Prologue of the Second Edition of Droit de la Drogue (Drug Law)
By Francis Caballero & Yann Bisiou
Ten years have passed since the first edition of Droit de la drogue. No longer by a single author, the object of the book however remains the same: the examination of the statutes applicable to licit and illicit drugs and the evaluation of their effectiveness. It is a critical study as much of the very concept of drugs, often abusively labelled, as of the legal regimentation of diverse controlled substances, one which simply does not reflect the actual dangers of the respective products. The question is to know whether the present critique has resulted in any progress, and if in the intervening ten years the ‘prejudices, myths, and ignorance’ have receded in favour of the ‘humanism and rationality’ hoped for in the conclusion of the Prologue. This Suite du Prologue is thus necessary to retrace the evolution of drug law during the past ten years.
In theory, the progress of reason is evident. It is now officially admitted that legal substances such as tobacco, alcohol, and medicines are ‘drugs’ as much as are the illicit ones. The Ethics Committee (Le Comité d’éthique 1994), and the Henrion (1995) and Roques (1998) reports have all recognised that tobacco, alcohol and legal psychoactive pharmaceuticals are of similar nature and present similar risks of abuse as cannabis, cocaine, and illicit opiate drugs. Hence it has been proposed to extend the locus of concern of the MILDT (La Mission Interministérielle de Lutte Contre la Toxicomanie) to tobacco addiction, alcoholism, and dependence on pharmaceuticals. If this proposition has been only partially achieved, blame may be placed exclusively on the influence of certain lobbies, fiercely opposed to any comparison of their products with illegal drugs. The extension of the concept of ‘drugs’ is nevertheless no longer even seriously questioned, and has been forcefully confirmed in section three of the new Public Health Code (2000) which includes tobacco and drug addiction, alcoholism, and use of drugs in sports as targets in the campaign against drug dependence and abuse.
These conceptual changes are obviously not without consequence in the domain of control and regulation. They would lead logically to a tightening of lax restrictions on legal drugs as well as a softening of repressive prohibitionist policy concerning illegal drugs. For two comparable drugs such as tobacco and cannabis, for example, this should result in increasing restrictions on the former and a controlled legalisation of the latter. If one can see from the past decade that the laws concerning legal drugs (tobacco, alcohol, tranquillisers, steroids, et al.) have made positive if slow movement toward such a goal, by contrast, the laws concerning illegal drugs (cannabis, cocaine, heroin, ecstasy…) have steadfastly diverged from it.
Concerning the statutes on legal drugs, the most significant is La Loi Evin (1991), a remarkable and courageous political deed reminiscent of the government of Mendès-France, which threw out the beverage laws (Code de Boissons, 1959) despite the objections of the distillers lobby. As for the 1991 Evin statute itself, it provides in principle for the prohibition of all promotion of tobacco and alcohol: a strategic prohibition considering the importance of advertising for these kinds of products. It is a prohibition of wide margin reinforced by associated restrictive measures: obligatory health warnings, price increases for tobacco, restrictions on smoking in public places, prohibition of sales of alcohol to minors or in sports stadiums, etc. The collectivity of sanctions and regulations brought to fruition by the anti-tobacco and anti-alcoholism organisations further allows for legal redress by injured parties against the manufacturers of the products. The law was an indisputable victory for the health lobby in the face of those of the alcohol and tobacco industries.
Later events were less glorious. La Loi Evin, attacked from all sides, was called an affront to liberty by numerous detractors, and it was watered down in several successive revisions: exemption for certain tobacco producers in sponsoring sporting events (1993), suppression of the prohibition on advertising of alcoholic beverages (1994), the “Buvette” amendment re-establishing alcohol sales at sports stadiums (1999), etc. Anti-alcoholism policy thus lost much of its cohesion. The anti-tobacco program fared somewhat better thanks to the application of European law and pressure from the international community. The European Union in effect supported the French position through EU directives and the World Health Organisation took up the cause, drawing up a Framework Convention on Tobacco Control.
The result is that in France there has been a ‘historical’ decline in cigarette consumption of fifteen percent between 1991 and 1999. This is an important success, even if it has not been widely noticed. For alcohol use the comparable decrease has been less, but has been continuous for forty years: from a yearly per capita consumption of 24 litres of pure alcohol in 1960 to eleven litres today. Better results can certainly be achieved, but the statistics are encouraging. They demonstrate that it is possible to effectively combat the abuse of drugs as addictive as tobacco or as culturally-established as alcohol by employing strict regulation, yet without total prohibition. It is clear that a policy of controlled legalisation — for the Code de Boissons and the Loi Evin are perfect examples — can be an effective instrument for limiting abuse and addiction.
