Making drug harms: Punishments for drugs offenders who pose risks to children
| Author | Simon Flacks |
| Published date | 01 November 2019 |
| Date | 01 November 2019 |
| DOI | 10.1177/1477370818775291 |
| Subject Matter | Articles |
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Article
European Journal of Criminology
2019, Vol. 16(6) 652 –670
Making drug harms:
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Punishments for drugs
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https://doi.org/10.1177/1477370818775291
DOI: 10.1177/1477370818775291
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offenders who pose risks
to children
Simon Flacks
University of Westminster, UK
Abstract
Images of children are routinely used in discourses on drugs, offering a compelling rationale for
adopting particular policy positions or legislative reforms. However, the importance of childhood
to the constitution of drug harms, and the punishment and subjectification of drug users and
offenders, have rarely been the subject of enquiry, whether within drug and alcohol studies,
criminology or legal studies. Scholarship on criminal sentencing in England and Wales is also
relatively sparse, and has been dominated by analyses of the ‘legal-rational’ logic of particular
provisions or reforms. This paper, which relies on the premise that drugs and their effects are
constituted through discourse, and are thus contingent, variable and unstable, identifies the
‘collateral realities’ (Law, 2011) that are enacted during legislative and judicial attempts to stabilize
the harms caused by drugs to children and communities.
Keywords
Children, collateral realities, drug dealing, drugs, sentencing
Introduction
Evocative imaginaries of childhood have long served useful ideological and political
functions in debates about drugs, as well as other policy spheres. In the UK, successive
drug strategies have emphasized links between drug use, family problems, crime and
child protection (Flacks, 2014; Home Office, 1998, 2008, 2010), and politicians rou-
tinely invoke a concern for children when discussing criminal justice policy relating to
drugs (Blair, 2000; Wintour, 2014). The child thus ‘does a lot of work’ in framing the
‘drug problem’, reinforcing calls for ‘something to be done’ to stem the scourge of
Corresponding author:
Simon Flacks, School of Law, University of Westminster, 4–12 Little Titchfield Street, London,
W1W 7BY, UK.
Email: s.flacks@westminster.ac.uk
Flacks
653
consumption and condemn the groups – often racial minorities and the economic under-
class – with which drugs are usually associated (Alexander, 2010; Courtwright, 2001).
Despite holding a privileged rhetorical position within policy discussions, the impor-
tance of childhood to the ‘making’ of drugs and associated behaviours has not been
subject to significant scrutiny. Moreover, although questions relating to the ontology of
drugs and addiction have attracted a rich depth of academic scholarship, particularly as a
response to the prominence of biomedical knowledges about individual health harms
(Fraser et al., 2014; Hart and Moore, 2014), those relating to the construction of truths
about the harms resulting from drugs offences remain under-explored.1 The aim in this
paper is to consider such questions in respect of sentencing law and policy. It is less
concerned with normative questions relating to, for example, legal or philosophical theo-
ries of punishment, or principles of proportionality (Von Hirsch and Ashworth, 2005),
and more with the ways in which objects such as drugs, and their effects, are constituted
and produced through criminal discourses. Drawing on legislation, sentencing guidelines
and case law in England and Wales, and using theoretical perspectives drawn from
Science, Technology and Society Studies, and particularly the work of John Law (2004,
2011), it is argued that a number of ‘collateral realities’ emerge from attempts to stabilize
drug harms in legal narratives, including from the ‘disentangling’ of mitigating and
aggravating factors during judicial decision-making (Blomley, 2014). The discussion
will begin with an elaboration of the theoretical basis for this approach, before consider-
ing the authorities for determining aggravating circumstances for drugs offences ostensi-
bly involving harm to minors, including statute and sentencing guidelines, and examining
how they function in case law. Although the evidence provided is largely gleaned from a
UK context, it is suggested that, given the pervasiveness of drug sentencing measures
addressing the victimization of minors both in Europe and across the world, the findings
have far-reaching implications.
