International narcotics law enforcement: a study in irrationality.

• Author: Madsen, Frank G.
• Position: Argument - Essay

This year sees the celebration of the first century of international legal provisions against the illicit production and trade of narcotics substances. Accordingly, this is an appropriate moment to evaluate the results obtained. The following essay considers how the international prohibition regime created the crime of drug trafficking. The ensuing function of denied demand is the inescapable basis for the development of organized crime. Second, costs of the regime are critically assessed. The former include institutional costs of law enforcement and of the incarceration of individuals sentenced for drug trafficking and related offences, e.g., violence and financial crimes. The indirect costs are difficult to gauge and impossible to monetize. They include the immense suffering caused by drug trafficking as well as the deterioration of public services due to corruption. The present situation on both sides of the U.S.-Mexico border is sufficiently eloquent evidence. Also, narcotics legislation leads to racial tension since the incarceration rates for non-whites for these offences is considerably higher than for whites in the United State and the United Kingdom. Third, political premises are briefly analyzed, namely the implementation of narcotics liaison offices in foreign jurisdictions and the linking of foreign aid and trade privileges to a certification of trade partners' adherence to U.S. antinarcotic drugs law enforcement. One might claim, somewhat counterintuitively, that decriminalization of drug trafficking is not necessary. Drug trafficking has already been decriminalized de facto, if not de jure, by the sheer, constant saturation of the market place.

**********

Over the last forty years, international traffic in illicit narcotic drugs has given rise to a "dialogue" between so-called producer and consumer countries, which apportioned perceived responsibility for the availability of such drugs on the illegal markets in the developed world. The distinction between these two sets of countries became increasingly blurred by the production of synthetic--as opposed to natural--drugs in the developed world. Traditional producing countries, particularly in Central and South America, questioned what they saw as an attempt to export the moral responsibility for drug abuse in the developed world to producer countries. The somewhat simplistic reasoning by governments in the developed world was that without the production of narcotic drugs, there would be no abuse of such drugs; governments of developing countries, meanwhile, quite reasonably recommended that developed countries examine the reasons that drove the young in their relatively rich countries to the abuse of mind-altering or mind-numbing substances. (1)

The immense costs of the U.S.-driven enforcement strategy imposed on producing, transit, and developed countries has once again gradually reinforced the somewhat artificial dichotomy between producing and consuming countries. This has become an additional element in what can charitably be termed the 'dialogue of the deaf.' Recently, therefore, a number of producing and transit countries in Central and South America have begun questioning the very basis of international governmental narcotic drug policies. This has led to a considerable degrading of the relations between these countries and the United States. (2) Reconsidering international antinarcotic drug policies is therefore not only important, but also urgent. The fact that 2012 marks the centenary for the signature of the first international narcotics convention makes it all the more appropriate to survey and assess the considerable investments made. (3)

Unfortunately, the issue of international drug policy left the realm of rationality quite some time ago. As discussed below, experience and scholarship have exposed the failure of the international narcotics regime in practice as well as in theory. Despite this, supply-side interdiction efforts, which are ineffective as well as expensive in investment and in loss of human lives, continue unabated. We are therefore faced with the notion of deviant use of knowledge, which in this context can be taken to signify the knowingly inefficient application of effort, as when governments attempt to oppose the narcotic drugs problem on the supply-side, knowing well that economics--and experience--have proved these efforts to be unsuccessful. (4)

