09/27/15 Doug McVay

This week we hear from John Walsh of the Washington Office on Latin America and Professor Mark Kleiman from UCLA as they address a meeting of the UN University on preparations for the 2016 UNGASS.

Century of Lies
Sunday, September 27, 2015
Doug McVay
Drug War Facts
Download: Audio icon COL092715.mp3



SEPTEMBER 27, 2015


DEAN BECKER: The failure of drug war is glaringly obvious to judges, cops, wardens, prosecutors, and millions more now calling for decriminalization. Legalization. The end of prohibition. Let us investigate the Century Of Lies.

DOUG MCVAY: Hello! And welcome to Century of Lies. I'm your host, Doug McVay, editor of DrugWarFacts.org. Century of Lies is a production of the Drug Truth Network for the Pacifica Foundation Radio Network.

And now, on with the show.

In April 2016, the United Nations will hold a special session of the general assembly focused on drug issues. Many nations as well as civil society are working hard in preparation for this event. It's the first real opportunity for the world's leaders to discuss new developments in drug control policies, and possibly to begin the process of reworking or renegotiating the international drug control treaties.

As part of that process, the UN is holding several meetings and informational sessions on various aspects of drug control policies. Earlier this month, the UN University held an event called Identifying Common Ground for UNGASS 2016: Considering Comparative Perspectives on Drug Policy. Experts from around the world were invited to present their opinions and to review data. We're going to hear some of that discussion on today's program.

First, let's hear from John Walsh. John is the Senior Associate for Drug Policy and the Andes for the Washington Office on Latin America. He's coordinated WOLA’s Drug Policy program since 2003, in support of more humane and effective drug policies in the Americas. Respected for his combination of careful policy analysis and effective advocacy, John Walsh has helped establish WOLA as a key voice in the growing movement to make human rights, public health, and harm reduction central concerns of drug policy. Let's hear his presentation to this UN group:

JOHN WALSH: As has been more than hinted, Uruguay has felt constrained, in fact, by the Conventions as they stand, in their basis in prohibition, emphasis on controlling supply and on criminalization. And there is something in fact new under the sun, in the sense that Uruguay became the first modern nation to pass a law at the national level that legalizes and regulates all levels of the cannabis market. So this is restricted to cannabis, it is not other drugs, but keep in mind that cannabis it the world's most widely used illicit drug, the most widely used illicit drug in Uruguay, and also under the tightest control within the international conventions. So, it bears watching what Uruguay is doing, and I think everybody is going to pay close attention.

UNKNOWN VOICE: I don't think your mic is on.

JOHN WALSH: Sorry if people missed that. So, new under the sun, Uruguay is very conscious that it was the first country to take this step, and I think that shaped the measure that they eventually passed and are beginning to implement now, in a way that, it's very self-consciously a bold step, but also as a result, being implemented very cautiously. So it combines the two, and I'll discuss briefly the domestic political constraints that shape the law and also the international concerns that shape the law and how it's being implemented, and then point to what Uruguay's role could be and should be with respect to the UNGASS and beyond.

In the first place, domestically, politically, the Uruguay law which passed in December 2013, as distinct from say the US ballot initiatives that have succeeded passing in the US in 2012 and 2014, this law did not enjoy a popular support within Uruguay and still lacks popular support. So there's a big distinction. The government decided they -- it was the right thing to do. They had the votes in the Congress and they were going to do it, and hope that it sold itself in public opinion over time. That has yet to be seen, because as I'll explain, implementation has barely begun.

So, it's different in that it was a measure that a government took because it thought it was the right thing to do, and unlike in the US, doesn't enjoy popular support. So of course the government is going to be very cautious in how it structures the law and implements it to ensure that it can do what it's supposed to do. On the other hand, the government was very wary of and mindful of the views of its neighbors, because going first in this field to regulate a substance that other countries consider and enforce as illicit would understandably raise concerns that there's going to be Uruguayan cannabis flowing into other markets, or people from other countries going to Uruguay to get Uruguayan cannabis. Can you hear me now? Is that --

So, they've been mindful of their neighbors' concerns, and in a way that affect the way they structured their law, and their very deliberate pace of implementation, but also in the sense that the Uruguayan government was very aware of the international conventions, and the extent to which they would be criticized for doing something that clearly, in the provisions that prohibit all conduct related to cannabis except for scientific and medical, Uruguay is contravening.

