California vote postpones rethink on global drugs trade

22/11/2010

in California's Proposition 19,Policy

A controversial bid to legalise marijuana was defeated in the United States midterm polls on 2 November. Voters in California, in addition to choosing election candidates, were offered the chance to approve Proposition 19, which would have had the effect of legalising the possession of marijuana for personal consumption. More broadly, the measure would have had significant implications for the drugs trade around the world, including on organised crime and on economies – and governments – that are enmeshed in the illegal trafficking of narcotics. However, 54% of voters rejected the proposal, a result partly attributable to low turn-out among younger voters who might have been expected to support it.

Specifically, the passage of Proposition 19 would have allowed people above the age of 21 to possess, process, share or transport within California up to one ounce (just under 30 grams) of marijuana and to cultivate marijuana on private property in an area up to 25 square feet (7.6 square metres). It would have allowed local governments and the state government to authorise, regulate and tax marijuana-related commercial activities such as licensing businesses retailing marijuana to individual consumers.

For and against

Proposition 19′s principal proponents, an advocacy group headed by Richard Lee, argued that its benefits would come in the form of significant additional state revenues through taxation; a substantial reduction in state correctional budgets as a consequence of no longer incarcerating users of marijuana; and a reduction in gang violence in Mexico as the black market in marijuana – claimed to account for up to 60% of Mexican drugs-cartel revenues – would have collapsed. These arguments enjoyed support from senior figures in the law-enforcement community who emphasised the failure of existing policies to reduce demand.

Opponents, including both the Democrat and Republican parties, argued that the proposed legislation was badly drafted and in particular that provisions designed to protect the rights of marijuana users in the workplace would result in people working while under the influence of drugs. Moreover the RAND Corporation, in a report entitled ‘Reducing Drug Trafficking Revenues and Violence in Mexico: Would Legalizing Marijuana in California Help?’ disputed the assumptions made by proponents of legalisation about the impact on Mexican organised crime, and challenged the statistics on which these were based.

As far as individual marijuana users in California are concerned, the failure to approve Proposition 19 makes little practical difference. In 1996 the state’s voters approved Proposition 215, which permitted the cultivation and possession of marijuana for medical purposes. Although the Supreme Court subsequently ruled that federal authorities could continue to prosecute users of medical marijuana, the US Department of Justice announced in March 2009 that it would not do so. Since then marijuana has been freely available to users with medical prescriptions, which are seldom refused. Fourteen other states, plus the District of Columbia, have followed California’s lead in permitting the consumption of marijuana for medical purposes.

For the federal government, however, there is a significant difference between full legalisation and allowing marijuana to be used as a medicine. Over the past century the US has been the main driver of the international regime on narcotics, enshrined in the 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. These require all countries to treat the possession of prohibited psychoactive drugs, including marijuana, as a criminal offence. Had Proposition 19 passed into law and the federal government taken no action to counter it, the US would have faced the embarrassment of being in breach of international treaty obligations which it had done more than any other nation to put in place and uphold.

The federal government, and in particular Attorney General Eric Holder, had indicated well before the vote that the Department of Justice would vigorously enforce federal drug laws. Backers of Proposition 19 appeared to be banking on the fact that the federal government would not be willing to risk a showdown with California. But even if Washington had baulked at this, it could have imposed economic penalties such as withholding access to federal contracts and various forms of funding – something opponents of Proposition 19 had been quick to point out. Ultimately the issue would have had to be decided by the Supreme Court.

International impact

The US federal government is no doubt relieved not to have to add this issue to a growing list of intractable domestic problems. This is all the more true of the leaders of some Latin American producer and transit states, notably Mexico and Colombia, who have been growing increasingly concerned about the extent to which high levels of demand for illegal narcotics in the US and other developed countries have undermined their security. President Felipe Calderon of Mexico and President Juan Manuel Santos of Colombia argued that the passage of Proposition 19 would create a ‘peculiar paradox’ and a ‘hypocrisy’ if the US were to legalise cannabis consumption while continuing to encourage other states to combat drug production within their borders. Santos observed: ‘Unilaterally we cannot legalise drugs because they are a problem not just for national security but also have international implications.’

