Regulate: the Only Viable Option

Domingo Comas

Prohibition or legalization of drugs, a false debate – by Domingo Comas Arnau

It is not easy dealing with the issue of the legal status of drugs, a difficulty which can be attributed to the complexity of the subject, but in fact having much more to do with their condition as an issue of theoretical and ideological debate, presented in a gleeful manner at the cusp of the actual social processes and practices. Thus, in the debate between the supporters of  "legalization" and the supporters of "illegality", both boast favourable reasons and scientific evidence, but the first are seen by the second as "evildoers who try to pervert the youth",  while the latter represent to the first,  the most rancid and hypocritical "moral entrepreneurs". With this perspective it is not surprising that the reasons and evidence here and there are anything other than “reversed arguments“, and on many occasions "invented"”.

Perhaps, therefore, with the description of reality, explanations, and even empirical evidence, they are little concerned with the protagonists of the debate. The only things that seem to matter are the arguments of the enemy and the need to beat them. In fact, if this text is published in a journal, they would change it, as they have done on many occasions, having the author write "against legalization" or "in favour of legalization," according to what to them would seem more convenient.

As a result, assuming a position in this paralyzing dichotomy is not easy. On the one hand, the mere allegation of some hype around the teenage consumption is interpreted by some as a “dangerous trivialization" (where not ill-intentioned), on the other hand, use of the "addiction” classification implies, to others, an assault on human rights.

Fundación AteneaDomingo Comas Arnau has a PhD in Political Science and Sociology, along with a degree in anthropology, he is a professor at the National University of Distance Education (UNED), and active researcher through various publications in the areas of addiction, residential centres, youth, social exclusion and methodology research. He has held various tasks for the government and served in a supervisor capacity for intervention programs aimed at people with extreme difficulties. Since its inception in 1986, he has been chairing the Atenea Foundation (formerly group GID).

Demonstration in Minneapolis

It is also true that this dichotomy has been dramatically transformed in the last three decades. When "The use of drugs in Youth” was published in 1984, tobacco and alcohol were the products of nature, almost divine, with exclusively positive effects and  consequences, while illegal drugs were diabolical products of unspeakable destructive effects. The book’s great impact on the media (perhaps because it was presented by Ernest Lluch and Javier Solana), which examined the consumption (and consequences) of all of them, and identified them as drugs, led to certain media to denounce (in headlines and editorials) to "those who seek to mask the serious drug problem among young people talking about alcohol.” Something nobody would dare to say today.

In addition, until the decade of the 90s (in Spain at least), the arsenal of psychoactive products was greatly limited, the "natural” drugs (tobacco, alcohol, opiates, cannabis, cocaine, etc…) were the most consumed, while psychotropic drugs (hallucinogens, amphetamines and benzodiazepines) took a residual share. While, today, an unstoppable supply of new psychoactive drugs (including substitutes), sustain most of the consumption of drugs. Despite epidemiological studies continuing to provide data only on the traditional use of alcohol and illegal drugs, perhaps because the Spanish National Plan on Drugs uses questionnaires designed in 1991, they do not pose the questions pertaining to the current model of consumption.

A clear example of this projection is the fact that the institutional players say that "there is no heroin problem", when we have a large population in the substitution programs. An invisible population in terms of traditional consumption, but that should be visible when describing the current panorama of psychoactive substance and/or psychoactive drug use. It is, in any case, of an invisibility similar to what took place with alcohol thirty years ago.

At the same time, we must bear in mind that both tobacco and alcohol have entered into a process of increasing controls, and the illegal drugs (with exceptions such as cocaine), are used with increasing frequency in therapeutic strategies to reduce consumption and harm. This is a process of confluence that having eliminated in daily practice the radical dichotomy between legal and illegal drugs, does not appear to have influenced those who continue to stubbornly defend the fiction of an antagonism that is sustained on a shared fantasy.

