Profiteers and Prohibition
Notes for an address by Eugene Oscapella LL.M.,
of the Ontario Bar to the International Society for the Reform of Criminal Law Conference*
"Drugs, Criminal Justice and Social Policy"
St. Michael, Barbados
August 11, 1998
* Also submitted as a background paper to the Senate Special Committee on Illegal Drugs,
September 25, 2000
Mr. Justice Michael Kirby, now of Australias High Court, recently wrote about the unquestioning acceptance of traditional "truths" about drugs:
A recent documentary on Ceausescus Romania presented a parade of chastened politicians, intellectuals and lawyers who confessed that they had never stopped to question the fantastic laws and policies (not to say personality cult) which the dictator inflicted on them. They, at least, had the excuse of the Securitate. The inhibitions upon questioning apparently universally accepted wisdoms are very great: this is so even in less authoritarian societies.
One of the great "truths" of modern times is said to be the need for an international "war against drugs".
Ineed, from the lowest to the highest levels of government, even in so-called democratic countries, we have seen a blind, uncritical acceptance of the "truth" that more police, more guns, more powers of state surveillance, more clichéd and misleading exhortations not to use drugs, more calls for a drug-free society, will resolve the profound and complex societal issues that lead to harmful forms of drug use.
However, another, perhaps even more influential dynamic is keeping rational drug policy at bay. That dynamic is blatant self-interest -- self-interest accruing from the advantages to individuals who support pursuing the war on drugs.
Lest you think that I am labelling every supporter of the war on drugs a knowing, self-interested, beneficiary of the war, to the detriment of the public, I am not. Many members of this audience support the war on drugs out of a genuine belief that it will protect society. I disagree with you, but I do not criticize your sincerity. I am here to suggest that you reconsider your position.
But unfortunately, there are too many people in this world who, while pretending to consider the public good, support a war on drugs only because it brings them a very direct personal benefit. Their actions are driven, not by sound public policy on drugs, but by selfish interests that are often entirely antithetical to sound public policy. These self-interested drug warriors form part of what Norwegian criminologist Nils Christie calls the crime control industry.
The benefits of the war on drugs for clever criminals are all too obvious. The criminal prohibition of drugs makes the trade in drugs fantastically profitable for those willing to exploit the ready market for drugs. And the intensification of the war by governments merely concentrates control of the drug market in fewer, now more powerful, hands by eliminating smaller, less ruthless or less competent rivals.
But beyond that, the war on drugs brings enormous personal benefits to its participants by being among the most successful make-work projects of this century. In that sense, the war is a perfect example of socialist enterprise a massive government-led employment scheme created, in essence, by passing a few laws prohibiting substances. Governments the world over are able to employ thousands upon thousands, perhaps millions globally, of drug war soldiers -- the bureaucrats, police officers, justice officials, judges, drug treatment "experts", prison builders and prison guards. In this sense, the war on drugs is not without its moments of irony. For the United States, with its legendary abhorrence of things socialist, has fostered a massive socialist undertaking around the world through its inflexible commitment to the war on drugs and its pressure on other countries to follow suit.
And not only drug crimes, but the acquisitive crimes committed to pay the black market price of drugs, contribute to this boom in justice system employment. Because prohibition forces the price of drugs to an exorbitant black market level, dependent users need to commit crimes to feed their dependencies. Not only can you convict your citizens for the drug crimes themselves, but you can always go after them for "acquisitive" crimes and for related activities such as prostitution. Governments can thus ensure continuing ample employment for police officers, judges, prosecutors, defence lawyers, social workers, court officials, prison guards and prison builders.
How many government lawyers pay their mortgages by prosecuting drug users? How many defence lawyers pay their mortgages by defending users? How many people in our supposedly democratic societies earn their daily bread on the backs of those who use or distribute substances that governments have arbitrarily decided to vilify?