The results of the change of statute regarding methadone also confirms this claim. In 1995 this partially-synthetic opioid drug, classed as a drug of abuse, became a drug of replacement therapy furnished under medical control to heroin addicts. Substituting a legal drug for an illegal one was revealed to be an excellent technique for improving the outcome of drug policy at the community level. The results for public health are spectacular: the number of overdoses was reduced by a factor of three (from 563 in 1994 to 167 in 1999). It was a decisive victory, if also, like the reduction in smoking, largely unnoticed. The prescription of methadone by state authorities is merely one aspect of the more comprehensive politics of Harm Reduction, an approach which justifies other novel measures such as free distribution of injection equipment and the support of drug-user community groups. It is a humanistic and pragmatic approach that refuses to treat drug users as delinquent or sick, but considers them as ordinary citizens. Abstinence is thus no longer the necessary goal. ‘Maintenance’ is a satisfactory aim that reduces the risk of delinquency, overdose, and AIDS. Several thousand persons thus receive their daily dose of opioid drug and their needle and syringe at community expense: an island of tolerance amidst a sea of prohibition.
There exists another instance of tolerance much more in question, even though it has issued from legislators themselves: the case of drugs in sports. Here, the use of performance-enhancing drugs by athletes was firstly decriminalised by the Bambuck Law (1989), the threat of punishment by the courts being replaced by that of disciplinary sanction by the sports federations. Then, in view of the unwillingness of the world of sport to regulate itself, the power of sanction was transferred by the Buffet Law (1999) to an independent administrative authority. At the same time, however, the law allows the administration of such products under medical control. Worse yet, it creates a hypocritical control system in which cannabis is a principal drug to be tested for, while substances that truly enhance performance (EPO, growth hormones, steroids…) go undetected. In general, the amateurism of the control measures compared with the professionalism of drug-using athletes is all too obvious. We should not be surprised if we have thus contributed to a stalemated legal situation concerning scientifically organised abuse of the products. Despite a generalised apathy on the matter, we can however note a small area of severity concerning the suppliers of performance-enhancing drugs, they are considered as ‘drug traffickers’.
Concerning illicit drugs however, the mood of the times is one of increasing repression. A ‘War on Drugs’ has been officially declared, firstly at the international level with the Vienna Convention on drug trafficking (1988), the most severe such policy ever adopted. Then at the national level, an avalanche of repressive measures has followed at a frenetic pace (1989, 1990, 1991, 1992, 1994, 1996, 1999), each manifesting an increasing degree of severity and rigor. As soon as the subject is illegal drugs the legislator seems seized with the ‘Médellin Syndrome’ : prepared at every instant to vote for no matter what law that proves that he is without pity for drug dealers. The problem of course is that exceptional legislation intended to be used to fight the Colombian cocaine cartels is instead used mostly against domestic and minor cannabis dealing.
Thus organised traffic in illicit drugs is today the most severely penalised felony proscribed by French law. Its punishment is greater than for crimes against humanity or for the murder and torture of children. It is considered of such seriousness as to require that cases be judged by special courts without juries. As for casual drug dealing by an individual, it is the most severely punished misdemeanor of all, with sentences of ten years’ imprisonment and fines of fifty million francs, not to mention incidental penalties and those levied by Customs. The punishments apply without distinction between the importer of a ton of heroin or the possessor of ten grams of hashish. Thus for cannabis infractions, which represent two-thirds of cases followed-up, the cultivation of one plant is punishable by twenty years in prison, the possession of one ‘finger’ of hashish ten years, and one year for simply smoking a ‘joint’! These punishments are manifestly disproportionate to the seriousness of the acts.
Furthermore, ‘special procedures’ for police efficiency are employed, yet are totally at odds with common law (prolonged pre-hearing custody, night-time searches, abusive questioning and provocation by police and customs, etc.) They are procedures which apply, once again, to the minor offender just as to the drug kingpin. Thus the possession of a few grams of hashish can result in four days of pre-hearing detention without access to a lawyer before the third day, whereas a murderer or child-molester, or a professional killer, cannot be held more than forty-eight hours, and with a right to consult with a lawyer after one hour. A flagrant injustice.
Police and justice authorities thus have free reign to act with a ‘maximum of rigor’. In this respect the legislation on illegal drugs provides a stark warning concerning the limits on rights of the citizen in a democratic society, and we are obliged to agree that acceptable limits are often exceeded. It is no mere coincidence that the first condemnation of France for torture and acts of barbarism by the European Court of Human Rights (1999) concerned ill-treatment during pre-hearing detention of a drug trafficker. And the police are not alone in the mistreatment of this category of person. The courts themselves do not hesitate to push aside their own principles in the service of repression.
During pre-trial investigations, detention is the rule and the liberty of bail the exception, whereas the law mandates the contrary. The sentencing consists routinely of imprisonment, rarely suspended, even for first offenders. After the sentencing, additional prison time beyond that determined by normal procedures can be awarded for non-payment of fines or Customs penalties, and this in disregard for the rule of non-cumulative sentences. Customs laws concerning illicit drugs are particularly abusive of rights, with the suspect having no access to a lawyer nor being informed of his rights, and outrageous fines levied which directly benefit Customs agents. More generally, drug law drags the entire justice system down by underhandedly eroding its fundamental principles: due process, the non-retroactivity of penal law, retroactivity of less punitive law, non-cumulative sentences, the necessity of material evidence, etc. All of these fundamentals are more or less ignored by jurisprudence when required for the cause. And all without consideration of whether the case is undeniably one of major trafficking, or the simple transport of small quantities of illicit drugs for personal use. Such lack of consideration has transformed all young drug users into ‘kingpin’ drug traffickers. And as for being ‘caught in the act,’ it can amount to nothing more than the ‘guilty look’ of a young man walking in the Métro, and arrested for cannabis use on that basis… Most assuredly, it is clear that the Criminal Courts are no longer the guardians and protectors of liberty that they should be: they have become the zealous auxiliary of repression.