So, in the United States, more or less at the same time, different states have passed ballot initiatives to legalize and regulate cannabis. This, on the international front, has afforded Uruguay ample space politically to do something that's very similar. Why? Because the United States, as people know, was the key architect and principal enforcer of the UN drug conventions, and the United States is now in an awkward spot because the Obama administration has rightly in my view accommodated the US state-level legalization. The US is not in a position to hammer away at Uruguay for doing something similar, albeit what Uruguay is doing is a national level as opposed to what is happening in the states in the US.

So, two big challenges: domestic public opinion, international, contravening the conventions, and what will the neighbors say. I think on both fronts, those have gone reasonably well for Uruguay. In the first case, in terms of domestic public opinion, while polls show, have shown consistently since this idea emerged under the Mujica government back in April 2012, polls have found that close to two thirds of Uruguayans reject the idea. Nevertheless it hasn't been a salient issue politically, and I think the best proof of that is that the Frente Amplio, Mujica's party, returned Congressional majorities in both houses of the Congress in their elections last fall, and that Mujica's predecessor and now successor, Tabaré Vázquez, had smooth sailing to election for the Frente Amplio. So there's continuity in the government, which doesn't mean that Uruguayans are pleased necessarily about the law, but I think they're suspending their disbelief and waiting to see how it works out.

So, the government has important continuity to make revisions to their plan without having to re-engage the entire debate. On the international front, I think the US has clearly afforded Uruguay much more political cushion than they would have had otherwise. At the same time, they have used a different argument than the US is using. The US is saying that the treaties are flexible enough to encompass legal regulated markets within a territory. Uruguay has said on the other hand, they've sidestepped the question of whether they contravene the conventions and say, there are other international obligations that take precedence, especially the human rights -- human rights law and our international human rights obligations, and if there happens to be a mismatch between human rights obligations and what the drug conventions mandate, the human rights obligations take precedence.

So, how has this shaped what Uruguay has done in it actual law and implementation? Again, the conscious boldness of the step but also being cautious. It's reflected in the design in several ways. First, what Uruguay provides under law now, and in slow implementation, are three sources of legal access to cannabis for adults. One is home grow, up to six plants in your home. One is cannabis clubs, between fifteen and forty-five members, ninety-nine plants in total. And one is sales, commercial sales, through pharmacies. In each case, the user, or the grower, needs to be licensed by the state, they need to be registered to do that activity. In each case, it needs to be an exclusive choice. In other words, if I'm going to choose to home grow, I can't register to purchase through pharmacies. If I'm going to be a member of a club, I can't home grow. So it has to be exclusive access.

It's eighteen and over, and it's only Uruguayans and permanent residents. In other words, visitors can't come in and go to the pharmacy when that's active, and purchase. So, the exclusive access, the registry, a monthly limit of up to 40 grams and production limits for home grow and clubs, are all designed to ensure that the cannabis that Uruguay is producing stays within Uruguay and is traceable.

In terms of cautious implementation, the two first avenues for legal access are underway in terms of home growing, registrations of about 3,000, and clubs, a dozen maybe in the process of getting their accreditation, but the pharmacy-based sales haven't even begun. In fact, the licensees to do the commercial growing haven't been awarded. I think that will happen within the next month or so, but I think the Uruguayans are being deliberately cautious in making sure they don't leave anything to chance, because they know people are watching. So, there's the caution. The bold, because it's bold in and of itself. They're being cautious because they know people are watching.

They're also given themselves a modicum of flexibility in how they're carrying it out. In terms of the pricing for example, how will the different levels of potency within different strains of cannabis be priced? They haven't decided that for sure, because they want to leave flexibility as a market evolves. I think Uruguay's innovation in this sense is an opportunity for not just Uruguay, but for other jurisdictions that are contemplating alternatives to this current regime that will do a better job at public safety, public health, and hopefully find a way to remove resources from the hands of criminal markets. So I think what Uruguay offers, you know, going into UNGASS but beyond UNGASS, is an opportunity for all jurisdictions to watch closely and to monitor carefully.

From WOLA's point of view, we welcome Uruguay's initiative in this sense, not because we think it inevitably will succeed, but because there are very good reasons for trying it, and because there's a commitment in Uruguay to evaluate what they do, both to continue to inform the process as it moves forward, and to ensure that what they learn can be used by other jurisdictions. So I think the same message should apply to state-level legalization in the United States or any other jurisdiction that's innovating, especially in a way that, in this case, is unprecedented and hasn't existed under the control regime, and will provide evidence, not all of it positive, but all of it useful, about ways forward that can actually accomplish the goals of the drug conventions, which are to improve human health and welfare. So I can leave it there.

