Tuesday, May 10, 2011

The philosophy of the War on Drugs

On Friday 6th May, the New Zealand current affairs show Close Up ran this report about the "legal high" known as Kronic. As the Law Commission's report on reviewing drug law in New Zealand came out a mere three days before, it seems like an appropriate time to write a post on this whole thing.

Now, I don't want to get too caught up criticising Close Up's coverage (though I do have some problems with that article - for one thing, why focus only on Kronic? It's hardly the only such substance, or even the most common - did the manufacturers perchance pay for a little advertising work the same way KFC did more recently?) or on the debate over whether cannabis should be decriminalised - a point also raised in the Law Commission's report. I'm much more interested in what the sale of legal highs seems to point out about drug policy in New Zealand and overseas.

Kronic and its sister products are all synthetic cannabinoids - that's the active ingredient in most smokable legal highs nowadays. The fact that cannabis is illegal, while a compound which does more or less the same thing to your brain is currently for sale with nothing but a voluntary age limit (the packets say "R18", but retailers may or may not enforce this) points out to my mind that there's something fundamentally wrong with official thinking about drugs and drug law at the moment.

One of the recommendations of the Law Commission's report (linked above) is that the sale of legal highs is halted, and all new compounds becoming available start out as illegal by default until they have been reviewed and tested by a central authority of some sort to ascertain what their effects are and what dangers are associated with their use. As much as I usually don't support the banning of things (on general principle - not just in the case of drugs) I think that this represents some of the first clear and logical thought on this topic in a long time.

Up until this point, governments have simply banned particular substances, and the manufacturers of legal highs have been able to bypass these rulings by manufacturing close analogues of banned substances - essentially playing the "I'm not touching you!" game familiar to schoolchildren everywhere. This is what happened with the 2C family of chemicals (2CA, 2CB, 2CI, 2CE and so on) with Fantasy (aka GHB) and with BZP and the other piperazines. Sure, these chemicals are eventually banned in their own right, but the people who make this stuff undoubtedly factor this into their plans.

The banning of BZP didn't halt the sale of "party pills" - it just means that the ones you see now contain mephedrone, caffeine and other currently legal stimulants. If cannabinoid smokables are banned, I would be willing to bet that there will be an alternative in the pipeline. And the chemistry to make this stuff is not simple - unlike the chemistry involved in making many illegal drugs. It would take a significant R&D budget, and pretty solid manufacturing costs to stay in the game, but the companies who make legal highs have more than proven they're willing to make that spend.

The good thing about the Law Commission's suggestion, from a law-enforcement point of view is that it gets out of this arms race, by simply claiming that all novel drugs are illegal until declared otherwise, whether they're cancer cures or legal equivalents to LSD. The good thing about it from a philosophical point of view, is that it's the first step to a coherent formulation of a coherent societal stance on drugs in general, and I think this is long long overdue.

By "a coherent societal stance on drugs," I mean an accepted philosophical position on the place of chemically altered states of consciousness and consciousness-altering chemicals in our society. What I'm interested in here is not which drugs are legal and which aren't, but the basis on which we make that decision. I think that basis needs to be explicit, so that people can discuss it without falling into the trap of pushing their own personal favourite high, or attacking their favourite social bugbear.

