CoNCLUSIoN:
CoNTEMPLATING A NEW TRAJECToRy?
From 1909-1961 a highly imperfect regulatory system was
created based on supply-centric tenets. This system was then
used by prohibitionist forces after 1961 when they gained political
ascendancy at the UN. The result was a regulatory overreach that
assumed the illicit market could be tamed through enforcement and
the diffusion of police measures internationally. This assumption
proved to be incorrect, but the policy path determined by this
view ensured the continuation of a failed approach for decades.
Meanwhile, the system has enforced obligations for producer and
transit countries to assume the costs of prohibitionist policies,
while providing no clear obligation for consumer countries to
share these costs.39
Now, it is clear that political forces within the system, particularly
Latin American states, are pushing for a re-evaluation for perhaps
the first time in the system’s history. Furthermore, many human
rights organisations are highlighting problematic aspects within
the system as bodies such as INCB act without institutional
checks and balances in pursuit of a failed supply-focused and
prohibitionist paradigm.40 This contribution has highlighted some
of the policy paradoxes built into the current system which argue
for an end to the current strategy. The UN General Assembly
Special Session on Drugs in 2016 provides an excellent opportunity
for states to break with the failed strategy of the past and pursue
a more effective international approach to drug policy for the
twenty-first century.
CoNCLUSIoN:
CoNTEMPLATING A NEW TRAJECToRy?
From 1909-1961 a highly imperfect regulatory system was
created based on supply-centric tenets. This system was then
used by prohibitionist forces after 1961 when they gained political
ascendancy at the UN. The result was a regulatory overreach that
assumed the illicit market could be tamed through enforcement and
the diffusion of police measures internationally. This assumption
proved to be incorrect, but the policy path determined by this
view ensured the continuation of a failed approach for decades.
Meanwhile, the system has enforced obligations for producer and
transit countries to assume the costs of prohibitionist policies,
while providing no clear obligation for consumer countries to
share these costs.39
Now, it is clear that political forces within the system, particularly
Latin American states, are pushing for a re-evaluation for perhaps
the first time in the system’s history. Furthermore, many human
rights organisations are highlighting problematic aspects within
the system as bodies such as INCB act without institutional
checks and balances in pursuit of a failed supply-focused and
prohibitionist paradigm.40 This contribution has highlighted some
of the policy paradoxes built into the current system which argue
for an end to the current strategy. The UN General Assembly
Special Session on Drugs in 2016 provides an excellent opportunity
for states to break with the failed strategy of the past and pursue
a more effective international approach to drug policy for the
twenty-first century.
CoNCLUSIoN
The balloon effect can be seen as a simplifying metaphor; after all interdiction is just one
contributing factor to the observed shifts of trafficking.35 To test the balloon effect hypothesis
properly requires a kind of data that is never likely to be available: estimates of the intensity
of interdiction along specific routes and the flow of drugs along those same routes over a
period of time. Even the most basic data, drug flows along routes, are hard to obtain. For
instance ‘US drug officials claim that 70 percent of cocaine consumed in Europe was shipped
through West Africa in 2007, while the United Nations Office on Drugs and Crime (UNODC)
estimate that 25 percent of Europe’s cocaine transits through the sub-region’.36 There is
simply no systematic methodology for making such estimates.37 We rely on impressions,
weakly reinforced by seizure data. It is probably asymmetric, with false positives less likely
than false negatives but with a delay in knowledge about the shift in routes, particularly in
countries around Afghanistan.
Surely the balloon effect contains at least a grain of truth, even if it is not the whole story.
Smugglers, like other profit-making enterprises, have incentives to respond to changes in
costs. The trope of a globalised world is true for illegal drugs as it is for legal trade. But the
question is how much increased interdiction can erode the competitive advantage of existing
routes, and that remains in the domain of pure speculation.
What should decision-makers do in light of this uncertainty about the mobility of trafficking?
One response of interdiction agencies is to cheer what appears to be good news. If the
balloon effect is punctured, then the justification for intense interdiction is strengthened; it
is not merely moving traffic around but has some prospect of actually reducing total world
consumption. However, that flies in the face of the macro-evidence against interdiction’s
effectiveness.