The argument of responsibility

All these changes are well known in the professional field and yet there are many who publicly and notoriously avoid referring to them. Why do they do it? According to them, it is because of their "responsibility" to protect society, "teenagers” in particular, from the dangers posed by drugs. It is assumed that by alluding to uncertain hazards (invented even), one can prevent drug use at "very early ages". It is true that such drugs pose risks, but do the exaggeration of the levels of consumption and associated risks constitute an effective preventive message? I think we all know that it does not. However, this is the main argument for a "call to responsibility" that is both false and counterproductive.

A call that many supporters of legalization also adopted while inverting the causal order: the risk, and the transgression, is precisely what makes drugs attractive. If we eliminate this aura, consumption will be reduced and the risks will disappear. Something that we all know took place with tobacco and alcohol, which were the risk-free drugs, and were the least consumed drugs in the past few decades.

The real responsibility lies with the truth and transparency. To invent risks is immoral and dangerous, and to deny all risks is just as immoral and dangerous. In reality, both arguments are equally irresponsible, because they do not focus on social needs and solutions, but in a rivalry that feeds and gives them cultural, political and ideological leadership, despite their producing serious consequences for society.

The exchange of political and ideological positions

Tablets of Lexotanil (Bromazépam), sold by Hoffmann-La Roche

As if not enough, we can observe how the corresponding ideological "prohibitionism" and "legalization" have also been radically transformed. Thus, in the origins of the debate, in the first third of the twentieth century, the movement in favour of drug control was ideologically articulated from an alliance formed by the political organizations of the left and religious groups more open and progressive socially. In Spain, this alliance included, with a certain prominence, the CNT and the UGT (National Confederation of Labour and General Union of Workers) and hygienist physicians in their majority linked to the PSOE (Spanish Socialist Workers’ Party), or to the republican parties, to the small Protestant communities located in marginal areas, as well as to a couple of bishops supporting the social Catholicism and who were rebuked for their positions. On the other hand, those in favour of maintaining the legalization were placed on the more conservative area, including the institutions of the State, and the religious hierarchy.

After the Second World War (the civil war, and post-war period in the case of Spain), they reached a certain level of unanimity, and the social dichotomy between legal drugs (acceptable) and illegal drugs (dangerous) remained without cracks for a given period. Only some concrete figures, with an aristocratic and transgressive profile, disagreed with this consensus.

But the decade of the 60s changed this map of political and cultural consensus. An unprecedented alliance was forged between the "countercultural movements" and some political organizations of the left, to claim the end of the "prohibitionism". At the same time, the "counterculture" action promoted the use of illegal drugs, which rose substantially.

In Spain, this did not occur until the democratic transition, when a large sector of the political left moved away from its traditional position (the drugs as a threat to the working class) trying to draw closer to the "youth culture". It is a well-known case of the Maoist organizations expelling members who smoked cannabis, but that, as of a certain date, promoted the "collective smoking" of militants who, with great coughs, sought therefore to attract "the youth". At the same time, the political organizations and conservative culture, rather tolerant with the affairs of illegal drugs in Spain (in fact, Francoism took years to sign the UN conventions, which it never implemented), also adopted, suddenly, a repressive discourse against illegal drugs. A vision that also raises doubts was consolidated in the large left-wing political parties, perhaps by the influence of an active institutional group of "public health” professionals.

In turn, in the 80s, the emergence of the discourse "favourable to legalization" by neo-liberal economists, in particular the dominant group of the University of Chicago divided the opinion of the new political right that was taking shape at that time through a liberal-conservative alliance.

At present, with regard to the legal status of drugs, the political positions appear fragmented by the new ideological identities. On the one hand, the political right is cleaved, divided between the traditionalist and conservative groups, who demand harsher and more active repressive policies, and on the other hand, the "liberal", whose think-thank is betting on the "free-trade" drugs. On the other hand, the political left shows a similar fragmentation, albeit between a speech that adopts the perspective of public health and the "scientific evidence" in relation to the "brain damage", as against some sectors who are calling for actions that have already occurred, although disguised as "damage reduction", and which have been prominent in the most varied political groups that have been in power.

