Saturday, 8 October 2011


This essay will seek to evaluate the long-term effects that the legal and illegal use, classification and control of drugs has had on modern society. Using examples from both the local and global levels it will assess drug policies from the United Kingdom and United States whilst drawing on the work of criminological theorists, such as Blagg (2008a), whose work will be used to draw parallels between the incarceration of the indigenous Aboriginal population in Australasia and racialized patterns of incarceration in the USA and U.K. Citing Mooney (2008), it will seek to establish a causal link between the identification of problem populations, legal and illegal drug control and drawing from the works of Tonry (1995), Wacquant (2005), Smith & Hattery (2010) the mass incarceration policies being implemented by the United States and, drawing from Webster (2007) more recently the United Kingdom.
It will investigate how the controls imposed by those in power have led to many medical professionals being unable and/or unwilling to prescribe the relevant opioid pain control medication to their patients through over zealous legal controls or limitations on the quantities and types of drugs dispensed. Conversely however, the lack of strict regulation and control of the pharmaceutical companies has, it will be argued, engendered a system where abuse of power has led to the miss-selling drug products which has resulted in the  deaths of thousands of customers. Whilst no company employees were found criminally liable the justice was seen to be administered through regulatory legal responses.
The essay will critically review the control of drugs, and will demonstrate how the policy responses and alternatives offered by leading medical practitioners, academics and policy research groups have been paid scant attention by criminal justice policy makers. To facilitate this critical review the essay will access and reference a number of literary sources. Drawing from the works of Jeffrey Reiman (2007) who directs our attention to the inbuilt failings of state controlled criminal justice with his ‘pyrrhic defeat’ theory, Lois Wacquant (2005) who exposes the racial bias in the American penal system, and Jane C. Ballantyne (2009), who identifies the conflicts implicit in the prescription of opiate medication by practitioners.
In policy terms the essay will draw on a number of resources from which the failure of the current drug control policies will be clearly evidenced; The Report of the RSA Commission on Illegal Drugs, Communities and Public Policy (2007) highlights a number of failings in the current drug policy, whilst The United Kingdom Drug Policy Commission - A Response to Drugs: Our Community, Your Say Consultation Paper (2007) questions the ‘zero tolerance’ approach of drug policy by highlighting the lack of evidence that street level enforcement activity works. An Analysis of UK Drug Policy A Monograph Prepared for the UK Drug Policy Commission (Reuter and Stevens 2007) exposes the clear lack of research study into the benefits or otherwise of drug enforcement and evidences the need to expand capacity in the treatment and harm reduction fields. To bring balance to the discourse a response to the aforementioned reviews by Neil McKeganey (2007) who questions the approach proffered by the RSA & UKDPC and highlights the failings of their analyses.
This essay broadly endorses the view that the control of legal and illegal drugs has been and continues to be at the behest of the powerful, who perpetrate harms and violence on communities through mass incarceration and a failed criminal justice policy at both the global and local level. 
Whilst drug control legislation is seen by the majority as a means of protecting society from itself, closer examination of the field reveals that there are a number of hidden harms resulting from it. Drug control legislation by its very nature targets and identifies drug users and suppliers; it in effect creates a problem population.  As shown by Mooney (2008) populations of this nature once defined are open to the discrimination and stigmatization of society and policymakers. This social devaluation allows for them to be viewed as surplus to the needs of society but at the same time through the politicization of crime they remain the subject of central debate and policy decisions.  Smith and Hattery (2010) continue this theme in the devaluation of problem populations when they question if the ‘War on Drugs’ in the USA whilst appearing on face value to deter the use and supply of controlled substances has a hidden intended consequence of removing a problem population ( in this case, African American males) from society. Whilst highlighting the harm caused to African American communities by their mass racialized incarceration (Wacquant 2005) as a result of the ‘Rockefeller Drug laws’, Smith and Hattery (2010) indentify the harms caused to the community by the loss of capital in human, financial, social and political terms to the Prison Industrial Complex of the United States. Wright (1997) suggests that the capitalist US state views African American males as surplus to the requirements of the capitalist machine and having no skills to offer are, as shown earlier by Mooney (2008) open to discrimination, devaluation and stigmatization,  they are easily contained by those in power within the Prison Industrial Complex or the ghetto. Continuing in the racialized theme Tonry (1995) argues that those in power were fully aware that in 1970’s America drug use in general was declining, but was not doing so in the problem areas; those areas of high inner city deprivation and by the problem populations residing there; the African American and Hispanic communities. Thus the powerful elite knew that the ‘war on drugs’ would be a waged against the young from the African American and Hispanic communities with both Tonry (1995) and Wacquant (2005) providing clear examples, as shown above, to this effect, as Quinney (1977) theorized; it is through the enactment and application of laws that the powerful are able to preserve their social and economic order and maintain the status quo to their own benefit.

