"Legal highs: could this be the end of the road?" – asks Joe Shuts in his article, published in The Telegraph. He refers to the new blanket ban the UK government has recently introduced to stop the flood of so-called legal highs, new psychoactive substances which have been spreading all over Europe since 2009. Should other governments follow the British example and adopt similar bans? The answer has to be a resounding "No".
Cheap and legal synthetic substitutes for currently illegal drugs, with similar psychopharmacological effects but slightly different chemical structure, are now available in great quantity and variety in Europe. Most of these substances are produced in China and India, purchased and transported by traffickers, for distribution in smartshops or online shops. They are legal – until the government outlaws them. Most European governments, including the UK, have created legal mechanisms aimed at bringing these substances under control as quickly as possible. Countless new substances have been banned over the course of the past few years, but the market has not diminished, with the banned drugs constantly replaced by new versions. The UK Parliament has now approved a bill which effectively bans everything with the potential to have a psychoactive effect, with some exemptions, for example alcohol and tobacco.
This law may raise high hopes in those who desperately seek an end to the spread of legal highs. But it is a false hope. If we have learned anything from the century-long history of attempted drug control, it is the futility of having high expectations when it comes to repressive legal measures. When federal alcohol prohibition was introduced in 1919, Reverend Billy Sunday exclaimed, "The reign of tears is over. The slums will soon be a memory". What soon became a memory, in actual fact, was prohibition itself.
When the first UN drug convention was adopted in 1961, member states expected the chewing of coca leaf to disappear within 25 years. Coca is more popular now in Latin America than ever. When Nixon declared a War on Drugs in 1968, he promised that the enforcement of harsh drug laws would soon end marijuana use. Marijuana is now legal in several states. The last UN General Assembly on Drugs, in 1998, adopted a political declaration aiming to create a drug-free world within ten years. This declaration was reconfirmed by member states in 2009, despite the clear signs of failure. Despite current bans on smartshops selling legal highs, emergency scheduling systems, and generic lists of new psychoactive substances, the availability of legal highs is continuing to grow. In Ireland, where a blanket ban on legal highs was introduced in 2010, the rate of new psychoactive substance use is the highest in the EU. For those who know the history of drug prohibition, the belief that a new blanket ban might bring an end to the market of new drugs would constitute insanity under Einstein’s famous definition (doing the same thing over and over again and expecting different results).
In the event that this new law can be enforced at all, the most realistic scenario is that it will create a black market in the drugs which are currently sold legally. The grey market will go black, online shops will move to the darknet, distributors will go underground, and may resort to violence to resolve conflicts. The police will need to devote additional time and human resources to enforcing the law, some companies will earn a fortune from designing new surveillance systems, more people will go to prison, it will be more difficult to conduct scientific research with psychoactive substances, and even less resources will be allocated to public health and social interventions. The drug market may change again, with new substances replacing those currently on the market – but the demand for mind-altering substances will remain constant.
A blanket ban is a danger to the rule of law. It is a fundamental principle of criminal law in a liberal democracy, that you can do anytthing that is not an offence. Nullum crimen sine legal certa – that is, there is no crime without a precise law. Lawmakers must avoid vague definition of criminal norms, in order to maintain respect for the rule of law. Scientists and scholars have been researching psychoactive substances for many decades, without coming any closer to a clear-cut definition which could constitute the basis for a criminal norm. Neuroscientists have pointed out that there are no strict boundaries between food and drugs in terms of the neorobiological processes they induce. Legal pleasures, such as eating and gambling, can produce very similar alterations in the brain as drugs, including dependence. We know that some psychoactive substances are even produced by our own bodies. Should law enforcement agencies now be required to decide which substances are "capable of producing a psychoactive effect"?
Even setting aside the practical problems with enforcement, the introduction of a blanket ban represents another missed opportunity to regulate the market. If retailers and distributors go underground we lose any chance of intervening to protect consumer rights and interests. The market will become even less transparent, and that lack of transparency is in itself a danger. If we criminalise the distribution of all psychoactive substances, the black market will regulate itself – but along the lines of profit maximisation, not consumer protection. Many young people experiment with drugs – this is something we cannot change. But it would be possible for us to create legal access to some substances which pose a lower risk to public health, ensure quality and safety standards, impose age restrictions, and provide information and tools to minimise the harms related to use. We could also reallocate resources away from costly law enforcement measures, to honest drug education, interactive school- and family-based prevention programs, and treatment for those who would like to quit.
It is a delusion, to wait for the perfect law which will at last stop the flow of new drugs and block up all the loopholes – such a law will never materialise, because human demand can never be ended by legal means. We have to stop thinking about the drug question as a dripping tap that can be fixed by new repressive measures. Politicians need to realise that the real challenge is not to ban as many substances as soon as possible, but to face up to the reality of human behaviour, and to minimise risk, through responsible regulation. Such regulation certainly represents a challenge, for governments which have been stuck for decades in a punitive mindset – but it is an achievable challenge, if governments can only bring themselves to start looking at the situation realistically.