As I see it, there are 3 positions we could logically adopt:
  1. "Getting high" is a socially undesirable and/or morally incorrect behaviour. We do not wish members of our society to do this, and we therefore ban all drugs which have purely recreational use, and regulate medical drugs and industrial substances which have recreational abuse potential (e.g. morphine, arguably cannabis) so that they don't fall into the wrong hands.
  2. Some drugs provoke dangerous and/or anti-social behaviour, and some have dangerous side effects. We will regulate drugs in the same way that we regulate driving speed on our roads - with a view to prevent people causing harm to themselves or others.
  3. People's psychology is their own to mess with/mess up as they choose. Some drugs provoke dangerous and/or anti-social behaviour, and some have dangerous side effects but people who are affected in this way can be dealt with by appropriate agencies as and when these problems occur - i.e. people who commit crimes are dealt with by the Police, people with mental health issues by the mental health system, people with physical problems get medical treatment and so on.
Each of these is, I think, logically valid (if not necessarily fully sound) and serves to point out a flaw in the current system - namely that that system is not philosophically valid:
  1. While I think that this view may be close to one espoused in the law enforcement and lawmaking communities, "getting high" is the problematic part here. The only sensible definition I can come up with is "deliberately altering one's own consciousness and/or perception for a recreational purpose". If we take the view that all such behaviour is socially undesirable, we're left in the position of banning coffee and tea along with cigarettes and alcohol.In fact, given the symptoms some people report from ingesting food containing capsaicin (chili oil) we should probably consider banning curries and Mexican food over a certain threshold of "hotness".
    If we try to arrange matters so that having a second or third cup of coffee in a row does not constitute illegal drug abuse, we are left with a serious problem in terms of figuring out what we mean by "getting high". We can't fall back on saying that some drugs are good, and some are bad inherently, because they all get you high in some way. We could arguably decide that some sorts of highs are OK (stimulants like coffee, for the sake of argument) and that some are not (hallucinogens like LSD, for example). The problem we then face is that methamphetamine is a stimulant and therefore OK, while nutmeg is a hallucinogen and thus verboten. You could regulate additionally on the ease of abuse - you need to eat a lot of nutmeg to trip, but you don't need all that much speed to get high - but that seems to me to be a slippery slope.
  2. If we are to take this view - that there's nothing inherently wrong with taking drugs per se, but that some drugs are too dangerous to be readily available - then we need to be regulating on the basis of harm caused. The problem here is that some currently socially acceptable and legal drugs appear to be as harmful as some illegal ones and in some cases more so. There would need to be some arbitrary threshold of harmfulness above which things were illegal and below which they were not. If we were to regulate on this basis, nicotine and alcohol could not logically remain legal while drugs such as cannabis, LSD and psychedelic mushrooms remained illegal.
  3. This is the view currently most commonly aired by Libertarians - although they often couple it with entirely privatising the health system so that everyone becomes personally responsible for the things they do to their own bodies. There's actually nothing wrong with this viewpoint so long as we are willing to label drug-crime simply as "crime" drug-deaths simply as "accidents" and so forth.
My point here is that current approaches to drug regulation appear to be morally timid, and philosophically confused. Morally timid in that the basis on which we decide whether a particular substance is or is not allowable is not clear, and is therefore not open to debate. Philosophically confused in that whatever that basis is, it appears to be so undermined by exceptions (e.g. harmful drugs should all be banned, except for alcohol because the majority of our society has culturally accepted its use and would protest strenuously at its banning) as to be now completely inconsistent.

I don't wish to try and make a case at this point for the banning or decriminalisation of any particular drug or family of drugs. I do however suggest that any response to the Law Commission's report by government should include a firming up, and a vastly increased transparency over the philosophical basis on which some drugs are banned, while others are tacitly permitted.


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  2. A prohibitionist policy on altered states cannot be made self consistent because the idea of a "drug" cannot be regulated on the individual level. The assumption that all individuals respond the same to all substances is hugely inaccurate. Furthermore, if you simply ban the altered state its self (which is what is required to preban drugs), you are also banning endogenous compounds as well as neuron states or other chemical aspects of consciousness such as cellular Calcium flux. How can a prohibitionist policy banning Dimethyltryptamine be philosophically consistent if that exact chemical is produced endogenously (to make it a little easier to understand)? Accepting endogenous DMT as legal simply produces a procedural prohibition since it is obviously "OK" if it exists by one route but not another. Can we say religion?

    1. That's a good point - I didn't talk about the legal wrinkles involved in inducing altered states of conscious through non-chemical means under a type 1 prohibitionist framework.