At this point, it is as well-worn a cliché as any to say the war on drugs has failed, by any chosen metric. According to some statistical measures, 2020 has been the deadliest year on record for deaths related to overdoses, driven by an increase in the toxicity of the illicit drug supply across the country. Meanwhile, many individuals continue to be held in prisons and other conditions of restricted freedoms due only to having a substance abuse problem. Virtually everyone in politics, with the exception of a few hard right law-and-order holdovers, acknowledges this failure either implicitly or tacitly. Though they may lack the political courage to call for outright decriminalization of all substances, even politicians from the center and right of the spectrum have increasingly given support to what they call “public health” measures to address drug use through non-criminal means.
An instructive example is the widespread launch and legal operating space provided for safe drug use sites by the centre-right BC Liberal government. Even the Doug Ford government in Ontario, though it has cut funding for some sites and tinkered with the operational mandates of remaining sites, has been reluctant to endorse a widespread crackdown. The term “opioid crisis” may be overused to the point where it can seem meaningless but one of the surest signs of a crisis is that it overturns old political patterns. Much has been written about how the demographic and socioeconomic character of the popular image of the “drug user” has been transformed into something more sympathetic to middle class voter bases within the new reality.
When combined with the recent legalization of recreational marijuana in Canada, it may seem that a corner has been turned from the hardline policies of the recent past where, for example, the Harper government was suing the InSite safe injection facility in an attempt to force it to shut down. Recent leaders of the federal Conservative Party have voiced little opinion either way on matters of drug policy, aside from some perfunctory objections to the marijuana legalization bill before its passage (notably these were almost entirely silenced after it was a done deal). The Liberal Party membership, not a group usually known for its radicalism, even passed a resolution endorsing decriminalization of all drugs at their most recent policy convention (though Justin Trudeau did note afterwards that this would not necessarily be binding on his government).
At the same time, it is true that the effects of historical and continued criminalization of drug use are still with us. Though the federal government has provided for a process to remove certain marijuana-related charges from criminal records at no cost, it is doubtless true that these records have disproportionately affected lower-income and racialized (particularly Black and Indigenous) individuals, and there have yet been no real proposals for reparative measures in this regard. Furthermore, the ownership of marijuana companies has tended to concentrate in ways that make clear they do not have an interest in pursuing anything other than profits. Many of these company boards contain ex-politicians and law enforcement officials who saw no problem with the criminalization of marijuana use in their previous jobs.
Though it is an imperative from both human compassion and rational policy sense to back the decriminalization of drug use and possession, a robust policy to deal with the public health consequences of drug use must not fall into the libertarian fallacy of legalization as the inherent goal.
Companies selling potentially addictive/harmful substances are, with few exceptions, for-profit operations, and therefore have perverse incentives when it comes to public health. This can be easily recognized in regard to tobacco companies, which is why measures to both restrict smoking and seek compensation for public health systems affected by tobacco use are important. The same is true of the pharmaceutical companies whose policies in many ways sparked the opioid crisis and are now facing similar lawsuits from a variety of governments regarding misleading marketing and corrupt business practices. The actions of medical drug manufacturers regarding the opioid crisis should give pause in terms of adopting an ultra-libertarian, “legalize it all” approach when we are speaking within the context of a market economy. Companies have clear incentives to foster addiction through misleading claims, aggressive promotion and so on and these should be resisted, rather than indulged, by governments.
Substance use and addiction is highly correlated with other indicators of socioeconomic distress, indicating that a sustainable approach to dealing with addiction must address the social conditions under which it occurs. The work of Johann Hari, amongst others, has spoken to the dynamic by which addiction to particular substances is often only partly chemically-based, meaning that many persons who try certain substances do not become functionally addicted as they exist within a more supportive overall social context. Furthermore, attempting to outright ban particular substances creates well-documented greater harms such as the violence attendant to black market economies and dissuasion from seeking treatment for fear of legal consequences. Effective policy approaches to substance abuse issues must start with the idea that no drug should be categorically criminalized as a substance. Space must be allowed in any legal framework for scientific study of substances, legitimate medical applications (e.g. LSD use in mental health treatment) and prescription treatment (e.g. prescribed heroin programs as in Switzerland). Though, a ban may be the correct tool to deal with some drugs which pose serious health concerns, this can only be ascertained after the scientific study of this substance and should not criminalize users. Further, addiction treatment services should be considered part of the mainstream public health system and funded accordingly. We should not be relying (except in highly unusual or community-specific circumstances) on non-profit “third sector” organizations for addiction treatment, as is the case in many communities currently.
A Coordinated Policy Approach
Beyond these two core principles, speaking of the overall regulatory framework around substances, all decisions on how to regulate substances and what category of regulation to place them in should be based on the best available science. There should be a preference towards placing new substances in a category where they can be accessed on a prescription/medical basis, rather than an open market basis (e.g. as like alcohol, tobacco, or marijuana currently). For certain substances (for instance opioids) the government should purchase, through legitimate medical manufacturers, and control a sufficient supply that can be distributed for prescription purposes. This approach is being piloted in British Columbia and certain communities in Ontario, though it has been criticized for being overly restrictive in practice. This will keep individuals with substance abuse problems relatively safe from the harms of unregulated street products, which have grown in the context of COVID-19 due to an increase in the toxicity of the drug supply.
It should also be noted that certain communities, particularly Indigenous communities, have had such a destructive relationship with particular substances that they must be allowed the jurisdictional control to outright ban those substances within their communities, even if that does contradict the overall approach of the government. The objection to this allowance could be raised that it may replicate the harms of existing prohibition at a micro-level and this may be true as far as it goes. However, in the interest of building non-coercive nation-to-nation relationships, this debate should occur primarily within the communities concerned, rather than being pushed in one direction or the other by outside forces.
In terms of legal action, a change in emphasis of enforcement towards the powerful and away from the vulnerable is required. Companies selling potentially addictive substances should be held liable for social harms/costs resulting from substance abuse insofar as these can be tied to misleading claims, advertising and so on (similar to the settlements with tobacco companies in earlier years). Active regulatory steps should also be made to create a better environment for people recovering from substance addiction (e.g. regulating alcohol advertising like tobacco advertising). To the extent that the government is focused on illegal drug supplies, emphasis of enforcement activities should be moved “upwards” from street-level dealers (many of whom are also users) to those further up the supply chain and in positions of power in criminal networks. The approach used by Portugal with specialized drug courts having the power to compel treatment in certain cases but not to levy criminal penalties is a potential model here.
To repeat the cliché, the War on Drugs has clearly failed and taking a criminal justice approach to the question of substance use/addiction is clearly endangering the lives of substance users, not to mention wasting the potential of large swathes of our society. Criminalization of use and possession of drugs clearly harms racialized communities and low-income populations disproportionately via selective enforcement of drug laws. Even the Canadian Association of Chiefs of Police recently called for decriminalization of simple drug possession, as sure a sign as any that public debate has moved on from the “just say no” era.
However, there are specific new challenges posed by legalization and the growing for-profit companies moving into the sale of marijuana and potentially other currently illicit substances at a later date. As much as there is no need to be prudish or exaggerate dangers, the problems posed by addictive substances must be recognized clearly and take objections to market-based solutions to social problems into account rather than leaning on libertarian perspectives. As in many other things, the market may save us from the authoritarianism of the state, but it is no substitute for a holistic approach to the wicked problem of public health.