The efficiency of this machine of repression is astounding. Infractions of the drug laws have alone filled fifteen percent of French prison capacity, and have resulted since 1995 in more prison sentences than all other infractions combined. They thus contribute importantly to prison overcrowding.
Repression, however, has not led to a corresponding reduction in drug abuse and addiction, quite the contrary. All available statistics (police investigations, seizures, polls…) show the exceptional growth in drug use and trafficking since the Law of 1970 was established. The number of arrests has increased by a factor of thirty, from 3,000 persons in 1972 to 30,000 in 1988 and 90,000 in 1998. Between 1970 and 1998 drug seizures have increased from 77 to 340 kilos of heroin, from 2 grams to 1,000 kilos of cocaine, and for cannabis by a factor of a hundred, from 600 kilos to 60 tons. Even more worrying, in the past ten years we have seen an explosion in the use of a drug that did not even exist as an abused substance when the Law of 1970 was created: ecstasy, of which 30 doses were seized in 1987 and more than a million in 1998, a thirty-thousand-fold increase. As for official estimates of the number of users, for cannabis alone the figure has increased from 800,000 in the Pelletier report of 1976 to three to five million in the Henrion report of 1995. It is obvious that the relatively marginal use of the 1970s has become a societal norm in the 1990s.
The failure of prohibitionist and repressive policy is all too obvious. And this failure is not only a French phenomenon, but world-wide. Thus the United States, the exemplars of abstinence with their ‘zero tolerance’ approach led by national heroes of repression such as the ‘drug czar’, has ended the century with more than a half-million Americans in prison for drug violations and a growing movement for the legalisation of ‘medical marijuana’. Despite the constant claims of U.S. authorities that they are winning the War on Drugs, in reality they lost it long ago. It was in fact lost before it was begun, for the attempt to impose by force a drug-free world, such as a world without tobacco or alcohol, is a typically American obsession, totally unrealistic, and with a zero possibility of success. Worse yet, the attempt proves to be a dangerous threat not only to individual liberties but also for national security and public health.
Even an armada of customs agents, police, and justice officials is obviously incapable of intercepting the growing quantity of illegal substances in circulation. The effort itself does little except to increase prices and the profits of international traffickers. It also results in drug users committing minor and major infractions to obtain the money for their drugs. The Trautmann report (1990) estimated a figure of between thirty and fifty million francs per day needed by the nation’s heroin addicts. A cause of crime in the streets, the prohibition of drugs is also a cause of the spread of AIDS and other serious infectious diseases. Extended to the sale of injection equipment, prohibition has caused in France the death of several tens of thousands, not to mention other attendant problems such as deaths by overdose due mostly to adulterated drugs, the growing risks of police corruption, etc.
When drug policy aggravates the very problems it is supposed to solve, failing to protect against the harms of drug abuse and ensuring the profits of the drug traffickers, it is obviously time to reconsider. After a thirty-year reign of the Law of 1970, it appears as une erreur historique, an error of historical proportions, a product solely of the ignorance and prejudices of its creators. The law is a prime example of incomprehensible legislation: a year’s imprisonment for an adult who in private and by himself absorbs a substance of his own choice in order to experience altered consciousness. In a country founded on human rights and Cartesian rationality this is far more than a mere mistake, it is a fundamental defect. It is high time that France reinvigorates its founding principles so as to present to the world the example of a realistic and humanitarian drug policy.
Even more importantly, the credible alternative already in place for legal drugs must be employed: controlled legalisation. The lessons from the past ten years of drug policy, like the lessons from history itself, are quite clear. The objective superiority of policies applied to the control of legal drugs compared with those concerning illegal drugs is sufficiently demonstrated. It is easy to explain why. By replacing the unattainable goal of abstinence by the more reasonable goal of moderation, the legislator has a far greater chance of success. He can concentrate on combating the abuses that threaten the young and society at large. And he can exploit the important advantages resulting from the fact that drugs, like any other product, can be controlled and taxed.
The controlled legalisation just of cannabis might well create many thousands of jobs, bring in enormous revenues for the government and for social security, decriminalise millions of users, reduce prison overcrowding, and even improve public health with measures such as providing accurate information for users, restrictions on sales to minors and on use in public or while operating motor vehicles… These are undeniable benefits which cannot be long ignored, above all considering the perverse effects of the combination of prohibition and repression. The prohibitionist policies of the 1970s are manifestly no longer suitable for the third millennium. It is time to replace the War on Drugs with a social and community campaign to prevent the abuse of drugs.