Drug Law Reforms: Strategies and Obstacles

Drug control: more than a trilemma

The relation between law and society can attract attention for a lot of different reasons, one of them being the question of the effectiveness (and efficiency) of legislation. Legislation does not always fulfil the lawmakers' expectations. The reasons for that may vary. Circumstances may have changed, important variables may have been ignored, sloppy wording may have caused confusion or outright manipulation. Reality is often more complex than what the law and its makers can anticipate.

When a piece of legislation fails to take into account the particular structure and dynamics of the social system which it is supposed to influence, sociologists of law sometimes speak of an insufficient structural coupling between the two subsystems - i.e. the law and those parts of the material world that it wants to address. According to Günther Teubner, insufficient structural coupling will produce one of the following three dysfunctions: either indifference between the law and the social world (the law remains without effect), or destruction of the social object (instead of protecting that parts of society that the law wants to protect in their functioning, it has undesired counterproductive effects), or auto-destruction of the legal subsystem itself (destruction of the legal system's internal consistency and principles).

It is no secret that the international drug control system with all its worldwide conventions and national anti-drug laws is far from perfect. Moreover, it seems not only incapable of effectively reaching its goals, but to add damage in both the material world and in the legal system to its mere inefficiency. If people speak of Teubner's Trilemma when they refer to a law that either remains ineffective or becomes destructive to society or the legal system itself, then the surprising triad characterising the consequences of insufficient structural coupling in the drug field - adding social and dogmatic destructiveness to mere ineffectiveness - would justify to speak in this case not only of a Teubner Trilemma, but of more than a trilemma - or maybe a mega one.

It is not the aim of this contribution to give an in-depth evaluation of the unsatisfoactory effects of the global strategy of drug control - a system of a web of national anti-drug legislation on the basis of the three international conventions of 1961, 1971, and 1988, respectively. Suffice it to say that drug control efforts - as strong and costly as they may be - have neither been able to reduce the availability of drugs worldwide, nor did they lead to reduced drug quality or higher drug prices on the most relevant consumer markets (Werb et al. 2013). In other words, there are enormous efforts to combat drugs on the side of the law, and there is the drug market on the other side. And between them there is indifference. The law is being acted upon, and the market continues with its own dynamics. Lowered or increased efforts on the side of the law do not disturb the dynamics of the market. Both subsystems work - in effect - with utmost indifference to the other. Unbelievable, but true.

Drug prohibition also destroys what it is supposed to protect: the health and life of individuals, the upbringing of the young generation, and the well-being of families. Incarceration rates worldwide have risen to heights hitherto unimaginable, including those of young people and women. Once in the web of criminal justice, it is hard to get out. Life perspectives aren't exactly known to be improving after contacts with police, courts, and corrections.

Finally, legal scholars and lawyers have been forced to witness how the intricacies of organized crime have led to ever more powers granted to the state and ever less to citizens, especially when in the status of suspect or accused. The discovery and suppression of victimless crimes differs from ordinary delinquency in that it requires pro-active police work, surveillance techniques, agents provocateurs, and informants, including such emergency measures as wiretapping and large-scale surveillance. In short: it needs all the arsenal of the secret state and the secret police (and the world over, the US drug police - the Drug Enforcement Agency - and its corollaries demonstrate what that means). In legislation, this implies a number of innovations that hardly combine with traditional concepts of the rule of law and due process. The most problematic ones owe their disruptive introduction and cancer like growth in the Western world to drug fighters' lobby work. Plea bargaining, e.g., was only widely used and slowly accepted as a legitimate part of criminal trials when there was no other way to get the overload of cases worked through during the US alcohol prohibition (1920-1933).