Systemic Racism, Illegitimate Laws and an Uncritical Media: Obstacles to Drug Policy Reform

Introduction

This brief statement is an elaboration of points made on behalf of Law Enforcement Against Prohibition at the University of Victoria on February 4, 2015.

Systemic Racism Then and Now

In order for laws to be regarded as legitimate, they must have broad social consensus otherwise they will be ignored by sizable parts of the population. Our current legal prohibitions are fundamentally illegitimate because of their origins in 1922 without the benefit of science and without parliamentary debate on the topic. Cannabis was uncritically categorized as a “narcotic” in the schedule of prohibited drugs (N. Boyd, 1991; Senate of Canada Special Committee on Illegal Drugs, 2002).

While most of us are familiar with the term “racism” as a form of prejudging the attributes of others on the basis of physical traits, a more accurate term is “racialization” – the social process of creating a stigmatizing category through human interaction. We can witness racialization in media stories which link criminalized drugs to minorities. But this is nothing new.

A review of the historical record tells us that the laws were passed in the contemporary racist context of the day (S. C. Boyd & Carter, 2014). Cannabis and opiate laws were supported by linking “dangerous drugs” to Chinese labourers who settled in Vancouver after the completion of the transnational railway. Race riots occurred in Vancouver in 1887 and 1907 which prompted McKenzie King, the Minister of Labour, to spearhead the criminalization of opiates in 1908. The Senate of Canada Special Committee on Illegal Drugs (2002) quotes King as follows:

[T]here are Chinese dens in Vancouver where opium is smoked and unspeakable infamies are practised, and no matter how meek and mild your Chinaman may look, no matter how gentle his voice or confiding his manner, Saturday night is almost certain to find him ‘doped’ in his bunk, weaving dreams under the poppy’s subtle spell (p. 211).

This racialization was also transmitted through the media in popular magazines and books such as Magistrate Emily Murphy’s (1922) book, The Black Candle.  She writes that

[p]ersons using this narcotic [marijuana] smoke the dried leaves of the plant, which has the effect of driving them completely insane. The addict loses all sense of moral responsibility. Addicts to this drug, while under its influence, are immune to pain, and could be severely injured without having any realization of their condition. While in this condition they become raving maniacs and liable to kill or indulge in any form of violence to other persons, using the most savage methods of cruelty without, as said before, any sense of moral responsibility. When coming under the influence of this narcotic, these victims present the most horrible condition imaginable. They are dispossessed of their natural and normal will power and their mental is that of idiots. If the drug is indulged in any great extent, it ends in the untimely death of the addict (pp. 332-333).

In the United States, the racist practices of drug control are far more insidious than in Canada. In her landmark book, The New Jim Crow, Michelle Alexander (2012) documents centuries of legal practices to keep African Americans “in their place”, from the era of slavery and lynching to contemporary practices such as judicially unsupervised policing, prosecutorial discretion, mandatory minimum sentencing, and the indelible penalties arising from being a “felon” in post-prison life. These systematic practices similarly affect Hispanics and Mexicans.

Canadians may today believe that we’ve transcended earlier racist sentiments, or are more socially inclusive than our neighbours to the south. However, Susan Boyd and Connie Carter argue in Killer Weed: Marijuana Grow Ops, Media and Justice (2014) that racism is alive and well in today’s media, largely due to the police and other vocal guardians of middle-class morality. Chinese, Italians, Jamaicans , Vietnamese, Aboriginal people, Asians, Hispanics and “outlaw motorcycle gangs” have been differentially blamed for the “drug problem” throughout the past 110 years.  These people are portrayed as “them” who are a threat to “us”, even though it’s large numbers of  the latter group who pay for and consume illicit drugs.

While racism is endemic in public discussions of drug use, a fundamental problem is that the criminalization of cannabis violates one of the most basic principles for making laws.

Illegitimate Laws

Our laws are founded on principles which must be honoured by the state, otherwise they will be widely seen as illegitimate. The British philosopher John Stuart Mill (1806-1873), argued in On Liberty ((1859) 2012) “that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” Our government cannot defend laws against marijuana by claiming that it harms others because there is no evidence to support such a claim. The problems associated with marijuana are created by the demand for a black market product. Drive-by shootings, “grow-rips”, grow-ops with children present,  and a host of other evils are the result of illegitimate, racist laws.

