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Some thoughts on the current drug legislation in the US:
Part One:
Every now and then one learns something that compels them to sit bolt upright and really think – this happened to me last night after I watched a documentary on the current drug legislation in the US. I am happy to admit that I find it hard to follow all the differing state laws, as well as interpreting federal law, but either way, if these laws exist in just one state in a country that much of the world sees as the one leading the way as an example for how our society should exist, it should concern all of us.
I would like to start with the three strikes rule that California first implemented and explain how draconian and wrong this practice is. Sticking to the sphere of drug use, what this legislation results in more often than not is that someone found guilty of being in possession of a drug can receive a life sentence without parole whilst another can be found guilty of rape and receive a lesser sentence with the option of parole. This makes no sense when applied to the doctrine of natural justice; someone in possession of a narcotic is clearly in breach of the law, but they are also not guilty of a violent crime against another person. To equate being caught in the possession of a substance as more severe than raping a woman is totally illogical, and any society that endorses this practice, or assumption, should be ashamed.
The law, if it is to command respect for being a just, fair and reasonable mechanism in which to achieve law and order, must ensure that the punishment always fits the crime – something the three strikes rule clearly does not even come close to achieving. To lose the ability to see some crimes as worse than others in the first instance will cost the individual, but in the final analysis, the ultimate price will be paid by society itself. If we have lost the faculty to determine the difference between steeling a chocolate bar and murder, the result is to criminalise almost every one of our members, whether they are caught and brought to so-called justice or not.
Drug legislation in the US should concern us further; when I read of a man being given a 10 year prison sentence without the option of parole, because he sent a package for a friend, that unbeknown to him contained cocaine, I was alarmed. Of course it is human nature to assume that such a person must be guilty, but when I learned that he did not even think about the fact the package might contain contraband, demonstrated by the fact he included his own name and address on the parcel, it seemed reasonable to feel some doubt. Even if the reader remains suspicious, this case is not in isolation – there are women for example that have been sentenced to very long periods in prison simply because they lived with a drug dealer. As it stands in the US, the moment an individual 'aids' in the supply of a controlled substance, they become subject to the same treatment as anyone that knowingly supplies or traffics in these substances. So, for example, the girlfriend of a drug dealer that answers his mobile phone and subsequently hands it over to him, instantly becomes accountable in law. Mens Rea, the Latin for guilty conscience, is a phrase used by lawyers to determine whether someone intended to break the law or not, means nothing at this point - if she hands the phone over to her boyfriend, how does that display any intention to break the law?
Something else that should be exposed is the fact that a middle class child in modern America will be afforded the chance of treatment, where as those less fortunate that are not offered no such option, will automatically be placed in the criminal justice system. Whilst it might be easy for us to focus on how these people have broken the law, in doing so we might also neglect to realise the impact it has on their families, and most importantly, their children.
My final point aims to expose what has been called a 'growth industry' in terms of prisons. We once referred to the military industrial complex, but this has been replaced by the correctional industrial complex. I put it to you that this drug legislation creates criminals, rather than bringing them to justice. When such legislation allows the police to seize the vehicles and property of anyone suspected to be involved in drug taking or dealing, it only aids to make a mockery of the whole spectacle. Motivation, and daring to ask what creates it, is a key question here.
Part Two:
Throw the book at the people really to blame for all this, but when legislation only serves to punish those that are in reality the real victims, it is hard to support it. It is easier for society to comprehend an explanation that places the blame on those that demand these substances, but it is a lazy society that is incapable of realising that the real fault, and thus solution, lies in bringing the people that make these drugs available, to justice.
The association between drug laws and race might be explained further by taking a walk through history. Prohibition has almost always proven to be a failure; something I believe remains the case. Race is only one way to categorise people; religion is another. Whilst that statement might be obvious, it is relevant to this debate. Why has alcohol managed to survive so many attempts at prohibition? Perhaps the answer lies in what it symbolises to many; one has to ask if the fate of alcohol would have been different had Jesus Christ not chosen to use it to represent his blood. This is especially true of the Catholic faith, one that believes in transubstantiation – to outlaw alcohol would also mean having to turn law abiding and moral upstanding church goers into criminals. I dare say that had alcohol been 'invented' today it would be classed as one of the most dangerous drugs on offer. It is almost as though as a society we are happy to turn a blind eye to the hypocrisy our legal system reveals by allowing a substance like alcohol to be legally consumed, and yet at the same time treating those citizens that smoke marijuana as criminals. However I am of the opinion we have come as close as we ever have to a viable solution to the problems posed by substance abuse or misuse with how we deal with alcohol. We get it right when we permit people to put as much alcohol into their bodies as they choose, respecting their right to decide such a thing as free members of our society; we only punish people for their behaviour whilst intoxicated, and, crucially, not for being intoxicated. For example, it is just, fair and reasonable to bring people that drink and drive to justice – not because they have drunk, but because they have combined intoxication with another act that potentially places innocent people at risk. Hobbes, Locke and Rousseau would have all described this as an integral part of the 'social contract' each member of society must adhere to in order for society to remain civil. People should be free to decide whatever they want to do provided they do not encroach on the lives of others. Surely this is the backbone of any good criminal justice system. Many supporters of prohibition argue the current legislation serves to protect the individual from themselves, but that has never been the ultimate responsibility of any legislature or judiciary. If we actually take the time to examine the precedent such an aim sets, it would not be silly to assume that eventually high risk pastimes like skydiving and motor racing would also be subject to the same kind of legislation.
