The General Accounting Office (GAO), a research arm of the United States Congress, released a report in 1993 entitled Confronting the Drug Problem: Debate Persists on Enforcement and Alternative Approaches. Illicit drug problems in the US are far more severe than in Australia. As in Australia, a fierce debate about prohibition rages. This study identified eight alternative approaches and examined arguments for and against each of them.

II. a. Expanding Drug Prevention Efforts

US Federal drug prevention spending increased from $US186 million in 1986, when prevention constituted seven per cent of the drug control budget, to $US1.7 billion in 1992, representing 14 per cent of the Federal drug control budget. Supporters of prevention programs regard reduced levels of consumption of alcohol, tobacco and illegal drugs as indicators of effectiveness. Opponents argue that decreasing consumption of these drugs may have more to do with changing social and cultural norms and enforcement efforts than drug prevention programs. The GAO report concluded that effectiveness of prevention programs has generally been mixed. Drug education, workplace drug testing or community-based, comprehensive approaches were regarded as promising but there was limited solid evaluation of effectiveness. Opinions were divided about whether amelioration of adverse social conditions might reduce demand for drugs, with some critics maintaining that drug use is not caused by these conditions.

II. b. Expanding Drug Treatment Efforts

US Federal drug treatment spending increased from $US628 million in 1986, representing 22 per cent of the then Federal drug control budget, to $US2.1 billion in 1992, representing 17 per cent. An official US Government agency estimated in 1992 that the nation's treatment capacity could serve only about 1.7 million of the 2.8 million drug users who might benefit from treatment. A Californian Study estimated that $US11 savings in social costs resulted from every dollar invested in treatment. Costs of providing treatment were estimated to reach $US50,000 per person per year for incarceration, or $US100,000 per person per year for injecting drug users who developed AIDS. The prestigious Institute of Medicine concluded in a 1990 report that "methadone maintenance has been the most rigorously studied treatment type and that it has yielded positive results in terms of reducing illicit drug use and criminal activity of opioid- dependent individuals" (Gerstein & Harwood 1990). An Office of Technology Assessment Report in 1990 concluded that the safety and effectiveness of methadone maintenance treatment had been established in numerous studies and that in a substantial majority, drug use and criminality decreased and health improved. Residential treatment programs were estimated to cost four to seven times as much as methadone treatment. The Institute of Medicine study estimated that between a third and a half of clients remain in residential treatment long enough to benefit. Outpatient programs were considered less effective but also less expensive.

II. c. Increasing Use of Coercive Treatment

This approach involves increasing links between treatment and the criminal justice system by encouraging offenders to participate in drug education or treatment programs as an alternative to punishment.

II. d. Increasing Use of Alternative Penalties

This approach includes the military-like environment of boot camps, operated in 26 states of the US, and is generally reserved for young, non-violent, first time offenders. Early evaluations show only marginal improvement over traditional forms of incarceration. However, boot camps might be cheaper than prisons. Intensive supervision of probation targets certain offenders for increased surveillance. This may involve electronic monitoring but often includes up to five meetings a week with a probation or parole officer, which is more costly than traditional programs but less expensive than prison. Nine US states have introduced a range of criminal or civil fines which do not mention incarceration for the first-time possession of a small amount of marijuana. No conclusions were reached about the effectiveness of these measures because of insufficient survey data. Expunction of criminal justice or civil records of those convicted of less serious drug offences has been introduced in some states but without clear evidence of net cost or benefit.

II. e. Increasing Use of Conditional Discharges

This approach allows courts to dismiss charges against less serious drug offenders if they complete a period meeting certain conditions such as finishing drug education, treatment programs or demonstrating abstinence through regular drug tests. Some evidence suggests that this approach is associated with longer durations of treatrnent which in turn are associated with better outcomes.

II. f. Eliminating Penalties for Drug Use

Eliminating criminal and civil penalties for possessing personal use amounts of an illegal drug is an approach adopted for alcohol in some US counties, where it is illegal to sell but not to use alcohol. Penalties for possession of personal use amounts have been eliminated in Spain and de facto in the Netherlands, where the law remains unchanged on the books but prosecution is only invoked if it is in the national interest. The law has been extended in some western European countries to cocaine, heroin and marijuana. Heroin-related deaths have increased in Spain, Italy and western Europe generally but have not increased in the Netherlands, possibly due to the increasing use of heroin by snorting.

II. g. Expanding Physician Prescription Authority
as a Drug Treatment Alternative

A UK study found that those prescribed injectable heroin had higher retention rates and lower arrest rates than those on oral methadone who had less opiate use.