Health Canada defends cannabis laws on the basis of harms which may occur to heavy smokers of the plant. For a comprehensive review of the effects of marijuana based on hundreds of studies, see “What has research over the past two decades revealed about the adverse health effects of recreational cannabis use?” (Hall, 2015). Using the results from longitudinal studies which track children from birth to adulthood, Hall concludes that with acute or severe use a) “cannabis does not produce fatal overdoses as do opioids; b) there is a doubling of the risk of car crashes if cannabis users drive while intoxicated. This risk increases substantially if users also consume intoxicating doses of alcohol; c) maternal cannabis use during pregnancy modestly reduces birth weight” (p. 30; italics added). There are harms associated with marijuana for some people, but nothing which cannot be regulated much like we do with tobacco and alcohol (and with varying degrees of success, as argued later).

The science reviewed by Hall (2015) concludes that “regular cannabis users can develop a dependence syndrome, the risks of which are around 1 in 10 of all cannabis users and 1 in 6 among those who start in adolescence”. This same group “double[s] their risks of experiencing psychotic symptoms and disorders, especially if they have a personal or family history of psychotic disorders, and if they initiate cannabis use in their mid-teens”. To repeat, this is a group of regular or chronic users who are more likely to experience these effects. It does not apply to occasional or recreational users but the law, however, punishes them equally.

Hall (2015) also finds that “regular adolescent cannabis users have lower educational attainment than  non-using peers” (p. 30), largely because of a lower IQ – about 8 points below the mean, or one-half of a standard deviation below their peers (p. 24). Important qualifications are made about this finding:

[T]hese effects on IQ were found only in the small proportion of cannabis  users who initiated in adolescence and persisted in daily use throughout their 20s and into their 30s. No effects were found in those who initiated later or in daily users who ceased use earlier in adulthood” (Hall, 2015, p. 24 emphasis added).

That cannabis may be harmful to members of vulnerable groups is an argument for its regulation, not criminalization. Our present laws create the market conditions where dosage and quality are unknown; marijuana must be purchased in a black market run by criminal organizations. There is a growing body of research which shows that increased drug law enforcement is associated with higher rates of gun violence and higher homicide rates in Canada (British Columbia Centre for Health Excellence, 2010; Kerr, Small, & Wood, 2005; Stop the Violence BC Coalition, 2011; Werb et al., 2011).

An Uncritical Media

A major obstacle to reforming our cannabis laws are vested bureaucratic interests, mostly in law enforcement but also include a cadre of lawyers with lucrative contracts with the federal government to prosecute cannabis offences (Oneil, 2002). The status quo rewards police with human and material resources, prestige, and the imagery of “expertise” – despite the relatively low educational requirements for entry into its ranks (e.g., the Mounties do not require Grade 12 for new recruits). There are a few academics who engage in paid research for the RCMP and supports the latter’s drug-enforcement agenda (S. C. Boyd & Carter, 2014, pp. 64, 134) or, in the past, have undermined public health initiatives which address opiate addiction (Fournier, 2008; Stueck, 2008).

To whom does the media generally contact for information on drugs? The nearest police spokesperson is only a phone call away, or police news releases can be uncritically accepted as “facts”. Unbiased and in-depth investigative journalism is expensive, and very few news sources meet the quality of The Guardian. Many journalists don’t know the difference between the merits of a single study, a review of the scientific literature, or a meta-analysis such as Hall’s (2015) recent assessment of cannabis and health outcomes. Not surprisingly, the public can be misinformed with conflicting information on the nature and scope of the so-called “drug problem”.

Repeated over and over, the media’s message is about marijuana being linked to dangers of drive-by shootings, life-threatening conditions in grow-ops (from poor wiring, mold, weapons, explosives, booby-traps), and declining property values. It’s not long before many Canadians are sufficiently indoctrinated to believe the official discourse of racialized drug myths. In reference to their content analysis of media stories on marijuana grow-ops, Boyd and Carter (2014) argue that

[w]hat remains striking over the 15 year span of our media project is the hyperbole and unsubstantiated claims about marijuana grow ops and organized crime expressed by a small group of spokespeople, mostly RCMP, police, and some government officials, and reported, for the most part uncritically, by the print media.… Yet internationally and at home, a wealth of research points to prohibitionist drug policy and law-and-order initiatives as fuelling the drug market… There is no empirical evidence demonstrating that harsh drug laws and penalties deter marijuana production or any other type of drug offense. Indeed, a growing body of scientific research reveals that drug prohibition and increases in drug law enforcement result in higher rates of drug market violence and fail to reduce the prevalence of drug use (p. 113; emphasis added).