Those who abhor socialism can take some comfort that some elements of the war on drugs are very much a capitalist enterprise -- perhaps the perfect example of amoral capitalism. Criminal organizations the world over become enormously wealthy by buying drugs or their precursors cheap and selling them dear -- good, basic, capitalist economics. Some financial institutions, in their own pursuit of the capitalist dream, have knowingly laundered that wealth. Politicians and public officials have also, too often and too willingly, reaped the rewards of this capitalist dream through corruption. Just two months ago, the Los Angeles Times reported that "law enforcement corruption, sparked mostly by illegal drugs, has become so rampant that the number of federal, state and local officials in federal prisons has multiplied five times in four years, from 107 in 1994 to 548 in 1998, according to a new study."
Even those whose activities are not quite as patently self-serving as those of the drug barons and corrupt justice officials nonetheless profit, sometimes knowingly, from the war on drugs. Drug money purchases the good things in life, including expensive cars and consumer goods, thus helping to prop up the industries of many countries.
In a sense, the war on drugs represents the intersection of capitalism and socialism. The capitalists are the profiteers and the socialists are those trying to suppress the profiteers by force. And sometimes the players change sides, such as when politicians, police or bureaucrats step out of their socialist attire and become profit-seeking capitalists by accepting the largesse of criminal organizations intent on greasing the wheels of the drug trade.
The war on drugs also provides a ready excuse for little imperialist excursions into other countries, or at least into their internal affairs. What better justification could there be for those excursions than the need to suppress the production and trafficking of drugs in order to protect the "innocents" of ones own country?
The war on drugs brings so many other direct benefits as well. In the early post-Cold War period, as military suppliers scramble to adjust to the reduced threat of the former Soviet empire, the war on drugs has provided a convenient, durable justification for pushing military hardware into the hands of civilian police forces, even in democratic countries. And some police forces, certainly in North America, appear to welcome the opportunity to increase their firepower, thus inevitably escalating the arms race between them and the criminals they pursue.
Beyond offering the police expanded employment opportunities, the war on drugs has solved some of those nagging budgetary problems facing police forces. In many jurisdictions, the police are allowed to keep, directly or indirectly, assets seized when investigating drug crimes. Little should we worry that this gives them a very direct interest in "manufacturing" crime to line their own pockets. Even if they dont manufacture crime, police forces can reduce the nuisance of having to account to the public when they request funding by becoming more financially self-reliant through seized assets. One Texas drug squad head even bragged that his drug squad was now self-funding. Now there is less need to go to elected officials to justify requests for funding drug enforcement operations.
For those interested in fomenting a little terrorism in the world, look no further than the war on drugs. The war on drugs has created an enormously lucrative cash cow for terrorist and paramilitary groups -- from Northern Ireland to the Middle East, to Asia, to South America, to Africa. Terrorized, brutalized and murdered civilians end up as the "collateral damage" in these drug war skirmishes.
The war on drugs has also provided an enduring excuse for governments to avoid dealing with the real problems behind drug use why people use drugs in the first place. A much more convenient solution is simply to blame societal evils from lack of productivity to spousal abuse to underdeveloped children to unemployment to the deterioration of inner cities on drugs rather than on failed, negligent, incompetent or corrupt government policies.
And let us not forget that the war on drugs allows us to express some of our darker and more base authoritarian instincts under the guise of protecting democracy from drugs. Clever politicians and state authorities simply use the war on drugs as an excuse to enhance their control over society. They use the war on drugs to nudge along the authoritarianism that we now see creeping into even supposedly democratic countries. Many intrusive powers that we see governments salivating over, powers that will be buttressed by the multitude of new technologies available today, can of course be justified in the name of the war on drugs. Give us more surveillance technology, more police, and we will solve or reduce the problem of drugs in society, some will say. And, because they can never solve the problem, no matter how great the powers they are given, politicians and police will always have a ready excuse for demanding even greater powers of surveillance, of intrusion, of control, of incapacitation.
The war on drugs and the need for more powers to prosecute that war will always be available as a justification for trampling over individual rights. And once you have introduced those powers over individuals in the name of the war on drugs, it will be a relatively simple legislative measure to extend those powers to limit other democratic activities.
