Text: Josefina Salomón Illustration: Sergio Ortiz Borbolla
The release, earlier this year, of the first report by the Special Rapporteur on the Right to Health examining the impact of drug prohibition is the latest example of a shift that has been decades in the making – with arguments in favour of harm reduction approaches gaining momentum.
We spoke with John Walsh, Director for Drug Policy at the Washington Office on Latin America, about the impact of prohibition, including on democracy in Latin America and the environment, and what a sustainable drug policy should look like.
Josefina Salomon (JS): The United States’s approach to drug policy, focused mostly on prohibition, pretty much sets the tone for the rest of the world, although things seem to be slowly changing…
John Walsh (JW): Yes. In the United States, the iron-clad support for drug prohibition is not what it used to be. This is largely because in the case of the most widely used illicit drug in the world, cannabis, the US is heading towards some form of either federal accommodation to state-level cannabis regulation or a federal change in law to embrace a decriminalization and structure of federal regulation. But cannabis is only one aspect of the problem.
When it comes to the harms we’re talking about now, especially overdose and deaths, cannabis is irrelevant. The “drug war”, notwithstanding the very welcome embrace of harm reduction by the Biden administration, which is a first in the US, continues to have the same ethos when it comes to criminalization and incarceration.
JS: What would a human rights friendly, but effective, drug policy look like?
JW: One where every country recognizes that an unregulated commerce where supply is created and controlled by organized crime groups can’t possibly be healthy and safe, and where governments, as they do for many other very dangerous behaviours and substances, step in and assert regulatory authority. This will look different for different kinds of drugs, each of which have different uses and risks.
This won’t be an easy task, but the fact is that the alternative, which is the blanket prohibition we have had over the past 75 years has been a colossal failure, including because it precludes a sensible government policy to address the harms that drugs can cause.
JS: How do you get there?
JW: There are many steps to be taken on the way to regulation, some of which are being taken, particularly in response to the overdose crisis around fentanyl, which is a recognition of the value and the importance of harm reduction as a central approach to dealing with the harms that drugs cause. There’s test strips, there’s safe consumption sites, there’s overdose reversal drugs. There’s a whole bunch of things we can do that would be considered reducing harms that don’t necessarily reduce the drug use, but address the most immediate problem, which is that someone’s life could be at risk.
JS: How does the fentanyl crisis impact discussions around potential regulation.
JW: The fentanyl overdose crisis really encapsulates the absurdity and the horrors of the prohibition regime. This is a crisis driven by a highly potent drug where the supply, even for those who were not looking for it, has been made toxic and lethal.
We didn’t have a large pre-existing demand for illicit fentanyl in the United States. It was an invention of organized groups to illicitly supply a drug that because it’s easy for them to smuggle is more profitable.
The prohibitionist framework has done little more than put the power of shaping that market into the hands of outlaws and organized crime groups who have their own interests in making profit and have no interest nor any accountability to regular citizens, which is precisely what government should have.
JS: Why is there such a monumental difference in terms of the approach to cannabis and harder drugs?
JW: I think the approaches are different for a number of reasons. One, cannabis has always been much more widely used, and it’s ubiquitous as a substance. You can grow your own, or you know who could grow their own. It’s something that has become domesticated in the sense of people use it on a regular basis, including because of its medical and therapeutic benefits. It’s not as scary publicly as drugs like meth, cocaine and heroin.
Cannabis is a versatile substance, and that versatility has come to be recognized, including by some Republicans who are in favour of legalizing it.
JS: But in the US there also seems to be a business-like approach to cannabis production in the face of regulation. Can this be problematic?
JW: Right. To me, one of the biggest concerns and largest flaws in the way that cannabis regulation is unfolding in the United States goes to more of our ethos as a for-profit commercial entrepreneurial system in general.
In the case of psychoactive substances, which can be risky, the idea that a for-profit model which could end up dominating the regulatory apparatus and therefore weakening controls meant to benefit the public, I think is a mistake. But this was so clearly the default model that any efforts to course-correct are going to be very difficult, although not impossible.