The reservations of Latin American politicians have less to do with concern about legalisation per se than with the impracticality of introducing it on a piecemeal basis. Within Latin America, there has in recent years been a growing debate about the efficacy of counter-narcotics strategies, including some calls for legalisation. In 2009 the Latin American Commission on Drugs and Democracy, co-chaired by three former presidents, Cesar Gaviria of Colombia, Ernesto Zedillo of Mexico and Fernando Henrique Cardoso of Brazil, argued that the prohibition-based counter-narcotics strategies implemented over the preceding 30 years had done nothing to reduce the availability of drugs but had fuelled organised crime and violence in Latin America. The commission called for a wide-ranging debate centred on alternatives to existing strategies, focusing on narcotics consumption as a public health rather than a criminal issue, demand reduction in user countries and differentiation between illicit drugs on the basis of the harm they inflict on health and the social fabric.

Faced with a growing narco-insurgency which has claimed over 28,000 lives in the past three years, Mexico’s Calderon has called for a debate on the legalisation of narcotics. Meanwhile, Mexico has decriminalised the possession of small amounts of marijuana for personal consumption, while Argentina’s Supreme Court has ruled that it is unconstitutional for the state to punish citizens for the personal consumption of marijuana – actions that have attracted sharp criticism from the International Narcotics Control Board.

The traditional debate about illicit narcotics had been dominated by concerns about the harm caused in consumer countries both in terms of public-health issues such as the spread of HIV through shared needle use, and social effects such as crimes undertaken to support narcotics addiction. It is, however, becoming increasingly clear that far more serious and potentially global destabilising damage is inflicted upon producer and transit countries. The figures are stark. In Colombia, a toxic combination of insurgency fuelled by narcotics production has resulted over the past 30 years in between 100,000 and 200,000 murders, the emigration of 1.8 million Colombian nationals and the internal displacement of 3.3m more. Without this violence, it is estimated that Colombia’s GDP could be between 75% and 125% higher than it currently is. Colombians earn some $6.6 billion per annum from coca cultivation, a mere fraction of a global market estimated by the UN Office of Drugs and Crime (UNODC) as being worth $88 billion. Annual cocaine production in Colombia has, notwithstanding a sustained counter-narcotics drive supported by the US and the UK, stabilised at around 400 tonnes following the ejection in 2002 of the insurgent movement Fuerzas Armadas Revolucionarias de Colombia (FARC) from a demilitarised zone in the south of the country, where an additional 200 tonnes were produced.

But the harm from illicit narcotics production and trafficking is not limited to the immediate economic and social dimensions. A further factor is the institutional corruption that has been a feature of the narcotics economy. The violence that has erupted in Mexico following Calderon’s decision to crack down on drug cartels which have come to dominate the US supply routes was a consequence of disturbing what one academic has referred to as the ‘Pax Narcotica’, a cosy arrangement whereby Mexico’s law-enforcement agencies and judiciary were fully complicit in the activities of the cartels. Mexico is now experiencing two drugs wars; one between the government and the cartels, and one among the cartels themselves.

Corrupt societies

A narcotics trade in which prohibition fuels profitability can corrupt entire societies. This is evident in some of West African states, such as Guinea Bissau and Benin, which serve as transit points for cocaine destined for Western Europe. It is especially true of Afghanistan, which accounts for 90% of global heroin production – both the Taliban and key politicians are alleged to be major beneficiaries. The UNODC said in its 2009 annual report that a prohibition-based approach to counter-narcotics has had a major unintended consequence in the form of a massive global black market and associated organised criminality. And while organised criminality can at certain levels be tolerated, this is not the case when it challenges the authority of states or gives rise to what are in effect ungoverned spaces.

The prohibition-based approach to counter-narcotics has been brought into question from a number of perspectives. Producer and transit states are becoming more vocal in voicing their unhappiness with suffering most of the casualties in a war caused by a seemingly insatiable demand for drugs in the developed world. And medical opinion has begun increasingly to challenge the basis on which some drugs are deemed illegal. For example, former UK Home Office drugs adviser David Nutt argued in a recent report that the overall harm from legal substances such as alcohol was far greater than that from many illicit drugs such as marijuana – though his methodology has been criticised on the grounds that it is hard to make valid comparisons when some substances are legal and others not.

The issue is not, however, just one of scientific evidence; questions of morality and politics also play a large part. The debate has become polarised and paralysed. Those arguing for a shift away from a prohibition-based approach had hoped that the passage of Proposition 19, combined with the desire to reduce US correctional budgets, might serve as a catalyst for a process of global change. That now seems unlikely for the foreseeable future. Some change at the margins is possible, with more consumer countries possibly seeking to emulate Portugal, whose approach is one of qualified decriminalisation: trafficking in drugs remains illegal and punishable, but drug users are not punished provided they agree to enter treatment programmes. However, it is unclear whether the debate on illicit narcotics will be able to gain the critical mass needed for a fundamental rethink.

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