This mismatch between reality and ideology explains the paradox of the media arguments on "what should be done", and which, as a general rule, contain regulation proposals that have already been implemented.

What does it mean to “regulate access to drugs”?

If we take the already existing regulation on the one hand, and the rhetoric of the pseudo-debate between “prohibition” and “legalisation” on the other, we can be clear that this regulation supposes the establishing of mechanisms and norms for accessing a product.

Normal procedures consist of establishing an administrative regulation which determines the territory of the positive “authorisation”, with administrative sanctions for breaking the rules, while prohibition and criminal sanctions diminish in importance.  Plus, in practice the “authorised” status brings with it an auto-regulation which, projected across society as a whole, has dramatically reduced the problems associated with consumption.  The results suggest that control exercised by “authorised agents” is more effective than formal institutional control.  But, further to this, to “regulate” supposes the application of a “price and licensing policy”  which would on occasion be dissuasive (but not so dissuasive as to create a black market), and on other occasions it would be interventionist (up to free of charge) so that consumers are influenced in favour of a certain consumption habits.

These are real policies which have been applied and, at least for now, have worked somewhat effectively.  By way of example, let’s look at how this regulation has been applied substance by substance.

Newsies smoking in St. Louis, 1910In the case of tobacco, regulation began rather tentatively some years ago in Spain, but has progressed quickly, in part as a result of international pressure.  There is still some way to go before we can compare ourselves with the most developed countries, where tobacco is the most advanced example of regulation, and one which has led to spectacular reductions in the number of smokers and smoking-related deaths.  Undoubtedly, the chosen path, with more or less active cycles, will lead to international organisations achieving their objectives within a few years, although the ideal of a “smoke-free generation” seems rhetorical and unrealistic.

However, the regulation of alcohol in our country is progressing less decisively.  The fuss over the Alcohol Law tabled in 2007 is a clear example of this lagging behind compared with other countries.  This can be partly attributed to the narrowness of the debate, which linked consumption (and its consequences) exclusively to young people and in particular adolescents.  As a result, the message was sent that regulating alcohol is unnecessary (except in relation to drink-driving) because it is an exclusively adolescent issue.

Psychoactive prescription drugs are also heavily regulated.  They are myriad; an almost limitless arsenal in the hands of healthcare professionals, and almost exclusively in the hands of mental healthcare professionals.  Consumption is very high, and trends indicate this will surpass (or has already surpassed) the level and frequency of tobacco and alcohol consumption.  Clearly, this is not being perceived as a “problem” – except for those sections of society who oppose “drug-centred therapy” – in part because, with regulation, it is not.  However, the excess, or ubiquity of regulation, combined with exaggerated reports of their effects has led to the emergence of a new black market for such drugs (and other similar ones which are illegally manufactured, or at least not used as primarily intended due to some secondary effect), which must be used as an example for “balanced regulation” of psychoactive substances.

Alcohol and cannabis prohibition signs

Cannabis has become the cornerstone of regulatory policy.  In fact, it has not been regulated, but to make up for this a wide degree of tolerance has been established (offset against clear discretion in the application of criminal and administrative sanctions).  At the same time, the so-called “pro-cannabis movement” has proposed a relatively well designed programme of regulation, which nonetheless met with fierce opposition from the authorities.   This is odd because it relates to a very similar programme of regulation to one proposed by the self-same authorities a few years ago.  To some it is surprising that reform of articles 23 and 25 of the Protection of Civilian Safety law is being rejected (which includes fines for smoking joints) because, when all of a sudden, the “cannabis movement” is presenting a similar and fuller initiative.

However, as has been argued, this rejection was a reaction to attempts by the “cannabis lobby” to “take the first step towards achieving complete legalisation”.  It is an easily explained reaction: this is simply a case of throwing the baby out with the bathwater.

