Free trade and illegal drugs: will NAFTA transform the United States into the Netherlands?

• Author: French, Taylor W.

ABSTRACT

In the postwar era, the United States typically has taken an approach to dealing with illegal drugs different from Europe. Americans have favored prohibitionist measures to combat drug use, while Europeans have gradually relaxed many of their illicit substance laws. Recently, however, there has been a growing movement within the United States to decriminalize and legalize marijuana. Numerous states have already reformed their laws to allow doctors to prescribe marijuana to patients. Moreover, many states are dramatically decriminalizing personal use of cannabis.

A review of postwar Europe's experience with drugs provides a useful paradigm to explain the U.S.'s shifting attitude. It also suggests that free trade may play a role in drug legalization. Following World War II, European nations began removing barriers to trade and ultimately joined to form a supranational organization, the European Union, largely erasing national borders. As free trade spread across Europe, so too did drug legalization, beginning in the Netherlands and eventually following on most of the continent. More recently, the United States formed a free trade zone with Canada, which has recently decriminalized marijuana, and with Mexico, which has been the main conduit for illegal drugs. As the model presented in this Note predicts, the United States has gradually loosened its drug laws as illicit substances stream across its open borders. Free trade makes it easier to move goods of any kind, legal or illegal, across borders, which increases the prevalence of drugs while reducing their cost. Once one member of a free trade association legalizes drugs, it may only be a matter of time before all others adopt similar policies as cheap drugs flow across borders. As drugs become more prevalent in society, a nation's ability to incarcerate users is strained, and drugs become quasi-normalized--leading to decriminalization and legalization. Thus, the European experience with drugs suggests free trade may be one of the causes of recent drug legalization and decriminalization movements in the United States.

TABLE OF CONTENTS I. INTRODUCTION II. THE U.S.'s MERCURIAL RELATIONSHIP WITH DRUGS A. Drug Legislation: Historical Development B. Evolving Attitudes: Medical Marijuana and Decriminalization 1. Medical Marijuana in the United States a. California b. Arizona c. Alaska d. Oregon e. Washington f. Maine g. Hawaii h. Nevada i. Colorado j. Maryland 2. The Decriminalization Movement a. The New York Example b. Shared Attitudes c. Lingering Reluctance III. A PARADIGM FOR ANALYSIS: POSTWAR EUROPE A. Overview of the European Union 1. Historical Roots 2. Formation and Future of the European Union 3. Open Borders and the Single Currency B. Redefining Illegality 1. The Netherlands 2. Denmark 3. Switzerland 4. Portugal 5. Belgium 6. United Kingdom 7. Luxembourg 8. Italy and Spain 9. Germany 10. France 11. Outliers: Austria, Finland, Greece, and Sweden IV. NORTH AMERICA: THE EUROPE OF TWENTY YEARS AGO? A. The North American Free Trade Agreement B. Canada: Changing Attitudes and Historical Roots C. Mexico: The Amsterdam to the South of the United States 1. NAFTA's Facilitation of Mexican Drug Trafficking Operations D. North America: Functionally Similar to Europe V. FREE TRADE'S CORROSIVE EFFECTS ON NATIONAL DRUG LAWS A. Economic Liberalization Facilitates Drug Trafficking Operations B. The Consequences of Free Trade's Increased Drug Trafficking VI. CONCLUSIONS A. The United States: The Beginnings of Decriminalization and Legalization B. The United States in a Europe-Like Environment C. An Explanation: The Corrosive Effects of Free Trade D. Summation I. INTRODUCTION

In recent years, the number of U.S. states that have passed some form of marijuana reform laws has surged. (1) Typically, these laws either legalize marijuana for medical purposes or decriminalize its use. (2) The notion underlying medical marijuana laws is that cannabis is effective in the treatment of certain ailments and that physicians should be able to prescribe the drug at their discretion. (3) These state laws typically allow patients to possess, buy, and use cannabis, and they also shield users from criminal prosecution so long as their conduct remains within specified grounds. (4)

The decriminalization movement has also picked up speed as states have recently relaxed penalties associated with certain types of drugs. (5) Generally, states have reduced criminal liability for those caught with small amounts of cannabis-related drugs meant for personal use. (6) Along with the reduced criminal penalties, states have begun advocating treatment-based alternatives instead of jail time, which is increasingly seen as unproductive and excessively expensive. (7) Thus, the United States is in the midst of redefining its attitude toward certain forms of drug use, as evidenced by current state legislation that medicalizes and decriminalizes cannabis products.