Evidence-based success in controlling the deadliest drug (tobacco)

Canada appears to have excellent health policy outcomes to address the 40,000 annual deaths attributed to tobacco use. Through regulation and public education, we have achieved remarkable results in deterring young people from becoming addicted to the narcotic found in tobacco. (Nicotine is a narcotic while cannabis is not.)

According to Health Canada, in 1985 35% of 15-19 year olds were tobacco smokers. In 2012, only 16% of the same group were smokers. For youth aged 20-24, 43% were smokers in 1985, but in 2012 only 20% of this age group smoked tobacco. This worthwhile health objective has been met without arresting anyone for possessing, trafficking, or producing tobacco. It appears that tobacco regulation, compulsory packaging with disturbing imagery, and education in our schools have resulted in noteworthy gains for all Canadians.

LEAP Lobbies for an end to Prohibition

LEAP does not endorse any particular policy for stopping the war on drugs. We are committed to lobbying for an end to the waste and human suffering associated with anachronistic drug law policies. However, we are aware of the positive outcomes where prohibition policies have been replaced with health models (Economist, 2009; McCaffery, 2010).

The positive health outcomes with respect to tobacco control might be applied to a regulated cannabis market. While the details have to be worked out, cannabis can be sold to adults through government-regulated and supervised agents. Education directed at young people about all psychoactive substances must be informed by science and delivered by qualified teachers. New policies should be informed and updated by continuous evaluation research from jurisdictions where cannabis has been legalized or decriminalized (e.g., Washington, Oregon, Colorado, Portugal, etc.). In this way we can move towards more humanitarian and effective drug policies.

References

Alexander, M. (2012). The New Jim Crow. New York: New Press, The.

Boyd, N. (1991). High society: legal and illegal drugs in Canada. Toronto, Ont: Key Porter Books.

Boyd, S. C., & Carter, C. (2014). Killer weed: marijuana grow ops, media, and justice. Toronto [Ontario]: University of Toronto Press.

British Columbia Centre for Health Excellence. (2010). Effect of Drug Law Enforcement on Drug-Related Violence: Evidence from a Scientific Review.  March 2010. from http://www.cfenet.ubc.ca/publications/effect-drug-law-enforcement-drug-related-violence-evidence-scientific-review-icsdp-repo

Fournier, S. (2008). Insite report slammed; AIDS expert calls RCMP study ‘bogus’. The Province p. A.16.

Hall, W. (2015). What has research over the past two decades revealed about the adverse health effects of recreational cannabis use? Addiction (Abingdon, England), 110(1), 19-35. doi: 10.1111/add.12703

Kerr, T., Small, W., & Wood, E. (2005). The public health and social impacts of drug market enforcement: A review of the evidence. International Journal of Drug Policy, 16(4), 210-220. doi: DOI 10.1016/j.drugpo.2005.04.005

McCaffrey, H. (2010). A bitter pill to swallow: Portugal’s lessons for drug law reform in New Zealand. Victoria University of Wellington Law Review, 40(4), 771.

Mill, J. S. ((1859) 2012). On Liberty. Lanham: Start Publishing LLC.

Murphy, E. F. (1922). The Black Candle. Toronto T. Allen.

Oneil, P. (2002). B.C. law firms raked in a disproportionate chunk of business. National Post, p. 1.

Senate of Canada Special Committee on Illegal Drugs. (2002). Cannabis: Our position for a Canadian public policy; Summary Report.  Ottawa.

Stop the Violence BC Coalition. (2011). How Not to Protect Community Health and Safety: What the Government’s own Data say about the Effects of Cannabis Prohibition (Vol. 2). Vancouver, B.C.

Stueck, W. (2008). AIDS researcher blasts RCMP for undermining Insite. The Globe and Mail, p. A.8.