Drugs, childhood and ‘collateral realities’
In 2013, following a series of news reports in which drug dealers were reported to be
targeting children with flavoured methamphetamine, Democratic Senator Dianne
Feinstein sponsored the introduction of the Saving Kids from Dangerous Drugs Act into
the United States Senate. The aim was to amend existing legislation in order to create a
specific offence of producing or distributing illicit drugs that had been ‘combined with a
beverage or candy product, marketed or packaged to appear similar to a beverage or
candy product, or modified by flavoring or coloring’, and to know or believe that such
substances would be given to under-18s. The bill was supported by a number of individu-
als and organizations including the Federal Law Enforcement Officers Association
(Adler, n.d.). Although, following an investigation, the Drug Enforcement Agency found
no evidence that substances were being packaged in this way, the image of drugs mas-
querading as sweets, peddled by predatory dealers, was powerful enough to prompt the
introduction of the Protecting Kids from Candy-Flavored Drugs Act, fulfilling the same
function, in 2015. In the UK in 2003, an early day motion, signed by 46 MPs and sponsored
by Lynne Jones MP, was introduced into the House of Commons. Signatories called for
a ban on ‘syringe shaped sweets’, sold under the name ‘Freekee Drops’, which featured
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European Journal of Criminology 16(6)
‘a cartoon character on the packaging with swirling eyes and salivating mouth’ and
which, argued the sponsors, ‘could lead children to associate addictive drugs like heroin
with pleasurable adult behaviour’ (Early Day Motion, 2003). Although there were no
reports that anyone, including children, had (or have) taken drugs for such trivial rea-
sons, the juxtaposition between images of depravity (addiction) and representations of
innocence (sweets) was enough to incite the indignation of campaigners. The swirling
and salivating mouth were assumed to constitute characteristics of the heroin user
(denoted by the image of the syringe), drawing on representations of addicts as disgust-
ing, enslaved, out of control and dehumanized (Peretti-Watel, 2003). Moreover, images
of heroin were themselves thought to be infectious; by merely eating syringe-shaped
sweets, children might have contracted drug-(ab)using behaviour.
According to Goode and Ben-Yehuda (2009: 27), discursive representations of chil-
dren as victims of ‘folk devils’ (Cohen, [1972], 2002) have multiplied in recent decades,
and drug dealers are considered to be ‘excellent suitable enemies . . . they’re poisoning
our children’ (Cohen, [1972] 2002). However, the young have long been the focus of
concerns about psychoactive substances, including alcohol (Berridge, 2013; Courtwright,
2001). Illicit drugs, in particular, are powerfully symbolic of the risk posed to childhood
by infection from unknown, malevolent forces and underscore fears about threats to the
integrity of the adolescent body (Moore, 2002). Since children are the marker for the
health and wellbeing of the nation state, scientific discourses, particularly biomedical
and, more recently, neuroscientific, have been important in determining how childhood
should be governed (Rose, 1989; Wells, 2011). It is generally acknowledged that child-
hood is, at least to some extent, socially constructed and that it operates as a regulatory
tool, rhetorical device and surface onto which adults project their hopes and fears for
humanity (Archard, 2004; Jackson and Scott, 1999; Jenks, 1996). Kerry Robinson (2013:
8) writes that childhood innocence ‘continues to be a major force – albeit in the name of
protection – in the subjugation of children’s lives, and underpins the dualistic relation-
ships of the world of adults and the world of children, and of adults’ knowledge and
children’s knowledge, which function to maintain relations of power in Western society’
(Robinson, 2013: 8; author’s emphasis). For Henry Giroux (2000: 1516), disproportion-
ate fears about threats to children from unknown sources are embedded in anxieties
about our own role in failing to protect them. Barbara Baird (2008: 293) uses the phrase
‘child fundamentalism’ in analysing the mobilization and fetishization of the image of
the innocent child as a fixed and absolute category in order to effect particular outcomes.
As indicated above, ‘children’ are critical to government drug policy rhetoric and occupy
a central role within all recent drug strategy documents in which the threat of the drug
problem is positioned as immediate and severe (Home Office, 2008, 2010).
Although often presented as an unqualified evil, there is a lack of attentiveness to the
contingency and complexity of drug dealing and drug markets in research, policy and the
criminal law (Coomber, 2006, 2010; Coomber and Moyle, 2014; Dwyer and Moore,
2010; Moyle and Coomber, 2015, 2017; Potter, 2009). The relationship between drugs,
crime and social harms...
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