II. h. Authorising a Regulated Drug Market

This approach involves converting an illegal market for drugs such as cocaine, heroin or marijuana to a regulated market. A variety of models have been proposed, including alternative methods of production, distribution, packaging, labelling and varieties of permissible advertising. Enforcement would be retained for selling or using any drug that remains illegal or illicitly providing legal drugs to minors. Because drug prices would be lower in a regulated market, it is expected that users would be less inclined to commit offences to obtain money to support their habits. Prices are likely to be eight to 70 times higher at present than if sold legally in a regulated market. A study of over 200 drug- related murders in New York City in 1988 concluded that 74 per cent were related to the illegal drug market, four per cent to attempts to finance drug habits, 14 per cent to behavioural influences of drugs, with eight per cent resulting from a combination of the above factors. Other arguments advanced in favour of a regulated market include the possibility of diverting funds previously allocated to law enforcement to drug prevention and treatment. Some argue that drugs could hardly be made more available in a regulated market than they are now in some drug-dealing neighbourhoods in the US. Monitoring quality and ensuring proper potency were other arguments noted in favour of a regulated drug market.

Opponents argue that criminal activity would simply shift to other areas. They claim crimes committed under the behavioural influence of these drugs would increase. Drug use could expand because of implied societal approval of drug use, increased availability in terms of ease of purchase and lower price, elimination of the deterrent effect of law enforcement, lower perceived health risks and removal of the danger of becoming a crime victim if it became possible to purchase the substance from a legitimate business in a low-crime area. A regulated market for marijuana was regarded as an additional option which could be considered even while prohibition was continued for other currently illegal drugs.

(Top)

III. Australian Options

III. a. Total Prohibition
III. b. Prohibition With Civil Penalties
III. c. Partial Prohibition
III. d. Regulation
III. e. Free Availability

In 1994, a Commonwealth Department of Human Services and Health monograph, entitled Legislative options for cannabis in Australia, set out the advantages and disadvantages of five legislative options. These options were largely based on a 1979 South Australian Royal Commission, which in turn was influenced by an earlier Canadian Royal Commission. The same options apply for illicit drugs other than cannabis.

III. a. Total Prohibition

As the monograph explained, "under the system of total prohibition the use, possession, cultivation, importation, sale and distribution of any amount of cannabis are treated as criminal offences". However, the report goes on to explain that the effect of total prohibition can vary substantially because of different ways of enforcing policy. In the Netherlands, relevant legislation has statements appended indicating that prosecution will only be invoked if it is in the national interest. In contrast, US policy has been increasingly toughened to the point where the notion of "zero tolerance" was accepted. This means showing no distinction between different degrees of offence. Perhaps the most telling criticism of this kind of approach is the evidence suggesting that harms caused by drug control regimes have outweighed the harms prevented by them.

Although the more liberal Dutch approach does not appear to have resulted in increased drug use and may have assisted by reducing drug-related problems, it is sometimes criticised on the grounds of inconsistency between laws and practice. Nevertheless, the Netherlands has been in a difficult situation for many years, surrounded by countries hostile to its drug policy, and the current solution may be the least detrimental option for them.

III. b. Prohibition With Civil Penalties

The monograph defines this approach as follows: "under the prohibition/civil penalty option, penalties for possession and cultivation of small amounts of cannabis for personal use are dealt with by civil sanctions, such as monetary penalties, rather than criminal sanctions such as fines and imprisonment. Criminal sanctions still apply to the possession, cultivation and distribution of large quantities of cannabis". The cannabis expiation notice (CEN) system introduced in South Australia in 1987 and later followed in the ACT is an example of such an approach. Careful analysis of cannabis consumption rates before and after the introduction of this policy has led to the conclusion that liberalisation has not increased use in South Australia. However, critics point out that the CEN may have unintentionally "widened the net" - catching more people. This emphasises the point that within each major option there are multiple choices involving finer details of policy which have a profound influence on the actual outcome.

III. c. Partial Prohibition

This is defined as "an option which seeks to maintain the controls on production and distribution of cannabis, while at the same time avoiding the costs of criminalising use of the drug. Under partial prohibition, it would remain an offence to grow or deal in cannabis in commercial quantities. It would not be an offence to use cannabis, or to possess or grow it in quantities judged appropriate for personal use". Some regard partial prohibition as inherently unstable, arguing that maintaining the supply side as illegal while removing criminal sanctions from the demand side will inevitably lead to a breakdown of the system sooner or later.