While there are many influences that contribute to a movement, this Note posits that free trade via NAFTA is a significant impetus behind the movement to legalize and decriminalize cannabis in the United States. Europe's steady march toward legalization over the past fifty years demonstrates how free trade agreements foster the spread of relaxed drug legislation. Denmark and the Netherlands were the first European nations to legalize cannabis products in the 1970s. (8) Since then, most European Union states, and even some European states that are not parties to the agreement, have adopted similar laws. (9) Across the ocean, Canada recently decriminalized marijuana and made it available via a doctor's prescription. (10) Moreover, the U.S.'s northern neighbor has traditionally supplied the United States with cannabis even while Canada itself deemed the drug illegal, leading one to suspect that shipments across the border will increase in the future. (11) In addition, Mexico has indicated it may relax its drug laws, widely known for being ineffective and unenforced. (12) As such, this Note proposes the U.S.'s situation is similar to that of those European nations that had not yet legalized cannabis after the Dutch and Danish removed criminal liability associated with the drug. The United States is part of a free trade agreement with neighbors that either explicitly or effectively do not share its attitude concerning illegal drugs. (13) Accordingly, one can interpret the current movement to medicalize or decriminalize cannabis occurring at the state level of the United States as the nation's first step down the path to outright legalization.

Part II of this Note examines the marijuana medicalization and decriminalization movement in the United States and shows the U.S. populace's shifting attitudes toward the drug. Then the Note reviews the European experience by offering a review of the European Union and Member States' drug laws in Part III. Here, this Note discusses the free trade zone in Europe generally and illustrates how drug reform began in two states and eventually grew to cover most of the continent. Part IV of this Note offers a brief overview of NAFTA and then highlights Canadian and Mexican trends relating to drug legalization and importation into the United States while drawing corollaries to European history. Part V highlights the effects of economic liberalization on drug trafficking and discusses how one country's decision to legalize drugs affects other nations. Part VI concludes the Note by suggesting that the United States is heading toward cannabis legalization due, in part, because of the transnational consequences of its free-trade partners' decisions to legalize and decriminalize certain drugs.

2. THE U.S.'s MERCURIAL RELATIONSHIP WITH DRUGS

   1. Drug Legislation: Historical Development

      Though surprising, many drugs now illegal were completely legal and used openly for roughly the first half of U.S. history. (14) In this unregulated environment, Americans went to stores and bought cocaine, opiates, and marijuana in plain view of the law. (15) While early U.S. law permitted these activities, drug use slowly transformed from being acceptable to something socially frowned upon. (16) Thus, drugs enjoyed a substantial period of legality, only becoming illegal within the last century. (17)

      The prohibitionist spirit first gripped San Francisco, which shut down the city's Chinese-run opium dens in 1875. (18) National legislation followed less than a half century later, when Congress passed the Harrison Narcotics Act in 1914 (hereinafter 1914 Act), (19) predating the infamous Prohibition. (20) The 1914 Act did not address the legality of marijuana, but "used the taxing power of Congress to regulate the manufacture, importation, sale and possession of opium, coca products, and their derivatives." (21) The Act "[limited] the distribution of cocaine and heroin to health care professionals, as opposed to the free use that had been in effect prior to the statute." (22) Later, the Supreme Court held the Act criminalized any distribution regardless of status as a health care professional. (23)

      While Congress later repealed the prohibition on alcohol, the federal government continued to regulate cocaine, opium, and marijuana. (24) Finally, Congress consolidated all prior drug laws into the Comprehensive Drug Abuse Prevention and Control Act of 1970 (hereinafter "1970 Act"). (25) The 1970 Act "consolidated federal laws that addressed trafficking and drug use." (26) Afterwards, the United States declared "war on drugs," and the national discussion centered on how best to win that war.

   2. Evolving Attitudes: Medical Marijuana and Decriminalization

      Interestingly, attitudes about drugs appear to be under transition. (27) Though there are many voices clamoring for harsher sentences and renewed efforts to eradicate drugs from the United States, a different approach has surfaced. (28) Legalization, decriminalization, and regulation--topics...