If you think about the alcohol model in terms of, say, beer, you have gigantic companies that dominate the market but at the same time, you have microbreweries on the rise. One potential model in the case of federal legalization is one where big corporations that can produce something at the lowest price have a big share of the market and then you have smaller producers serving other parts of that market.
JS: But you could argue that a commercial enterprise will not have harm reduction as a value, a bit of what we currently see with tobacco and alcohol…
JW: Yeah, I think that’s right. To give too much power to for-profit commercial enterprises to shape that market is to run the risk that they’re going to put their profits above public interest to public health. And that would require a very strong public health regulatory approach to make sure that they do a good job of meeting consumer demand while not creating harm.
Of course, they’re in it to get new consumers, young consumers and that’s the real risk that comes from a for-profit commercial model. But I think we also need to recognize the differences across substances.
In the case of cannabis, for example, there are many uses that people find beneficial and not harmful. Overall, if one were to assess the risks and harms of these different drugs, even in putting them both on a comparable legal plane, alcohol certainly delivers a whole host of problems that aren’t typically associated with cannabis.
JS: Some countries have experimented regulation of harder drugs. Portugal is a good example but then we have Oregon, where the government ended up doing a u-turn on regulation. Why has the model worked in Portugal and not in Oregon?
JW: The first thing to recognize is that Portugal’s model was given time to succeed. Also, it was implemented at a time of crisis when heroin use, and HIV/AIDS became a real problem. They realized they needed to do something because things were getting out of control and they decided that the way to do that was to make sure that drug users weren’t stigmatized, but rather ensure they had access to services, including clean equipment. So, Portugal’s approach had a rationale: reduce deaths. Also, even though lack of funding has harmed its approach, Portugal has a much more coherent and well-functioning social safety net than the United States.
By contrast, if we look at what happened in Oregon, while it did deliver on its intention to end the overt criminalization of drug users, it couldn’t on its own do all the other things. Also, in Oregon there was a perfect storm created by the combination of a lack of social safety net to begin with, accentuated by the pandemic, which accentuated a housing crisis, which ballooned into public view with the arrival of fentanyl and overdose deaths. In my view, decriminalization in Oregon wasn’t given a fair shot because politics shifted very quickly.
JS: I’m wondering, even if you want to regulate, how do you move the supply from crime organizations to other, legal and responsible, actors?
JW: Well, first, you need political will. Elected leaders to speak up and recognize that our current approach is a disaster for our citizens and our country and countries around the world.
Ultimately, we need political leaders like the mayor of Amsterdam, who’s outspoken on the need to regulate cocaine, for instance, which is causing real security problems in the Netherlands. Leaders who want to create a movement for change and for civil society to continue to be clear that regulation ultimately needs to occur.
We’re falling behind the pace at which the illegal market, for its own incentives of profit making, are creating toxic drug markets. This has become the case in Canada and to some extent in the United States, public health authorities speaking very plainly about the need to regulate supply. Not because the idea is to make drugs available to everybody but knowing that they are available to make them safer than they are now.
JS: So, you are saying that trying to contain the flow of drugs is pointless…
JW: As long as we pretend that we can control the availability (of illicit drugs) through law enforcement we are bound to fail. The drugs will arrive because the enforcement cost is just the cost of doing business. Seizures will happen and interdiction will succeed to some extent, but the incentives that that creates will be just to produce more.
Using the enforcement of prohibition to restrict and eliminate the market doesn’t work. The question is, how can we move from that model and that mentality to a mentality that says the control over supply, production, and availability should be properly in the hands of government authorities, ideally democratic and accountable government authorities.
This will be a growing problem, particularly in Latin America where the state’s monopoly on the use of force has been weak historically. It’s a problem that’s getting worse in terms of the spread of drug trafficking networks, their consolidation and coordination and the way in which it’s fuelling other illegal and licit activities that are basically extractives that destroy the environment and undermine governance across the board, either through co-opting government officials and institutions who are intimidating them or just governing territories.
Those are problems that won’t be resolved in their entirety by regulating production and availability in markets of drugs, but it will be a step forward.
This interview was edited for length and clarity.