III. d. Regulation

This is defined as a framework where "the production, distribution and sale of cannabis would be controlled to a greater or lesser extent by the government. Trafficking outside the regulated system would continue to be a criminal offence and attract penalties. However, activities associated with personal use would not be penalised". In the Netherlands, there is increasing support for "cleaning up the back door" now that the "front door" has been cleaned up. By this, the Dutch mean that it is time to regularise an inconsistent system. Methadone maintenance can be considered a form of regulation in the sense that governments are willing to tolerate the supply of certain drugs to certain persons under highly controlled conditions. The trial currently underway of controlled availability of heroin and other substances in Switzerland and a similar proposed trial for controlled availability of heroin in the ACT are further examples of regulated approaches to drug control. Under this system, unauthorised persons who cultivate, produce, transport, sell or possess large quantities of mood-altering substances would continue to attract penalties as they do today for large quantities of alcohol and tobacco. In our view, a regulated system has the likely greatest benefits and least costs while still being consistent with Australia's international treaty obligations. These allow for medical treatment and research involving substances prohibited in the Conventions. In fact, some of the treaties commit signatories to provide high quality treatment and rehabilitation.

Adopting a regulated approach to cannabis is unlikely to happen in one step. We will probably proceed incrementally. The proposed trial of controlled availability of heroin in the ACT provides a very helpful model for the development and evaluation of controlled availability systems for other drugs.

Perhaps the biggest weakness of this system is that while regulation of supply and distribution of cannabis seems to be politically possible, and while the controlled availability of heroin and similar drugs for drug-dependent persons through government clinics might be politically achievable, it is hard to imagine that this system could ever be extended to embrace recreational users. By definition, they could not be catered for in this system while remaining consistent with our treaty obligations. On the other hand, it is quite conceivable that consumption of illicit drugs (apart from cannabis) will fall substantially when the enormous profits are taken out of the distribution system. Therefore, there are likely to be fewer recreational users under a regulated system than under the present system of total prohibition.

III. e. Free Availability

This approach is the exact opposite of total prohibition and involves the absence of any legislative or regulatory restrictions on cultivation, importation, sale, supply, possession or use. It is hard to imagine this option ever being seriously considered. Also, governments are unlikely to forgo the revenue which would become available in a regulated system.

(Top)

IV. Other Models

One of the many myths of prohibition is that we have no experience of models other than total prohibition. For a start, most communities including our own had what amounts to a free availability of all drugs in the nineteenth and early twentieth centuries. Perhaps the largest international example of regulated supply or controlled availability was the 44 intravenous morphine maintenance clinics operated in the United States between 1919 and 1923. Some clinics were better run than others, but their closure had nothing to do with effectiveness. The clinics were closed because they were considered inconsistent with the recently introduced prohibition of alcohol. Agents charged with responsibility for alcohol prohibition were also made responsible for narcotics. The prestigious New York Academy of Medicine tried to revise this approach in 1955 although it was never implemented.

Less well known is the recent experience with prescribing intravenous morphine in Italy. Unpublished material shows this treatment was extensively available, especially in the South of the country. Results were similar to the oral methadone program. In Britain, the option of prescribing currently illicit drugs has been available since 1926. Medical practitioners have been permitted to prescribe such drugs to selected patients when all other treatment options have been tried unsuccessfully "in order for them to lead a more normal and useful life". The "so-called" British policy has been idiosyncratically implemented, poorly documented and poorly evaluated. However, a study of almost 90 heroin addicts reported in 1980 showed that those receiving injectable heroin were more likely to remain in treatment and less likely to be arrested while those assigned to oral methadone were more likely to cease opiate use or use smaller amounts. Overall, there was little to choose between the two options.

The global experience with controlling legal drug supplies is also relevant. In the 1950s in Sweden, individuals were only permitted a certain quantity of alcohol per week in what was virtually a regulated system. In the Canadian Province of Ontario, the government still runs a liquor control board which has a monopoly on alcohol supplies. In Finland, the government controls the supply and production of alcoholic beverages.

An excellent paper outlining a detailed proposal for reform was released recently by the Redfern Legal Centre, Sydney (Burrows, 1995). This paper discusses banning cannabis smoking where tobacco smoking is banned, taxation and advertising controls on other currently illicit drugs, and shows how currently illicit drugs could be regulated. As in many areas of policy, most options have been tried before. To suggest there is no international experience of alternatives to prohibition is arrant nonsense. It is the fear of change, not absence of alternatives, which prevents us from thinking about options despite the evident failure of prohibition.

The next chapter examines how we can move from the current position to the policies we wish to consider.

(Top)