Fluctuations in the share of cocaine seized in recent years has not been reflected in estimated
global consumption. The quantitative basis for clear statements is weak; seizure estimates
are hampered by lack of purity data, while consumption estimates are notoriously fragile
in the few countries where they exist. Nonetheless, it has been consistently difficult to find
any connection between interdiction success and final market outcomes; Pollack and Reuter
provide a brief review of the available evidence. 38
An alternative response is to note that there are some instances in which the balloon effect
does indeed occur. The Dutch decision to crack down in the Netherlands Antilles has cost
West African development dearly. Globalisation is not just a phenomenon to be observed;
it is a fundamental aspect of decision-making. Interdiction crackdowns by one country may
well affect others. Co-ordinating this element of decision-making internationally will be
extremely difficult both institutionally and operationally but without such co-ordination, this
kind of immiserating effect will no doubt occur again
CoNCLUSIoN
The blog Foco Económico posted an analysis of the costs of
prohibitionist drug policies.21 According to the article, one of the
reasons prohibition did not work is that the collateral costs and the
indirect costs of the ‘war on drugs’ were too expensive for producer
and transit countries. The increasing drug-related violence, in both
Colombia and Mexico, was accompanied by thousands of families
who left everything behind to migrate to safer places.
There are two main costs associated with IDPs. The first is the
humanitarian crisis generated by the poor living conditions they
face in their destinations. In Colombia, they have arrived in the
big cities and have become homeless, begging for money at
traffic intersections. In Mexico, they generally do not receive
humanitarian assistance from the government, and when they
do, it is under deplorable conditions. According to testimonies
of displaced families from Ciudad Juárez,22 they were placed
in warehouses (often without air conditioning) by the city
government in Mexico City, where they had to stay 24 hours per
day for several months while fighting for every inch of space.
The second cost is associated with ensuring their return to their
hometowns. Given the humanitarian crisis created by their poor
living conditions as IDPs, the main solution, both for them and
for the government, would be to provide a safe return. However,
as discussed above, even if legislation guarantees this return, in
practice the situation is more problematic. The creation of new
rebel groups, the perpetuation of violence and the absence of state
presence are just a few of the many obstacles to ensuring security
for the returning IDPs.
In the final assessment, prohibition did not work. It generated
enormous costs both in producer and transit countries. The main
question is therefore: what are we going to do about these costs
and with policies going forward? The new debates on alternative
drug policies are focused on addiction treatments, consumption
prevention, regularisation of the drug market and in some cases,
‘legalisation’ is on the agenda. However, for countries such
as Mexico and Colombia, it is too soon to think about these
alternative policies. The drug policy based on prohibition and the
‘war on drugs’ left these countries with serious problems that we
cannot ignore just by approving a drastic change in drug policies.
It was because of prohibition that the guerrillas, paramilitaries and
drug cartels were able to finance their criminal activities. However,
it is naïve to expect that if prohibition is ended and the earnings of
the illicit drug market are reduced, these organisations are going to
become legal, conditions are going to be safer and IDPs are going to
return to their hometowns. Colombia has been an important case
study in this regard. Although the paramilitaries were demilitarised
and the Victims’ Law was approved, new rebel groups have been
created that conduct new illegal activities and leaders of IDPs risk
being killed if they decide to go back and participate in the land
restitution project.
CoNCLUSIoN
The costs of the prohibition of drugs – or, in its more bellicose
version, the ’war on drugs’ – are many and significant. The
war on drugs consistently demands great sacrifices from
societies around the world. Among them we need to take into
consideration what fundamental changes political communities
should be willing to undergo. Further, the sacrifices we as
political communities accept must be tallied among the other
many costs of the war on drugs. So, to the list costs, we need
to add a new category: the constitutional costs of the war
on drugs.
Many countries and societies have undertaken profound
restructuring of some of their key normative and political
commitments so as to wage a more effective war on drugs. In
order to face the purported threat drugs and drug trafficking
represent to our societies, our leaders and governments have
time and again requested and obtained broader powers and/
or the evisceration of constitutional barriers to state power.
