US drug policy – from creating the problem, to part of the solution?

The US government has been the most influential actor in the history of the global drug control system, promoting an international approach rooted in its own faith in harsh punishment and aggressive supply reduction. For many years, US diplomatic and financial power has been directed at exporting the ‘war on drugs’ model, and building the relevant institutions and strategies into the domestic policies of countries in which they hold influence, in particular in Latin America.

We are now seeing a long overdue, and most welcome, reassessment in US federal drug policy (in parallel with the state-level cannabis regulation initiatives taking place in Washington and Colorado, with a number set to follow in the coming years). The Obama administration has increasingly been moving away from drug war rhetoric, and has more recently followed that up with practical policy action, for example in the areas of overdose prevention and sentencing reform. The latest national drug strategy document, published this week by ONDCP, continues this clear, if cautious, repositioning.

But there is a long way to go. There are hundreds of thousands of minor drug offenders who are still serving long sentences in US prisons as a result of the draconian sentencing policies of previous decades, and the patterns of drug control expenditure remain massively weighted towards interdiction and domestic enforcement. One of the main initiatives still promoted strongly by the US government, drug courts, are still rooted in this punishment paradigm.

And the structures for applying US influence internationally have yet to undergo any serious reform – thousands of US military, DEA and State Department officials continue to promote and implement enforcement-dominated policies around the world. With a new direction from the leadership, these resources could be used positively to reflect the shift that is occurring in US policy among international partners, and to promote a health- and human rights-based drug policy approach.

That said, the architects of the old system are increasingly engaging in the debate on how to refocus and modernise it. US diplomats are now referring to four key principles for the coming drug policy debate:

The integrity of the conventions

Given the lack of consensus between governments on the way forward for drug control, and the consequent difficulty of renegotiating international treaties through the UN procedures, it is not surprising that the US government wants to avoid what is sure to be a very difficult process to modernise the UN drug control conventions.

Emphasising flexibility

The increasing pressure the drug control system is under on a number of fronts has led to the US government’s defence of the integrity of the treaties while emphasising the broad flexibility that exists to allow governments to pursue different strategies. The conventions do have a high degree of ‘wiggle room’ that allows member states to justify alternative approaches on constitutional or health grounds – although regulated markets for recreational use are considered to be outside of the scope of the treaties. Attempts by countries to use the existing flexibilities are often the subject of controversy, based on different interpretations of the original texts. To avoid such controversies, the conventions do not need to be rewritten in their entirety, but they do need to be adjusted in some very important aspects through negotiation. For example, the scheduling of various substances according to level of risk and potential medical uses is inconsistent and out of date, and would benefit from a structured process of review. Similarly, the extent to which member states can experiment with new public health and/or regulatory approaches, without condemnation from the INCB, should be more clearly defined.

But the US government’s current position of emphasising the flexibility within the conventions – by which member states can pursue widely divergent policies while still claiming to adhere to a 50 year-old international consensus – carries a real risk. A situation could arise where more and more countries ‘defect’ from existing policy approaches, creating the conditions where the symbolic adherence to the treaties means very little in practice, and the system gradually become irrelevant to policy and practice on the ground.

Tolerating alternative strategies

In the past, any country trying to pursue policies or programmes that tolerate drug use, or some forms of production or distribution, has been roundly criticised by the International Narcotics Control Board (INCB) and/or other member states. There has been a particularly notable contrast between criticism of governments that have tried to introduce reforms which aim to protect citizens’ health (such as prescription of heroin, or drug consumption rooms), and silence regarding those governments pursuing repressive policies which contradict agreed international human rights standards (such as Thailand in the early 2000s, or Russia today).

The US call for more space to be created for national and local administrations to try new approaches that may not fully comply with previous interpretations of the drug control conventions is therefore most welcome. But there is a need for such an option to be codified in international agreements – such as a CND resolution or the UNGASS outcome document – and reflected in practice. The INCB will need to take a distinctly different view of policy experimentation in relation to the conventions, and powerful member states – including the USA – will need to stop using diplomatic and financial pressure to discourage well intentioned reforms.

Continuing the fight against organised crime

The criminal groups which control much of the international illicit drug market are often a threat to personal, and sometimes national, security. The objective of minimising the power and reach of these groups should therefore be shared by all those who care about rights, freedoms, and the rule of the law. The problem arises with the tactics used to engage in that fight – while there have been many short-term operational successes against traffickers across the world, too often drug law enforcement has itself created the conditions where the most ruthless and violent groups thrive. Similarly, governments engaging in an ‘arms race’ with powerful and wealthy trafficking groups have seen an increase in, rather than the desired suppression of, violence and corruption.

Smarter tactics are therefore needed to take illicit drug markets out of the hands of the most harmful and dangerous groups. For proponents of regulated markets, the best way to do this is to create legitimate business structures or state control of supply. However, even within the current drug control regime, there are ways for law enforcement agencies to ‘shape’ the illegal market in ways that minimise the power of organised crime, or the violence and corruption that they generate. The concept of targeted deterrence gives us a framework to consider what law enforcement agencies can do to create less violent and corrupting drug markets – creating what Vanda Felbab Brown refers to as ‘good criminals’.

The US government can play a valuable role in promoting these debates around smarter law enforcement and sentencing policies, and in disseminating best practices in prevention, harm reduction and treatment. But for this to happen, the political realisation that ‘eradicating, seizing, arresting, and punishing’ is no longer a sustainable drug strategy needs to filter down through the USA’s extensive global network of diplomats and drug control institutions.

Mike Trace, IDPC Chair