A key historical development is the dichotomization of drug use and harms into primarily a public health and social issue or a law enforcement and criminal justice issue (largely coinciding with the ‘legal’ and ‘illegal’ classification of substances). This dichotomy is reflected in the relative emphasis of regulatory strategies. A particular jurisdiction’s policy will be determined by the relative importance placed on the nexus of ‘drugs and crime’ compared with the relationship between drug use and dependence or addiction.
Prohibitionist policy frameworks for the use of certain drugs have led to most jurisdictions giving public health strategies fewer resources and a role subordinate to law enforcement. Critics have pointed out that the emphasis on law enforcement has made it difficult for public health interventions to effectively operate, and that there are unintended negative consequences of policies that have stressed law enforcement (Kerr et al., 2005).
Range Of Current Legal Responses
There is a general expectation that the State will bear responsibility for implementing systems of control and sanction in order to prevent and punish individuals whose behavior transgresses accepted rules and standards. Today there is a range of drug use and related behaviors that are considered criminal offences in law and law enforcement. These behaviors are subject to a variety of punitive measures (ranging from community service to the death penalty) or to civil regulatory actions and other sanctions (e.g., civil commitment, court-ordered treatment, and diversion-to-treatment programs, or compulsory drug treatment to avoid loss of social assistance, welfare benefits, or child custody).
The most common types of criminal offence are for the use, possession, trafficking, and manufacture of drugs of dependence. However, supply control and regulatory measures have in recent times extended to the diversion and nonmedical use of prescription pharmaceuticals, diversion from legitimate commerce of precursor chemicals (e.g., methamfetamine manufacture), the regulation of alcohol and public smoking, and, most recently, counterfeit drugs and Internet trafficking (see Monitoring the Future Survey; Makkai and McAllister, 1998; EUROPHEN, 2004).
A powerful factor motivating public expectations around the regulation of illicit drugs is the perceived relationship between drugs and crime. Politically, the regulation of drugs through legal mechanisms has been made possible through the characterization of certain drug use (and drug users by association) as immoral and a threat to social order. As noted, this developed historically in relation to the State’s desire to control minority immigrant and other groups viewed as problematic. However, the enshrinement of this control in binding international legal frameworks has positioned drug use as a behavior for which legal control and sanctioning is viewed as a justified response. Implicit in this justification is the contested assumption of a causal link between drug use and crime, and a belief that drug use can be reduced or even eliminated through supply reduction means.
There has been a long tradition of research into possible links between drug use, dependence, and crime, leading to the development of various theoretical models (e.g., see Makkai, 2002 for a discussion of models of enslavement, criminality, escalation, psychopharmacology, economic compulsive, and systemic violence). However, although the evidence consistently shows that people who use illicit drugs have a significantly higher than average crime rate and are more likely to have been arrested, no direct causal relationship has been identified (Lipton and Johnson, 1998; Deitch et al., 2000; Stevens et al., 2003). Current research into the drugs and crime issue engages with trans disciplinary assessment of inequalities in environmental factors such as poverty, education, and unemployment to further an understanding of the relationship.
The Addition Of A Range Of Public Health Responses
Broad public health discussion on the relationship between drugs and dependence or addiction has focused on the presence or absence of personal responsibility. There are various disease models under the umbrella of addiction that view drug users as powerless to address their addiction. In this context, it is argued that drug user responsibility is limited, since autonomy or agency is affected by a pathology or defect leading to addiction (from psychosocial factors to genetic predispositions) (see Kellehear and Cvetkovski, 2004). Given this lack of autonomy, it is argued, appropriate regulatory strategies should be adopted – that is, the relative emphasis of strategies should be based on public health rather than law enforcement responses.
However, arguments that minimize responsibility for drug use owing to addiction can be challenged as they are based on a small group of problematic drug users and do not represent the patterns of drug use by most people. Further, those who support abstinence and prohibition counter the argument about lack of autonomy due to addiction by insisting that it is the individual’s responsibility to avoid drugs in the first place.
Within the public health and law enforcement spectrum, there is a range of intervention strategies that are possible. Various types of legal and law enforcement strategies have been applied, such as legalization, supply reduction, border and domestic interdiction, street saturation policing, cautioning, and court and police diversion of offenders. In public health, harm reduction and minimization strategies can take the form of various kinds of demand reduction – such as primary, secondary, and tertiary prevention plus or minus health promotion – or use human rights approaches and strategies for drug law reform.
Different jurisdictions vary in their place on the spectrum between public health harm reduction and minimization or law enforcement approaches. The differential application and operation of strategies such as needle and syringe programs (NSP), supervised injecting facilities (SIF), and law enforcement reflect this orientation. Paradoxically, it is not possible to predict the use of particular interventions from the prevalence of drug-related harms or even the available evidence of efficacy. For example, although NSPs have operated for more than two decades in Australia and Europe, with widespread acceptance of evidence demonstrating their effectiveness in preventing human immunodeficiency virus (HIV) and hepatitis C virus (HCV) transmission, they are still prohibited in many American states and have been only recent additions in parts of Asia and other developing countries where HIV and HCV are most established. Differential outcomes are also evident across jurisdictions attempting to implement SIF trials, and even within certain countries (e.g., in Australia establishment of a SIF trial in Sydney and failed attempts in Melbourne and Canberra).
