aids, etc. There remains the category directly involved in the problem: drug users themselves. From this point of view, users of heavy drugs are in a peculiar position: addicts who do not wish or who are unable to "cure themselves", that is almost certainly the majority, are forced into a clandesti

ne position both by judicial persecution and by social stigma. The most "socially visible" addicts are generally those who are "treated" by the most repressive therapeutic communities: they express their difficulties in coping with the relationship with drugs by using highly ideological "prohibitionist" arguments as is demonstrated, in Italy, by the frequent TV appearances of the "inmates" of authoritarian therapeutic communities (such as San Patrignano). The fact remains that the "selfconfessed" heroin users who are politically active in the antiprohibitionist movements are a tiny minority (at least in Italy).

Cannabis users are the vast majority of illegal drug users, and many of them take part in the activities of the antiprohibitionist movements (as is the case of CORA in Italy). Unlike heroin addicts, they do not have problems of "social visibility", and tend to vindicate their identity as "users" in public.

In this respect, it is significant that some frontline antiprohibitionists have openly declared to be cannabis users: at the Drug Policy Conference in Washington (November 1992), the lawyer Tony Serra and the researcher Ethan Nadelman decided to "come out of the closet" by declaring that they smoke marijuana.

Moreover, in the very country which leads the prohibitionist war on drugs, we now have a President who admittedly smoked marijuana and a VicePresident who admittedly inhaled it.

Conclusion

At the level of practical solutions, the various approaches which coexist within the antiprohibitionist movement give rise to a series of different options, which now require extensive debate.