The racial bias inherent in the US is mirrored by Webster (2007) who finds that Afro- Caribbean youths in the UK are subject to greater stop and arrests and to higher than average prosecutions as opposed to cautions by police. Once entered into the justice system they are subject of greater indictable proceedings and remands, whilst if convicted have a higher than average chance of facing a custodial sentence than white offenders. What is clear is the subjective approach by society enacting laws that are made by the rich and powerful white male to protect society from any breach of normal white masculine behaviours, Hudson (2006). Blagg (2008a) adds to the work of Hudson (2006) when he reveals the high rate of incarceration of the indigenous Australian Aboriginals within the Australian penal establishment, whilst making up just two percent of the population they account for forty two percent of the prison population. This strongly parallels the USA with African American males making up seven percent of the population but over fifty percent of the incarcerated population. (Drake, Muncie, Westmarland, 2010)  What Blagg clearly reveals is the subjective approach by Australia’s white political masters  to the ‘problem population’ of the Aboriginal community who like the African American population in the US are disproportionally represented in drug and alcohol abuse.

In more general terms illegal and legal drug control, whilst central to crime policy provides a clear example of what Quinney (1977) although writing from a Marxist perspective argued was the function of criminal justice systems; that it is through law that the powerful ruling class maintain the social order to promote their own social and economic interests. By setting the agenda and tailoring crime control and justice to identify and suppress the problem any threat to power can be neutralized by apparently legitimate means. As argued by Box (1987) this arrangement places certain groups identified as a problem or threat more prone to arrest not because they commit more crime but because they are perceived by society to be unsafe. Although not commenting directly on illegal and legal drug control policy one could be forgiven for so concluding that Reiman (2007) had the subject in mind when he argues that the aim of criminal justice is to create and maintain a constant perceived threat to society. This is achieved by defining a problem population and ensuring that their criminality is amplified to show that the system is failing to control them. Once identified the focus of criminal justice can be brought to bear on them whilst the crimes of the rich and powerful go unchallenged.This Reiman theorises is a ‘pyrrhic defeat’ in which the system serves the powerful notby its success but by its inbuilt failures.
Whilst the control of illegal drugs produces harms on communities at both a local and global level, the controls on legal drugs have a similar effect. The community in question are the prescribing clinicians and their patients who suffer from ill-judged and overzealous prescription controls to the miss-selling by powerful pharmaceutical companies who appear to be immune from criminal prosecution. The control of legal drugs pose a different threat through the ease of abuse and potential for onward supply to non-medical users. Whilst this is one aspect of the supply of legal drugs that ensure strict controls are placed on clinicians it also has an adverse affect on the care of patients who require pain control. In the US doctors face loss of medical license, criminal prosecution, and imprisonment’ (Ballantyne, p.811, 2007) if they are found guilty of over or wrongly prescribing, this has engendered a fear culture which result in harm being caused to patients who do not receive sufficient pain control. These restraints placed on clinicians by the authorities can become strained when pharmaceutical companies knowingly mislead them. In 1996 Purdue Pharma introduced Oxycontin, sustained-release oxycodone preparation. This was highly marketed and promoted to the medical profession and patients who were told
‘…in much of its promotional campaign — in literature and audiotapes for physicians, brochures and videotapes for patients, and its "Partners AgainstPain" Web site-Purdue claimed that the risk of addiction from OxyContin was extremely small’ (Van Zee, p.223, 2009)
In 2002 the US Drug Enforcement Agency reported that 464 deaths were attributable to Oxycontin overdose, (Brown University 2002). Whilst the harm caused by Oxycontin became known the company continued to promote it in an aggressive manner, in 2001 alone the company spent $200 million on marketing (Van Zee 2009). They began targeting the non-malign pain control segment where the benefits of opioid pain control are less well documented. Whilst the Federal Drug and Food Administration looked on, opioid pain control drugs became the illicit drug of choice being more popular than heroin and cocaine. Unsurprisingly then that in 2002
‘unintentional overdose deaths from prescription opioids surpassed those from heroin and cocaine nationwide’ (Van Zee, p.224, 2009) 
In 2007 the growing number of deaths led to Purdue Pharma being indicted, which resulted in the company receiving a $600 million fine. Whilst this is a large sum, compared to the $2.8 billion in revenue OxyContin produced it does not seem such a heavy fine. No executives were incarcerated and no criminal records were created. On such evidence one would find it hard to argue against the theorists such as Reiman, Box, Quinney et al, that justice operates to protect the rich and powerful, whilst the lesser crimes of the poor are prioritised. 