Over the last two decades, much of drug policy discussion has centered on the question of "to legalize or not to legalize?" (5) It could be argued that well before Ethan Nadelmann, scholar and advocate for drug policy reform, posed this question in 2007, it was already irrelevant. Narcotic drugs have already been legalized de facto, albeit not de jure. When drugs are freely available, when the market is at all times saturated, and when a market-clearing equilibrium exists with little or no upwards price movement, then prohibition provisions are unenforced. In other words, the question of legalization has already been settled, namely by the market. The extremely serious consequences in economic investment and in loss of human lives of an unenforced and unenforceable international prohibition regime, which is driving the problem underground, are all that remain. Apart from the scope of these unintended consequences, the situation much resembles that of other similar moralistic provisions in the United States that all failed: the Mann Act (1910), which criminalized the transportation over state borders of a woman for 'immoral purposes'; alcohol prohibition (the Eighteenth Amendment to the U.S. Constitution and the concomitant enabling legislation, the Volstead Act); and various state legislation making adultery an offense (still on the books in New York State). (6)

The following paper is divided into two parts: The first section on the international prohibition regime considers the establishment and enactment of an international regime that has led to denied demand--which is what constitutes the crucial condition for the existence and functioning of organized crime in any area, including, but certainly not limited to, the traffic in illicit narcotic drugs. The second part, on the costs of this regime, analyzes the direct and indirect costs of antinarcotics enforcement.

THE INTERNATIONAL PROHIBITION REGIME

The international prohibition on the production, transportation, and sale of narcotic drugs commenced with the 1912 Hague International Opium Convention, though it gained momentum only after the 1970s. It was, and continues to be, mainly inspired and driven by the government of the United States, where a few individuals at the outset were allowed to play a disproportionate and decisive role in the development of the official attitude to the misuse of narcotics. In fact, as discussed below, the world is still paying a heavy price for the fallacious but persistent and vehemently expressed ideas of "transnational moralist entrepreneurs" such as Charles Brent, the Missionary Episcopal Bishop of the Philippines, and Harry Anslinger, the director of the U.S. Federal Bureau of Narcotics from its inception in 1930 until his death in 1962. (7)

The Recent History of Drug Abuse

The use of narcotic drugs to heal, soothe, induce transcendental experiences, or seek alleged hidden knowledge is well documented, at least back to ancient Egypt. With a minor hiatus between the fall of the Roman Empire and the discovery of Arabic scientific knowledge, opium has played a major role, curative as well as palliative, from the period of ancient Egypt to the first beginnings of a pharmaceutical industry in the United States. Early on, opium, in various forms and dosages, was consumed for palliative uses. The discovery in the early nineteenth century of the technologies for the extraction of morphine from opium, and the invention of heroin in the late nineteenth century, made intravenous administration of opiates possible, and by its almost immediate effect, reinforced its palliative use and subsequent dependence; likewise, the early twentieth century saw the extraction of cocaine from the coca plant.

Until the American Civil War, opiate addiction in the United States was mostly limited to Chinese immigrants. During the course of the war, the so-called 'army disease' developed, when opium was used by soldiers in the North and the South to alleviate their suffering. Opium was widely available for medical and nonmedical use by military surgeons and corpsmen, the equivalent of today's NGOs; merchants, who followed the armies, also provided the soldiers with necessities such as tobacco and patent medicines containing various degrees of opium. (8)

Creation of the Regime

It was not, however, the drug addiction of veterans, which was quietly accepted, but racist disdain that led to the first American antiopium law--the 1875 San Francisco municipal ordinance outlawing opium dens. It has been persuasively argued that these municipal provisions were part of an overall persecution of the Chinese population in northern California. The Chinese were welcomed during the Californian gold rush (1848 to 1855), when cooks and cleaners were needed. Once open-plot gold exploitation became less lucrative, and gold diggers--the so-called forty-niners--congregated in the cities, Chinese in the labor market were transformed from useful assistants to competitors, and subsequently diabolized. (9)

Although localized, the 1875 legislative initiative served to introduce two tenets that are of import in understanding the genesis of the narcotic drugs regime: First, that social problems do not exist in a vacuum; instead they are created by someone at a precise moment. Second, politics, whether local, national, or international, is instrumental in determining what is and is not considered a social problem.

After taking control of the Philippines in 1898, the United States was forced to decide how to deal with a...