In the Mexican case these changes affected important aspects
of the Mexican legal system: fundamental rights (related to the
creation of a special criminal system), distribution of functions (the
curbing of federalism and state powers through the modification
of concurrent matters) and legal uncertainty (the conflation of
functions) based on this analysis of the Mexican experience,
we can identify three categories of constitutional costs: (a) the
curtailment of fundamental rights by either (i) the restriction of
fundamental rights across the board, or (ii) the carving out of a
regime of reduced rights for certain people); (b) the restructuring
of forms of government; and (c) the undermining of legal security.
In the Colombian case, we see that for several decades, subsequent
governments have established exceptional criminal process regimes
in order to support the war on drugs.
The contents of these have changed over time, but in all cases it is
possible to find a common thread in the curtailment of fundamental
rights for drug offenders. In Colombia, the exceptional criminal
justice system is not temporary or exceptional, but has coexisted
for five decades with ordinary criminal justice.
Consequently, in the Mexican and Colombian cases, the
constitutional costs appear as statutes, constitutional amendments
or both. The case of the United States is somewhat different. We
can find legislative changes, but the affectation of constitutional
commitments manifests itself most importantly in judicial opinions.
Some measures of the war on drugs imply the curtailment of
fundamental rights. These are apparently neutral, but in fact
have deep discriminatory implications, as Michelle Alexander has
famously argued.
When we sacrifice the core values we hold collectively and renounce
core commitments previously held by a political community, we must
be sure that it is for good reason. So far, these constitutional costs
are most often not understood as such but as extraordinary and
exceptional measures we must adopt to achieve our objective. But
these measures are fundamentally reshaping political communities
and if we continue to accept them without understanding
them as costs in terms of the way we exist as communities,
we will soon find that we no longer recognise our polities
CoNCLUSIoN
The rapid rise in incarceration in the US and several other
countries from the 1970s through the 2000s has often been
driven by the incarceration of drug users. As discussed above,
these policies have had very broad effects. They have impacted
those imprisoned but also their families and communities. The
expansive reach of ‘mass incarceration’ and its collateral effects has
been accompanied in many cities by increased contact between
citizens and law enforcement, increases in the time and financial
impositions on individuals awaiting trial, a decline in the quality
of correctional health care and a reduction in available services for
formerly incarcerated individuals. These complex and inter-related
patterns show the ways in which imprisonment, human rights
and public health are now intimately related. With their growing
concentration of vulnerable populations and their relationship to
drug markets, immigration, human trafficking, border security
and global pandemics associated with sex and drugs (HIV), the
international public health significance of criminal justice systems
and prisons grows apace.
This examination of prisons through the lens of public health has
documented the long- and short-term implications of criminal
justice involvement, particularly incarceration, for public safety
as well as their economic, social and health effects on society.41
With this new public health basis of concern, there is renewed
professional interest in the possibilities for families, schools and
neighborhood institutions to divert individuals from criminal
offending, recidivism and the continued risks of jail and prison.
The fiscal burdens of incarceration in the US and elsewhere
have also animated new efforts to develop and strengthen
community-based sanctions as alternatives to custodial ones.
These challenges, their individual and collective effects and
their concentration within the most vulnerable racial and ethnic
minority communities in many nations have motivated an intense
re-examination of the ‘carceral continuum,’ now viewed across
the multiple domains of public health, health care and social
services. 42 Most recently, there is renewed interest in sweeping
reform of drug criminalisation and ending the continued
criminalisation of drug users – including developing programmes
of general amnesties for prisoners of the drug wars.43 ■
CoNCLUSIoN
In spite of methodological challenges, a significant body
of evidence shows that health services for people who use
drugs have significant social and economic benefits, including
reduction of crime and increasing the ability of people who have
lived with addiction to be economically productive. This evidence
has figured insufficiently in policy and resource allocation
decision-making on drugs, apparently frequently overshadowed
by political factors. These services should be a high priority for
fiscally-minded governments, which should especially ensure that
they are not undermined, for example, by policing that targets
health or needle exchange facilities to find drug users to fill
arrest quotas, or by undue ‘not in my backyard’ neighbourhood
opposition to the placement of drug treatment clinics. Moreover,
drug-related health services derive the greatest benefits when
they target marginalised people with a propensity to commit
crime, in spite of the obvious political challenges posed by
directing funding toward these individuals. ■