The war on drugs also provides a convenient outlet for the controlling instincts of some fundamentalist groups. Little be it of concern to them that much of the drug use in society does not do any profound harm to society; the important thing is to control the behaviour of others. The war on drugs offers the excuse for controlling that behaviour.
The war on drugs allows us to dress our racism and xenophobia in less obvious trappings. In North America, our early drug laws were to a significant degree premised on the vilification of immigrants and people whose skin colour or ethnic culture did not make the grade. Building on the racist and xenophobic origins of our drug laws, we continue to target minorities disproportionately in many countries. And, much as we might like to think that we do not practice such racism and xenophobia today in our pursuit of the war on drugs, we very much do. Canada, for example, in 1996 criminalized a stimulant called "khat". Khat is a substance used by some people of African origin. It is not used by white Canadians of European descent to any appreciable extent, if at all. Therefore, why not prohibit these recent immigrants to Canada these people of another culture, another skin colour, and another continent from using a substance that has long been part of their lives?
The war on drugs may also open the back door to reinstituting a form of slavery. The powerful elites of society can use the war on drugs to justify incarcerating the minorities whose habits they dislike. Then, for good measure, to exorcize the demons of drugs, why not put those minorities to work on chain gangs? How does this differ from slavery? Only in the sense that we have first taken the step of vilifying minorities as drug users or drug traffickers, giving the appearance of a justification for incarcerating these people in profit-making privatized prisons, and then putting them out to forced labour.
The war on drugs is also protecting the pharmaceutical industry, which benefits by the protection offered against competition from substances that could in the absence of the war be produced more cheaply and that might sometimes prove just as or more effective than pharmaceutical products. The war protects the "other" drug industries in our countries too alcohol and tobacco. By vilifying users of "illicit" drugs, we have proven effective in steering our citizens to those other psychoactive substances that are manufactured by organizations that then fill our political coffers, perhaps quietly thankful for the protection offered by governments against competition from "illicit" substances.
The war on drugs is also teaching governments a lesson in propaganda management. Governments around the world see how easy it is to manipulate public opinion through misinformation. They can paralyze the intellectual faculties of many otherwise intelligent people simply by using the right dose of anti-drug rhetoric. They can propagandize the young to the point that children are informing on their parents for drug use -- just as children in authoritarian societies have been taught to inform on their parents political activities. The same governments quickly learn that truth is entirely expendable in the pursuit of the war on drugs. And, having manipulated public opinion, governments can much more easily introduce extraordinarily intrusive state powers that would otherwise generate strong resistance from the public. No wonder that governments fear modern communications vehicles such as the Internet, with its capacity to democratize the flow of information and challenge government propaganda about drugs.
That same propaganda that softens the public for intrusive state powers, that vilifies drug users, that can be used as a basis for massive new expenditures in pursuing the war on drugs, has also proved useful to bolster the re-election prospects of our politicians. First, using propaganda, they generate public support for brutal and unreliable measures to deal with drugs. Then they promise more of the same more of what has not worked, what is not working, and what will not work as a tried and true vehicle for re-election, paving the way for further opportunities to do more of the same -- more of what has not worked, more of what isnt working, more of what will not work.
The drug war has given us an excuse for ignoring the threats of AIDS and hepatitis. Simply marginalize those who inject drugs, and what would otherwise be a public clamour for action to prevent disease and death among drug users will largely vanish. We are now paying the price for that arrogance, as HIV and hepatitis infection spread into communities that have no direct connection with drugs.
The war on drugs works wonderfully in another way. It benefits from easy opponents. Although Ive never been in the military myself, I believe that even I recognize the soundness of the advice that you should never fight a war that you cannot win. The opponents in the war of drugs are not those who you might immediately suspect the drug barons and other criminals. No, in fact, they are your allies, for without them there would be no drug war industry. The real opponents in the war on drugs are drug users themselves. And what more carefully chosen opponents could one wish for? Marginalized, stigmatized, these people have little political voice or public support after their vilification through drug war propaganda. Drug users have very little hope against the powerful armies that are being assembled to fight the war on drugs and to support the drug war industry. Yes, this is a truly intelligent war, waged against opponents who may be too weak, too sick, too stigmatized and too afraid to challenge the might and the force that is being directed against them.