Drug policy within the UK has remained clearly set to prioritise the criminal justice agenda with harm reduction a secondary objective. Drugs policy is based on the enforcement of The Misuse of Drugs Act 1971 and the categories of drugs therein classified as controlled substances. As noted earlier this essay takes a critical view in respect of the policy and has so far argued by evidencing the work of theorists that the ‘war on drugs’ and indeed drug policy in general is being used a crutch to maintain the social order for the ruling elite, and in so doing has caused more harm to society and communities  both locally and globally than the use of the drugs themselves. To progress this viewpoint and underline the inadequacy of the approach a similar critical view will be taken through the evidence provided by a number of policy responses. The Royal Society for the encouragement of Arts, Manufactures & Commerce in its report ‘Drugs - facing facts: The Report of the RSA Commission on Illegal Drugs,
Communities and Public Policy’ (2007), is categorical in its dislike of the approach taken by current UK Drug policy. It argues that the implementation of policy is clearly biased toward a criminal justice outcome which neglects responses towards health and social care. Recognising that the system is centered on criminal justice and crime it seeks for policymakers to take a wider more holistic view and realize that a totally prohibitionist approach is one that will lead to failure. It states quite unequivocally, Drugs policy in its present form has largely been a failure. We know it has substantially failed because in the nearly four decades since the Misuse of Drugs Act came into force the number of addicts and others dependent on drugs has soared and the social problems associated with substance abuse have worsened dramatically. (RSA, 2007, p. 21)
The mixed messages promoted by the policy are called into question explaining that on one hand the policy publicly demonstrates a strictly prohibitionist rhetoric, whilst on the other it takes a more measured approach in reducing harms. These mixed messages it argues condemns the policy to be perceived as confusing and contradictory. The report concludes by arguing for policy to be refocused on the need to reduce harm and become harm reduction centered rather than simply a criminal justice tool. In their ‘Analysis of UK Drug Policy’ Reuter & Steven (2007) clearly evidence that drug use increased in the last quarter of the 20th century with a stabalisation after the millennium at record high numbers. This increase in drug use appears to have occurred when according to The Home Office there has been an increase in seizures which they have  hailed as a ‘key achievement’. The Prime Ministers Strategy Unit conclude however that drug seizures do not impact on the reduction of harms. With international drug studies showing that drug seizures do not reduce users numbers. Citing Degenhardt et al (2006) the authors show that whilst drug seizures in Australia increased between 1996 and 2004 the price of drugs between 1997 and 2004 decreased. Whilst showing the inadequacies of drug policy through seizures, harm reduction strategies clearly evidence that needle exchanges and methadone treatment reduce the harm to the installed user base. Whilst enforcement has been the dominant theme of drug policy they argue that if successful then the price should have increased instead of the noted decrease and availability should have reduced which does not appear to be the case due to the steady increase in users.  The limits of drug policy are examined by the authors who find that 
The most fundamental point to understand about drug policy is that there is little evidence that it can influence the number of drug users or the share of users who are dependent.’ (Reuter and Stevens, p. 81, 2007) The authors can find no evidence to support the claim that stricter enforcement sends a message that results in less drug use.  In research terms the report concludes that there is a limited pool from which to draw and that which there is, is weighted towards harm reduction studies. One strong criticism is that there is little research on the effect of enforcement; this is also a finding of the UK Drug Policy Commission whose work is reviewed later in this essay.  In conclusion Reuter and Stevens (2007) find that Government drug policy has little effect on rates of drug use, it does however have a large effect on the amount of drug related harm incurred by users and communities.