DOUG MCVAY: That was John Walsh, Senior Associate for Drug Policy and the Andes at the Washington Office on Latin America, speaking at a UN University forum on Identifying Common Ground for UNGASS 2016: Considering Comparative Perspectives on Drug Policy.

You're listening to Century Of Lies, a production of the Drug Truth Network for the Pacifica Foundation Radio Network. I'm your host Doug McVay, editor of DrugWarFacts.org.

Now, let's hear from another expert. Mark Kleiman is a Professor of Public Policy in the UCLA School of Public Affairs. He teaches courses on methods of policy analysis, on imperfectly rational decision-making at the individual and social level, and on drug abuse and crime control policy. He's also been a consultant to the state of Washington as it rolled out its program of legal adult use marijuana regulation and sale. Let's listen to what Mark had to say at this UN forum, back on September Sixteenth.

MARK KLEIMAN: So, the United States as has been mentioned -- pardon me -- has been in some ways the fatherland of tough drug policy, and it's now slowly, cautiously backing away. Micro-harm reduction is now accepted policy, things that were terribly controversial five years ago are now accepted practice. It's widely accepted across the political spectrum that having half a million people behind bars at any one time for drug law violations is too many. Now that consensus will not lead to rapid change, partly because very long sentences means that if we stop sending people to prison today, the number of prisoners would remain high for many years to come, and partly because the legislative changes have not happened. So I don't expect a rapid change in that, but at least rhetorically there is widespread agreement that we've over-used incarceration with respect to drugs and other things.

In fact, there's a widespread misbelief in the US that the bulk of our over-incarceration problem stems from the drug war. That unfortunately is not true. Only about twenty percent of the prisoners in the US are serving time for drug law violations. The bad news is that we have drug law prisoners per capita than Europe has prisoners per capita. And fixing the larger mass incarceration problem will be a very serious challenge.

There has been slow softening on cannabis policy. There's been decriminalization, that is formal depenalization or reduction in penalties for drug possession for personal use. Then, legalization of sale under the medical rubric. And finally, legalization of production, sale under the commercial system in Washington, Colorado, now also Alaska and Oregon. Ohio on the ballot this year, I think not likely to pass. Massachusetts, Vermont, California, all possible legalization states for 2016. Vermont may do it by legislation. The RAND Corporation did a report for them on what their options were, which I think is a very, very good report. So all of that's happening.

There's not yet a public backlash, public opinion continues -- seems to continue to drift slowly in the direction of legalization. That drift may have stopped. There doesn't seem to be any strong public support for going backwards. Indeed, the growing market for cannabis, now about forty billion dollars a year, now forms an argument for legalization. There's certainly no enthusiasm for the level of enforcement effort that would be required to suppress a market that large, that's now, by a large factor, the largest illegal market in the US. So many of us believe that cannabis prohibition in the US now is where alcohol prohibition was in around 1929. It's an interesting experiment, it got the good college try, it's failed, it's time to think about something else. I think that's a widespread though not a consensus view.

A wild card, and there's always a wild card in the US, is the rapid spread of heavy, problematic opiate use, starting with prescription drug diversion, now seemingly having fueld a fairly major heroin epidemic. Lots of places that hadn't seen heroin before. There's no consensus on a response, but most of the discussion is in the harm reduction direction. Nobody has a plausible law enforcement solution to this problem in sight. The chapter I did for the book was primarily on the experience in Washington, and Oregon -- I mean Washington and Colorado. And there's not actually very much to say yet.

A story is told that turns out to be untrue, but it's still a good story. A story is told about Henry Kissinger and Chou En-Lai, and the first time that Kissinger went to Beijing to visit Chou, at the beginning of "ping-pong diplomacy." Of course, Kissinger and Chou were both historians before they became what they became, and in the story, Kissinger decides to break the ice with a little historian small-talk. So he says to Chou, in China, do you think the French Revolution was a good thing or a bad thing? And Chou responds, in China, we think it's too soon to tell. That seems to me a very good lesson to apply to Colorado and Washington. Partly because those were states which had radically opened up the quasi-medical market, to the point where any adult in Washington or Colorado could easily get a medical recommendation, and there were retail stores, open stores, where you could go in and buy.

So, like California, Colorado and Washington virtually legalized even cannabis commerce years before they formally legalized the commercial stores. Oh I'm sorry. I'm sorry. So, the change when formal legalization happened was really quite small, at the beginning, the commercial prices were well above the medical prices because the licensing system was slow in licensing production capacity. So in the early days, it was mostly the tourists in Colorado and Washington who suddenly had access. The locals had already had access and were not going to pay up the legal price. So, we can't really say what the outcomes are in terms of use and drug-related harm of legalization yet, because we really haven't started that experiment yet.