Finally, there are examples of mixed approaches in which law enforcement innovations are defined by some as key components of the harm reduction and minimization response (e.g., community policing, drug courts, court diversion to treatment schemes, decriminalization of possession, cannabis normalization and nonenforcement policy, drug and driving programs).
Opponents of a primary emphasis on law enforcement responses have pointed out that international drug control mechanisms are failing on a number of fronts and produce unintended consequences. The direct and indirect costs include a lack of success in reduction of illicit market supply of heroin, cocaine, methamfetamine, and cannabis; the additional negative social impact of law enforcement approaches; the deemphasis on drug-related harms such as HCV and HIV/AIDS; the lack of evidence regarding the efficacy of law enforcement policies and programs in reducing drug use and associated health and social problems; and the undermining of the operation of existing public health interventions – for example, riskier drug use to avoid police detection and non-uptake of NSP services (see Kerr et al., 2005; Rhodes et al., 2005). The important idea that laws, as they are written and enforced, shape the risk environment for drug users is attracting growing acceptance (Burris et al., 2004).
Issues For Debate
Drugs use and the harms associated with their use, together with the regulatory frameworks designed to address them, are closely linked to the socioeconomic and political contexts; therefore, consideration of context is important in addressing contemporary drug use and related harm. Irrespective of one’s views on the different approaches, regulation is the foundation of both public health and law enforcement. The relative emphasis on public health or law enforcement approaches, although important, should not detract from the discussion of their broader context. Issues such as the unequal social, economic, and political power of competing groups, the State as the site of competition between different strategies to regulate and protect citizens from drug use and its harms, the function of science and the status of evidence, and ethical questions related to these dimensions must all be considered.
The different jurisdictional outcomes in debates about supervised injecting facilities (SIFs) provide a good example of the crucial role of context. The relative socioeconomic and political power exerted by opposition groups in some jurisdictions has prevented trials from going ahead. These groups used a variety of strategies, from engaging in media debates to lobbying for legislation. Both those for and against SIFs engaged with the available scientific evidence, by critiquing and rejecting it or by interpreting it in ways that supported their positions. In this context, drug users were marginalized and their participation in the development of policies that affected them was directly minimized. Ethical issues, such as how we are to understand the relationship between drug use and dependence, individual autonomy, and rights, were difficult to discuss when debates circulated around the simple dichotomy of drug users as addicted and lacking autonomy or as criminal and autonomous.
Even where regulatory interventions such as SIFs (which are seen as politically progressive by supporters) have been successfully implemented, there is the possibility that rather than displacing more punitive measures, such policy shifts may actually incorporate these in the overall governance of drug users, drug use, and the associated harms. For example, in relation to SIFs, Fischer and colleagues (2004) note that ‘‘little attention has been given to their implications as a substantial shift from the punitive repression of injection drug use (IDU) to the government of drug use as a form of regulated risk consumption and sociospatial ordering under the guises of public health’’ (p. 357). The unintended end point may be more punitive targeting of drug users who refuse to submit to new rules and regulations with harsher measures than originally in place (e.g., saturation policing around new SIFs).
The example of SIFs demonstrates how drug use regulation is influenced by the socioeconomic and political context and can lead to the entrenchment of a simplistic public health versus law enforcement dichotomy. Public debates are influenced by powerful lobby groups. Choices can be dominated by strategic and technical details or by simplistic moral and punitive responses. Specific strategic regulatory responses are important, both public health and law enforcement responses, but they must be considered within the wider social, economic, and political context to achieve a better understanding of their negative and positive consequences.
Conclusion
The State regulation and control of drugs, legal and otherwise, shifts according to current sociocultural and political determinants. At different points in history, most known psychoactive substances have been freely available and unregulated. Historically, public health, in addition to law enforcement, has played a role in the justification of drug control – from the earliest application of epidemiologic methods to illustrate the prevalence of drug use and associated mortality and morbidity in the population to the regulatory frameworks (legislative and taxation) governing the manufacture, distribution, and sale of pharmaceuticals to controls of the licit drugs of highest consumption, tobacco and alcohol.
Many countries have pragmatic drug control policies that sit within increasingly strict prohibition regimes (e.g., cannabis normalization, diamorphine prescription, supervised drug consumption facilities). However, taking a long-term view, there is nothing inevitable or permanent about prohibitionist drug regulation and control, nor are public health approaches to the regulation of drug use and harms stable and guaranteed. Beyond strict prohibition, drug law reformists currently advocate for a sophisticated view of drug regulation that encompasses a range of prohibitory, prescription, and regulatory drug control regimes. Another important theme gaining momentum in the debate about drugs and legal issues is the consideration of the international human rights legal framework as a means of achieving a balanced approach to drug policy through an emphasis on human dignity, enforceable limits on State actions, remedies for mistreatment, and State public health obligations.