The UK Drug Policy Commission is an independent charitable body whose remit is to analyse and explore options for drug policy. In response to the UK Governments Drug Strategy Consultation in 2007 the Commission authored a report which highlighted a number of important policy omissions. The reports acknowledges that achievements have been made in the numbers of people receiving treatment during the previous 10 years, however it immediately identifies, There is a scarcity of knowledge about ‘what works’ across many strands of the strategy which cannot be overestimated and should be of serious concern.’ (The UKDPC, p.1, 2007) Identifying this lack of knowledge base the report calls for a dedicated ‘pillar’ of research within a framework of independent evaluation. The report questions the polarised responses by politicians of being either ’soft’ or ‘tough’ on drugs with no real effort in pursuing what works. The success or otherwise of enforcement activity is laid bare it clearly states, ‘…there is no evidence that enforcement activity alone has any significant impact on street level drug market stability.’(The UKDPC, p.15, 2007) In raising the obvious question of why policymakers allow this, one is reminded of the Reiman (2007) and the ‘pyrrhic defeat’ theory put forward by him. The report indentifies enforcement as the largest spend in the policy but in seeking to have research prioritised reveals the clear lack of any.  What is evidenced by the report is the harms caused by zealous enforcement, with heightened community tensions mostly it states within the black communities, mirroring the racialized themes put forward by Tonry (1995) and Wacquant (2005). Returning to the research or lack thereof the report questions how an effective policy can be implemented if the cause and nature of the drug problem is not known, and conversely what interventions work. This gap in knowledge was evidenced in the governments 1998  strategy document however no action was taken and many remain. The report raises important questions as to how policy is prioritised in particular why if  the majority of spending is targeted toward enforcement, there is no research into how effective enforcement is. The conclusion, if one takes into consideration the work of theorists like Tonry, Wacquant and Quinney et al, is that this is a deliberate omission designed to perpetuate the continuing ‘war on drugs’ which prioritises enforcement and prevention over harm reduction.
McKeganey (2007) considered the impact of a drug policy that would prioritise harm reduction. He finds that such an approach may on the surface be appealing however he argues that current policy allows society to clearly differentiate between behaviour that is acceptable or unacceptable, it clearly send out the message as to what is legal and illegal. He questions the RSA and UKDPC reports recommendations that policy requires to be refocused onto a harm reduction led platform. He argues that in assessing any drug policy one must take into consideration not only the numbers of people using drugs but also the numbers in the entire population who are not using. By turning the figures on their head in this way shows  allows current drug policy to be viewed as a success in so much as the majority of the population are not accessing drugs. McKeganey argues that a policy that prioritises the harms caused by drugs would change the focus from the drug use to the effect of that drug use, this he argues would create a moral vacuum in which drug use was neither seen as illegal or legal but accepted as the norm. Whilst McKeganey offers no new evidence within his review he offers an alternate understanding of the issues involved in drug policy.

This essay has brought a critical review to the legal and illegal use, classification and control of drugs. It has shown that the policies promoted by the western governments whilst tailored to suite the political landscape of each have in general one overarching theme; enforcement. These policies enacted by the US, UK and Australia are responsible for far greater harms being caused to communities than the scourge of the drug abuse they purport to combat. Following Quinney (1977) the mass racialization of the US prison population as described by Wacquant (2005), and the deliberate targeting of the African American and Hispanic communities as shown by Tonry (1995), clearly shows that the ‘war on drugs’ was used as a means to preserve the economic and social order by the powerful. 
Webster (2007) and Blagg (2008a) both evidence that this ‘punitive turn’ was mirrored in the UK with Afro Caribbean youths and in Australia with the Aboriginal population being more prone to imprisonment than their white counter parts. On assessing critical reviews of UK drug policy by the UKDPC (2007) and The RSA (2007) one finds glaring omissions in any true research into the value or success of enforcement led interventions. This is the more confusing when one considers that the greatest spending from drug policy is on enforcement, one would assume that politicians would require to evidence value for money. The fact that 40 years of enforcement has failed to deliver, with drug availability up and cost down, I would fundamentally argue can only lead to the conclusion that Reiman (2007) is correct, that this ‘pyrrhic defeat’ is manufactured at the behest of the powerful. 
In comparing the legal use and control of drugs one finds that once again the greater harms caused by the powerful (Purdue Pharma) are resolved not through criminal prosecution or indeed pursued to the same extent as the African America and Hispanic communities torn apart by the ‘war on drugs’ are, the solution is to simply hand out monetary penalty to the guilty.  There is overwhelming evidence from theorists, criminologists, and independent policy reviews that clearly and unambiguously point towards the failure of current drug policy at both the local and global levels. The harm and violence perpetrated by the powerful on communities to maintain the status quo in society goes unchallenged whilst the ‘war on drugs’ continues to fail those same communities whom it is espoused to protect.

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