Prohibitions Against Heroin Use: Can They Be Justified?
| Author | Ian D Leader-Elliott |
| Published date | 01 December 1986 |
| Date | 01 December 1986 |
| DOI | http://doi.org/10.1177/000486588601900404 |
| Subject Matter | Original Articles |
AUST
&NZ
JOURNAL
OF CRIMINOLOGY (December 1986) 19 (225-250)
PROHIBITIONS AGAINST HEROIN USE:
CAN THEY BE JUSTIFIED?
Ian D Leader-Elliott*
225
Legislative responses to the drug problem in Australia have been predominantly penal in
character. In the case
of
heroin, a drug which has assumed a mythic or totemic status among
the illicit drugs, the calculated effect
of
criminal prohibitions has been to worsen the plight
of
the individual user. Few,
if
any, attempts have been made in this country to present a rational
and principled justification for our current practices. The article presents an analysis
of
the
operation
of
existing laws as they affect the heroin problem. The question whether these effects
can be justified as an example
of
state paternalism is then discussed. It is argued that existing
laws are unprincipled, indefensible and that our primary reliance on the mechanisms
of
the
criminal law has been misplaced.
Introduction
Discussions of the drug problem commonly invoke the metaphors of disease. Use
of the illicit drugs is described as a cancer in our society. Analogies with organic
illnesses are frequently used in support of the assertion that drug dependence is an
illness requiring medical treatment. The spread of use is described as an epidemic
and the individual user as an agent of contagion. Let me add a discordant note
among these metaphors. Social policies, too, can suffer from diseases. There are the
diseases which result from contamination by an alien infection. Policies rooted in
hatred for minority groups, or discrimination against them, provide appropriate
examples. Others may be likened to deficiency diseases, where some element
necessary for health is absent.
It is in this second sense that I want to describe our current policies for dealing
with illicit opiate use as diseased. There are traces of the other kind of disease as
well. The peculiar severity of our policies as they affect opiate users, owes much to
the outright racism which attended their birth. 1Attitudes of intolerance and
discrimination on grounds of class, if not of race, have provided continuing support
for those policies.. It is the deficiency diseases, however, which provide the
appropriate metaphor for present purposes. Existing policies, with their primary
reliance on the use of criminal sanctions, lack principle or rational justification.
With the exception of the Sackville Commission in South Australia, none of our
officially appointed inquiries has attempted to provide a principled justification of
present policies.2The issues of principle have been avoided. The Sackville
Commission concluded its examination of the issues on a note of reluctant
acquiescence. Arecommendation for radical change was considered impolitic.
Evidence of these deficiencies is also to be found in the failures of the official
inquiries to uncover credible information on the nature and extent of problems
associated with illicit opiate use in Australia. We are very little wiser than we were
before the inquiries began. They have, indeed, contributed to the store of
misinformation about drug problems.3These failures are .directly related to
continuing efforts, on the political level, to mobilize the forces of community hatred
and intolerance for those involved in the illicit use of opiate drugs .
...
LLB (Melb), JD (Chic)
..
Lecturer in Law, University of Adelaide Law School
226 I D LEADER-ELLIOTI (1986) 19 ANZJ Crim
My primary purpose in this paper is to consider possible justifications for the
things we do inthe name of combating the evils associated with recreational opiate
use. The first part, however, consists of a series of short notes on aspects' of our
existing drug control system. This is followed by a brief outline of an alternative
approach: abolition of the offences of opiate use, coupled with the introduction of
acomprehensive scheme of opiate maintenance. There is nothing new or original
in this proposal. Variants of it have been suggested before by the Le Dain
Commission in Canada' and other authorities. These brief notes provide a prelude
to the examination of the arguments for, and against, State intervention to prevent
self-harming conduct.
Aspects of Prohibitions Affecting Recreational Opiate Use
Containment and Control
There is no reason to suppose that practicable measures can be devised which will
have the effect of eliminating recreational opiate use. The reports of the Australian
Royal Commissions concede the point.' In the United States the objectives of
prohibition are stated in terms of containment and control." Let us suppose,
however, that the object is to reduce the prevalence of use. We have not succeeded
in doing so. In Australia the number of illicit users grew rapidly in the 70s, despite
laws of escalating severity and considerable increases in police resources and
powers. Increases in the number of uses may have continued. Evidence of present
trends is, as usual, scarce."
I do not suggest that our laws are without effect. The problem is more subtle.
One
can imagine worlds in which many more people engage in recreational opiate use
than is presently the case. Criminal prohibitions do impose direct and indirect
restraints. No one suggests that more than a tiny minority of the Australian
population has experimented with the illicit opiates. A minority only of
experimental users will go on to regular or dependent use. Despite legal restraints,
however, the spread of illicit heroin use in Australian during the 70s and early 80s
resembled the spread of an epidemic, or the diffusion of a cultural innovation. So
far as heroin use is concerned, it is possible that we are still on the steeply rising
gradient of the "S" curve and that the prevalence of use continues to increase.
How is one to measure the successes, or failures, of prohibition? Areduction in
the figures might indicate no more than the passing of a fashion which reached its
peak some time ago. Nor would a continuing rise in the population of new users
necessarily indicate that prohibition had altogether failed. The effect may have been
to slow the rate of increase and, in some measure at least, contain the phenomenon.
Many other factors, apart from the impact of criminal prohibitions, affect the
growth and decline of user populations. The problem of measuring relative degrees
of success, or failure, of criminal prohibitions would be difficult, even if we had
reliable estimates of user populations. In the absence of reliable or credible
estimates, the problem is insoluble.
The absence of information and of criteria for determining success or failure is
also apparent in discussions of the costs of prohibition. It is conceded on all sides
that many of the social costs associated with illicit opiate use are an immediate
consequence of prohibition. They include increased rates of property crime, of
public corruption and losses suffered by the public revenue as a result of the
operations of clandestine markets.
In
terms of public expenditures on enforcement
and corrections, costs continue to increase. In theory there exists a point at which
the various sacrifices entailed by drug prohibitions can no, longer be justified by
To continue reading
Request your trial