When it comes to opiates, regulation is very complex, but almost total.  On the one hand this is in response to the logic of substitution (and forms part of a policy of harm reduction).  It is a logic which in many countries includes the prescription of heroin.  But such regulation has in every case led to the maintenance of a black market for opiates, aimed predominantly at casual users (and some very marginal addicts, though most have moved over to cocaine use), who do not fall into the cohort at which regulation is aimed, i.e. those who could be diagnosed as addicts.

Cocaine is the only non-regulated substance and is possibly the most difficult to regulate because its illegality does not allow for the adoption of strategies similar to those used with alcohol, with which it shares its recreational nature.  Likewise, it shares with alcohol a total lack (or perhaps an inability to find) easily controllable “substitutes”.  Recommending agonist medication appears to be the most accessible, but as is the case with opiates, they are only given to active addicts.  Aside from this, cocaine is distributed through traditional methods of trafficking, including the use of violence, and is thus the only one which still offers an image of “transgression” for certain cohorts.  Without doubt the unresolved question of cocaine regulation must be the next priority area of focus for drugs policy.

Aside from these there are other substances which have been regulated to greater or lesser effect, but which have low numbers of users, such as industrial solvents and some veterinary products.  More difficult to regulate seem to be “botanical drugs” which grow scattered about the countryside.  In each case consumption is cyclical or anecdotal which, based on a few individual occurrences, always present as pathological in the media.

Doping substances (and energizers) deserve separate mention and a special issue of ATHENAI has been dedicated to them.

In summary, regulation has been the central (albeit scarcely talked about) drugs policy over the past 20 years.  Significant progress has been made with the policy, although there remain unregulated (or inadequately regulated) areas, which prompts us to act and correct, while maintaining an overall policy which has dramatically reduced the political, social and healthcare consequences of drug taking.

The Atenea Foundation's Position

In this regard, what should the Atenea Foundation's position be? Simply put, we are in favour of the regulatory policies already in place and we are calling for the development of new regulatory processes, which would reasonably and cautiously allow us to move towards a generalised regulation of legal and illigal drugs, and, of course, psychotropic prescription drugs.

This is a position which will undoubtedly provoke a reaction from many social actors, from many of the organizations which make up the social movement against drugs, from the majority of public administrations and from almost all those who support legalisation. In other words, we're going to make everyone mad.

But such a reaction does not derive from disagreement, since in fact all social organisations collaborate, currently and actively, on regulatory policy.  When it comes to public administration (whoever it is in power) they are the ones who have progressively established such regulation.  How is it therefore possible for them to reject what they practice?  Is it hypocrisy?  In some ways it is, albeit supported by the rhetoric of a poorly understood supposed responsibility (for young people). 

"No smoking, no vaping"
Yet, perhaps the most vocal critics will come from supporters of ‘legalisation’ who will undoubtedly interpret “regulation” as a new form of social control.  Without realising that this form of external control supposes, in large part, a form of self-regulation and the option they have been calling for as an alternative to criminal control for decades now.  In any case and in practice, regulation is proving fairly effective in resolving the so-called “perverse consequences of criminalisation”.

In other words, this is not about disagreement on adopted positions, but about expressing them clearly and publicly.  Because in doing so we shrink the space available for rhetoric thereby leaving a significant number of those who live to “produce rhetoric” without space.

Lastly, we must express a degree of unease towards certain regulatory practices, such as those implemented up to now.  Regulation has been articulated from a clearly health-related perspective, which seems adequate, albeit not exhaustively so.  Regulation is also a matter of other public policies, of citizenship and societal participation.  To attribute all competencies, via a hierarchical, though occasionally false debate of the scientific evidence opens the door to another paralyzing dichotomy; who legitimately can make policy decisions, the healthcare system or the peoples?

Domingo COMAS ARNAUPresident of the Atenea Fondation