Treating, not punishing; Portugal’s drug policy. (2009). The Economist, 392(8646), 43. http://www.economist.com/node/14309861

Werb, D., Rowell, G., Guyatt, G., Kerr, T., Montaner, J., & Wood, E. (2011). Effect of drug law enforcement on drug market violence: A systematic review. International Journal of Drug Policy, 22(2), 87-94. doi: 10.1016/j.drugpo.2011.02.002

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The Immorality of Enforcing Marijuana Laws

The police should now admit that it is immoral for them to enforce the Controlled Drugs and Substances Act (CDSA) as it pertains to marijuana. Laws must be justified on some moral basis in order for them to be supported by the public. Without support, our police lose the moral authority to enforce cannabis laws.

Over 70% of British Columbians support research to evaluate the regulation of cannabis (from an Angus Reid poll conducted earlier this month[1]). This measure of public opinion is consistent a similar poll conducted in the fall of 2012 which indicated that a majority of Canadians (57%) are ready to see marijuana legalized.

cannabis_leaf_cannabis-229px

The law enforcement community influences Canadian’s perceptions about the evils of marijuana, richly sprinkled with war metaphors, the portrayal of cannabis producers and smokers as deviants, and the resultant chaos should the public contemplate legally tolerant alternatives.

One of the challenges for the police is to convince those of us (especially parents) who lived through the 70s and 80s that today’s pot is “more harmful”. They frequently tell us that the active ingredient in marijuana (THC) is found in higher concentrations when grown under the tender care of hydroponic lights. There’s at least two problems with this claim.

First, the insistence that higher THC concentrations makes marijuana dangerous is like arguing that whiskey is more dangerous than beer because it contains proportionately more alcohol. Cannabis users will smoke less to enjoy the same effects – just like those of us who drink a smaller quantity of Scotch than wine but still achieve the same cognitive pleasures.

It’s a tragic irony that more Canadians have died or been injured from the enforcement of marijuana laws, than from any harms caused by the herb itself. The sporadic gun violence in Lower Mainland streets is the direct consequence of criminalizing a product which the public demands in a marketplace where the government has surrendered its controlling shares to the business of criminal organizations.

Secondly, the harms created by cannabis are the result of its legal status , not its pharmacological properties which, for most users, are relatively benign according to the research examined by our own Senate Special Committee on Illegal Drugs in 2002. Any negative effects associated with cannabis can be mediated, according to a recent 2011 article in the Canadian Journal of Public Health by researchers with Centre for Applied Research in Mental Health and Addiction at Simon Fraser University.

The law creates opportunities for a  black market and endangers the lives of citizens and police. The law is wrong. The law itself must be seen as criminal because of its consequences and must not be enforced by the police.

To have impact on cannabis markets, Parliament must regulate the domestic cultivation of marijuana so that the incentive for organized crime evaporates, except perhaps for a black market to supply smokers south of the 49th Parallel (except in those states which have already legalized cannabis).

The morally preferable alternative to the current failure of our so called “drug war” would be for police to take a bold stand like that of RCMP Commissioner Aylesworth Bowen Perry during Prohibition in 1917.

“No instruction whatsoever has been issued by me in regard to [enforcing prohibition],” he reminded his senior officers in Alberta. Unless otherwise notified, Perry told them unequivocally, prohibition “is not to be enforced by the Mounted Police”[2].

Declaring alcohol prohibition “unenforceable”, Commissioner Perry subsequently cancelled RCMP contracts to Alberta and Saskatchewan.

It’s unlikely that the same pronouncements about the abject failure of our drug laws will be heard from senior police officers anytime soon. Their interest is in advancing their careers and prestige in a police subculture where “takedowns” and “busting grow shows” get more kudos than informed political activism within the ranks. Consequently, we must elect politicians who promise to put an end to the violence associated with the unregulated distribution of cannabis.

According to the latest Angus Reid poll on the topic, 44% of respondents will have more favourable opinions of BC politicians who support “an ethically approved research study seeking to evaluate the impacts of a taxation (i.e., legalization) and regulation strategy to control adult cannabis use”.

Politicians can give back to the police some of their moral authority by not requiring them to enforce laws which cause far more harm than good.

It’s what we the people expect from you.


[1] The question went as follows:

Preamble. Many U.S. states are reforming their marijuana laws including Washington state, which has legalized the adult use of marijuana. British Columbia has experienced major unintended consequences resulting from marijuana prohibition including the proliferation of illegal marijuana grow ops and related organized crime concerns. Researchers in B.C. are interested to conduct a research trial to assess if a strictly regulated (i.e. legal) system for adult marijuana purchases could cut profits to organized crime, raise tax revenue and better protect young people from the free availability of marijuana that exists under prohibition. The study would be ethically and federally approved, involve a pilot site in one community, require key stakeholder support and be halted if unanticipated harms emerged.