This is where my argument becomes harder to follow; I would put it to those people supporting prohibition on the grounds that it protects the 'weaker' members of our society from themselves, that the true cost of doing so is paid by society as a whole. Having researched the ideas of top economists like Milton Friedmen, I have been able to open my eyes to the stark fact that prohibition is failing on almost every level. If drugs were legalised the vast majority of the victims would be self-appointed. However as things stand, prohibition forces the prices of drugs so high which allows many people to capitalise on the vast sums of money to be made in bringing them to the black market. But with any black market, there comes an underworld of criminals required to sustain it. As a result many neighbourhoods are held to ransom by these gangs and dealers, thus reducing the entire population of some towns to victims, innocent victims at that. In some parts of both the US and the UK many well intentioned people are too frightened to go out after dark, and many children are growing up in a culture of fear because of this black market. However when determining how any black market evolves, it is not a question of what came first, the chicken or the egg, it is far easier to explain: legislation creates any black market. I have discussed this issue at length with many people throughout the years and I can safely say the greatest fear held by any drug baron is the thought that the drugs they supply are one day decriminalised. We live in a risk society, in other words we reward the risk taker, hence the high profits available to international drug cartels. And the irony is that it is our governments that aid them the most by maintaining the artificially high cost of illicit drugs. The high price paid by society for this market intervention is clearly demonstrated in how many addicts are forced to steal from either businesses or individuals in order to get their fix. If laissez faire economics were employed then these substances would be valued in terms of genuine supply and demand, and the reality is that very few drugs cost that much to produce.
If we apply the argument I used earlier to explain why alcohol had survived so many prohibitions citing its role in religious rituals, we could use the same principle to explain why some drugs are seen as 'harder' than others. Although I am unable to prove my next point, I don't think it would be unreasonable to question whether these classifications have more to do with the stereotypes that might take these drugs, rather than with the drugs themselves. Alcohol does not remain legal because of its chemical make up, but because of the group of people that are associated with consuming it. This point demands more attention when it is revealed that people who are caught with cocaine are treated differently to those found to be in possession of crack. Arguing that one is more addictive than the other does not wash here – people get addicted to both – and their chemical makeup contains the same controlled substance, except one is 'washed' by adding a legal substance.
I remain cynical about drug legislation altogether, so much so that what I would like to see is our law makers taking a couple of steps backwards. I have given up trying to argue the case for legalisation, and instead I have chosen to throw the whole question back at them. There is little parity in how we treat alcohol in comparison to other substances – if our law making bodies refuse to even consider legalisation, then I would ask them to in turn stick to their guns and include alcohol in the prohibition. But they never will because they know it won't work – as the alcohol prohibition in the US from 1920 to 1933 revealed. It is astounding that we were able to learn our lesson with regards to alcohol, and yet we choose to ignore it in every other sphere. It is human instinct to want to deny failure, but the danger of doing so for too long might also mean we are reduced to a sort of complacency allowing us to live in the problem because our collective pride prevents us admitting the mistakes that could open up the channel to discovering a far more viable and sensible solution. The alternative is to be duped into the belief that this is really a war on drugs when it is really a war on people. If it were truly a war on drugs, users would be seen, and, thus treated, as the victims in this war, and the efforts of our law enforcement agencies would be focused on bringing the suppliers of these drugs to court. An analogy that almost fits, but not absolutely, would be the arms trade: If we tackled this problem in the same manner as we do drugs, we'd place anyone shot, or wounded, by these weapons in the criminal justice system. If drugs are really the evil, rather than making the people that fall for them criminals, we'd have pity on them – an act that in itself might have the knock on effect of reducing their appeal to the young and impressionable. Our impulse to admire the risk taker only serves to glorify drug dealers in a mode that no other criminal faction enjoys. Most crimes hold the status of 'wrong' because they were committed, but for many the act of taking a controlled drug does not become 'wrong' until the person is caught; i.e. their error was being busted, not for the initial act; food for thought indeed. Finally, in the UK it is not illegal to take any substance; it is only against the law to be in possession of one.
James G
J a m e s G can be contacted at jamesg@blamedenial.co.uk