It really is a perfect little system. In a sense, I do congratulate those who have made their system work so well that is, work so well for everyone but ordinary citizens whose fundamental human rights and civil liberties are being plundered in the process. It really is a perfect little system, except for these citizens and those unfortunate enough to use or work with the "wrong" drugs.
Little wonder, with all these benefits accruing from the war on drugs, that its beneficiaries so conveniently ignore the wars devastating implications for human rights, not only the rights of those who use drugs, but the rights of citizens who have nothing to do with drug use, production or distribution. Little wonder that beneficiaries of the war on drugs are so willing to overlook rights that form the foundation of our existence in civilized society the right to privacy, the right to be free from unreasonable search or seizure, the right to freedom of expression, the right to life, liberty and security of the person, the right to adequate health care, and the right to protection against cruel or inhumane treatment or punishment. And those who knowingly profit from the war on drugs are careful to cover their tracks. They make the war look like taking the high road, hoping that the public will never understand just how much the war benefits the drug warriors and hurts the public.
For those who profit from the drug war industry, the war on drugs has been a raging success. For the rest of society, the war on drugs is one of the most egregious failures of the 20th century. And, unfortunately, at least some of you today are here to perpetuate that failure, to your personal gain perhaps, but to the detriment of democracies around the world. If the lives, liberties and health of so many people were not at stake, the war on drugs would truly be a farce. But, as Nobel laureate Milton Friedman states in a letter to then U.S. drug "czar" William Bennett, "Every friend of freedom . . . must be as revolted as I am by the prospect of turning the United States into an armed camp, by the vision of jails filled with casual drug users and of an army of enforcers empowered to invade the liberty of citizens on slight evidence." Friedman continues:
In Oliver Cromwell's eloquent words, "I beseech you, in the bowels of Christ, think it possible you may be mistaken" about the course you and President Bush urge us to adopt to fight drugs. The path you propose of more police, more jails, use of the military in foreign countries, harsh penalties for drug users, and a whole panoply of repressive measures can only make a bad situation worse. The drug war cannot be won by those tactics without undermining the human liberty and individual freedom that you and I cherish.
In the end, what will happen? We can change. Or we can blindly, out of unquestioning ignorance, or knowingly, out of blatant self-interest, do more of the same. One of Canadas leading scholars on drug policy, the late Chester N. Mitchell, asks:
When will the drug wars end? Unlike military campaigns, internal wars of persecution are notoriously long-lived. Past wars against witches, Jews, Moslems, Christian martyrs and other scapegoats often lasted for centuries, and the drug war may be no exception. The drug battle lines were drawn up years before the 1917 Communist revolution in Russia, and when the first people to walk on Mars return to Earth sometime in the 21st century, they will probably be greeted by newspaper headlines announcing the familiar, depressing catalogues of drug busts, corruption scandals and violent deaths of inner-city youths killed in drug turf battles. For now, compromise seems impossible because governments keep demanding the unconditional surrender of all drug offenders. But possessing no organization, army or headquarters, drug offenders cannot surrender en masse. Strictly speaking, they cannot be warred against; they can only be persecuted.
As modern people we like to flatter ourselves that the problems we face are entirely new. . . . The alleged novelty of our problems explains our failure to solve them, and it also rationalizes a reliance on technological fixes, like herbicides, wire-tapping and helicopter surveillance when, at heart, the drug crisis is a replay of the ancient battle between faith and science, between the haves and the have-nots, between the judges and the judged.
Eugene Oscapella, B.A. LL.B., LL.M.
Barrister and Solicitor
70 MacDonald Street
Ottawa, Ontario Canada K2P 1H6
Tel: (613) 238-5909
Fax: (613) 238-2891
Web site: http://fox.nstn.ca/~eoscapel