Question 1. Do you support or oppose a B.C.research trial conducted by local experts and health scientists aiming to evaluate whether the taxation (i.e., legalization) and strict regulation of adult marijuana use could reduce profits to organized crime, raise tax revenue and better protect young people from the availability of marijuana that exists under prohibition?

[2] Rich Mole, Whisky Wars of the Canadian West: Fifty Years of Battles Against the Bottle, Heritage House, 2012, p. 78.

Forecast: Increased Crime

The Senate has recently passed a bill to provide mandatory minimum sentences (MMS) for anyone growing more than 5 marijuana plants “with the intent to sell”. Growers with 200 or more plants face a maximum of 14 years in jail.

According to the Department of Justice, the proposed law “would help disrupt criminal enterprises by targeting drug suppliers”.

What evidence might we accept in five years from now that the law has met its stated objective? Given that “disrupt” means only to “interrupt the usual course of a process or activity”, almost any policing activity can and likely will be interpreted as being disruptive to criminal enterprises. Note that the government’s claimed benefits of the proposed legislation is strategically fuzzy.

Disruption can include arrests of leaders in criminal organizations but who are not convicted in court because of, for example, procedural violations by the police or Crown. A failure to convict or imprison cannabis offenders still qualifies as “disruption”, but at what cost to the Canadian taxpayer?

According to the Parliamentary Budget Officer, it costs us about $147,000 a year to keep a federal offender in custody. Professor Neil Boyd from Simon Fraser University calculates that if an additional 500 inmates go jail for six months, it will cost $30 million more a year to house these new inmates, and that’s just for BC.

From what we know after 80 years of prohibition experience, the law’s impact will likely include at least the following:

The Senate has recently passed a bill to provide mandatory minimum sentences (MMS) for anyone growing more than 5 marijuana plants “with the intent to sell”. Growers with 200 or more plants face a maximum of 14 years in jail.

According to the Department of Justice, the proposed law “would help disrupt criminal enterprises by targeting drug suppliers”. What evidence might we accept in five years from now that the law has met its stated objective?

Given that “disrupt” means only to “interrupt the usual course of a process or activity”, almost any policing activity can and likely will be interpreted as being disruptive to criminal enterprises. Note that the government’s claimed benefits of the proposed legislation is strategically fuzzy.

Disruption can include arrests of leaders in criminal organizations but who are not convicted in court because of, for example, procedural violations by the police or Crown. A failure to convict or imprison cannabis offenders still qualifies as “disruption”, but at what cost to the Canadian taxpayer?

According to the Parliamentary Budget Officer, it costs us about $147,000 a year to keep a federal offender in custody. Professor Neil Boyd from Simon Fraser University calculates that if an additional 500 inmates go jail for six months, it will cost $30 million more a year to house these new inmates, and that’s just for BC.

From what we know after 80 years of prohibition experience, the law’s impact will likely include at least the following:

  • Cannabis prices will be higher than they are now. As producers assume more risks to cultivate cannabis, associated costs will be passed to consumers. The higher cost of cannabis production means larger sums of cash need to be stored, transported and laundered into the legitimate economy. Crimes involving these transactions will increase.
  • Illicitly obtained cash is a target for those who don’t have to worry about their victims calling the police. Violent crime associated with “settling scores” in some parts of the cannabis trade will increase with a risk of “collateral damage” in our communities.
  • To the extent that some buyers will use the proceeds of property crime to purchase cannabis products, property crime will increase.
  • People charged with crimes carrying mandatory sentences will be more likely to plead not guilty than to risk lengthy prison terms. An unknown number of proceedings will end in acquittals because of the Crown’s “undue delay” in bringing matters to trial.
  • Defense lawyers and the Crown will plea-bargain outside the courtroom. Suddenly 250 seized cannabis plants get counted as 199. This deal gets the Crown a conviction while the accused avoids the higher penalties aimed at growers of larger cannabis operations.

And that’s just a partial list of the likely unintended consequences of MMS for marijuana. The law will not reduce the supply of cannabis in our country, nor will it prevent the proliferation of criminal enterprises. But it will cost taxpayers dearly.