Why the harsh new criminalization is dumb

by danmalleck

I was recently asked why the federal Conservatives are so hell bent on pushing criminal legislation that includes 1980s era penalties for selling drugs.  More specifically, the new legislation will make mandatory minimum sentences for possession of moderate amounts of drugs like marijuana.  I guess having six plants makes you a trafficker, and there is no room for. er. judicious judicial judgement. (Sorry).

I’m not going to get into the history here, though if you wanted to, you could read some stuff by Marcel Martel, Catherine Carstairs, or Neil Boyd (there are others, too, like the book Panic and Indifference).  But since I have been asked about current policy changes, I’m going to reflect on why this policy is so out of place today.

Much of the negative commentary upon this legislation notes that it flies in the face of much of the last few decades approach to addressing what can be really problematic drug use.  For example, harm reduction to decouple the use of hard drugs like heroin from the criminal industrial complex and often gang-driven drug distribution networks, which also provide clean needles and social support for people who use hard drugs.

Historian David Courtwright wrote a brilliant book about a decade ago now called Forces of Habit in which, among other things, he asks the reader to consider the drug distribution industry as a business like any other.

Consider it: Legitimate businesses advertise, provide incentives (like “loss leaders,” coupons, buy one get one free deals, etc etc).  Drug dealers offer things like giving away some product, and then upping the price for more.  The first is considered normal business pracice, the second is considered heinous.

Legitimate businesses need to protect their product, usually through patent and copyright legislation.  Drug dealers have to protect their turf, expand their market through gang violence and other violent means, because they don’t have things like normal court system to use to protect their product.

It continues.  Legitimate businesses establish networks of distribution, work with border agencies to expedite transportation, deal with supply and demand problems, deal with the problem of “dumping” by competitor countries, or other businesses simply trying to undercut their hold on the market.

Think carefully about all of the things you hear about the illegitimate drug trade, and you’ll realize that much of what they do is precisely what legitimate businesses do, but the drug dealers do it in an environment where they are not only competing with other dealers, but they are trying to keep it out of the eyes of the police.  Their dealings are not with the border agencies and transportation companies, but with other criminal networks that can get product through borders and into the hands of distributors (aka: pushers).  These groups are criminals, they protect their turf with guns and violence, and often expand their market with other illegal or shady dealings.

It is, therefore, the outcome of the illegality of the product, not some sort of inherent character of drugs that make people do things illegal, violent or otherwise anti social.

But there is something else, and it is the way we locate certain behaviours culturally.  Historian John Burnham wrote a book entitled “Bad Habits” where he looked at the historical connections between different “minor vices” at the beginning of the twentieth century.  He referred to the relationships between, say, smoking, drinking, prostitution and gambling as a “constellation of minor vices.”  We see in the criminal gangs and different networks these same connections. It is a business system built upon what Courtwright calls “limbic capitalism,” the marketing of pleasure substances.  Some of those, say, for example prostitution in Las Vegas, might be legal in some places and therefore while considered immoral, might be severed from other illegal activities.  But they are still connected culturally to “misbehaving.”

I could go on, but my point is this: some people, usually more politically conservative, see drugs as inherently dangerous because of the way they see it altering people’s behaviour.  In this view, it is the substance that is dangerous, regardless of its social context or legal status.  Our esteemed prime minister at one point said something like “harm reduction is ridiculous because taking drugs is going to harm you.”

He is wrong.

It is not the drug that has some inherent danger.  It is the political, legal and social ecosystem created by its criminality, which then creates and expands criminality.  I am not denying that some people take drugs and end up with some serious problems.  But many people take drugs and end up with no problems–except that they’re breaking the law, so have to mingle with some unsavoury characters, and pay into a criminal network that could get them into trouble.  A number of tremendously talented people were drug addicts or alcoholics, and still functioned well, and were remarkably successful.  Think of surgeon and co-founder of Johns Hopkins University, William Halsted, for example. Coke head.  Brilliant innovative surgeon.  Or any number of drunken authors who penned remarkable works.  Or, while we’re at it, any philosopher of merit, if you believe Monty Python.

All this brings us back to the new, harsh legislation.  By creating minimum sentences for drug dealers, and ramping up the punitive measures on similar behaviour, the government is building up on and propagating a perception of the substance being bad. Increased criminalization is not the answer.  If pot were not illegal, it would be no more of a problem, and no less manageable than alcohol.

(c) Dan Malleck, 2012

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