There is enough process evidence, I think, to be a basis for worry here. I differ a little bit from John Hudak of Brookings, who's been far more enthusiastic about what's been going on. He points quite properly to the successfully governance part of the effort. Right? It's been demonstrated that you can in fact license legal production, and that the people get the licenses and that those stores will operate in accordance with the law. That's all true, and it wasn't obvious that it would be true, so that does count as a success. But it's fairly clear that the promise that we would substitute tight regulation and high taxation for prohibition as a means of suppressing heavy drug use are simply not going to be kept. Neither the tax regime in Colorado nor the tax regime in Washington is likely to do that. Neither state is putting controls on marketing, other than marketing to minors. So they've lurched all the way from prohibition to full commercial legalization, leaving behind the dozen intermediate steps that the RAND Vermont report identifies.

The key fact about all of these markets at the consumer end is the 80/20 rule: about twenty percent of the users account for eighty percent of the consumption. That's true for a wide variety of human activities. But for many drugs, tobacco's the big exception. The implication of that is that if you're in the business of selling cannabis, your primary consumer is a very heavy user. So the typical casual user is not a major player in the market, and as a result, the commercial stores, the medical outlets, all cater to the very heavy user, producing very high potency product.

There's no evidence yet for the promised good outcomes of legalization: no reduction in problem drinking or total alcohol consumption, no shift toward milder products, somewhat the reverse. No cultural change toward temperate use, no industry norm of responsible selling. Preliminary evidence from medical marijuana states suggest an increase in juvenile use as a result of increased adult availability. Olivier Marie's study in the University of Maastricht suggests fairly severe bad educational impacts of increased access to cannabis. And as the RAND group predicted years ago, commercial prices are falling like a stone in Washington and Colorado. The key fact about cannabis is that it's a weed. In the long run, a joint is going to cost what a teabag costs, plus tax. That's likely to have some substantial public health impacts.

The good news is that there is evidence, more from the medical marijuana states than from Colorado and Washington, that increased access to cannabis leads to decreased use of opiates, especially among older adults. But the natural tendency of commercialization is toward an increase in substance use disorder involving cannabis, and the bad news, not about legalization but more generally, is that substance use disorder involving cannabis has been soaring in the United States for the last twenty years. Forty percent of the people who used cannabis in the last month say they've used it every day or almost every day in the last month. And half of those people meet diagnostic criteria for substance use disorder by their own self-report. So while we've been debating legalization we've actually developed a serious cannabis problem for the first time. About four million with a cannabis use disorder.

There is no current national debate on harm minimizing legalization, on legalization intended to blunt the public health impact, and the educational impact, of legalization. The hawks don't want to admit defeat, and the legalizers don't see any reason to compromise, and it's all being done by referenda which means that you can't get anything complicated into the law. And again, the industry depends on dependent users, so anything that would in fact prevent substance use disorder would be a commercial disaster from their point of view.

The international debate is also polarized between hawks and legalizers. That, it seems to me, is unfortunate. The observation that Harold made, that drug enforcement cannot suppress drug consumption entirely, is not equivalent to the claim that legalization would not have drastic impacts on the consumption level. Things aren't good now, they could get a lot worse. And there are lots of changes, not involving full commercial legalization, that could reduce the harm of drug trafficking and drug law enforcement. Insofar as we're going to do legalization, we need to think about how to blunt the public health impacts, and the best example there is the one drug that's never discussed in UN fora, which is alcohol, which does more damage than all the illegal drugs combined.

The new, good news, as Harold mentioned, is that it turns out that even if somebody's fairly severely addicted, if you put that person on, who's been convicted of a crime, ideally not simply drug possession, on a regime of random testing and swift, certain, and modest sanctions, you can drastically suppress drug use far better than you can with any drug treatment program. Doing that could greatly reduce the damage that consumer country demand inflicts on producer country political systems.

DOUG MCVAY: That was Mark Kleiman, Professor of Public Policy in the UCLA School of Public Affairs and noted drug policy researcher and policy analyst, speaking at a UN forum on drug policy that was part of the run-up to the UN General Assembly Special Session on Drugs that's scheduled for April 2016.

Well for now, that's all the time we have. Thank you for listening. This is Century Of Lies, a production of the Drug Truth Network for the Pacifica Foundation Radio Network. I'm your host Doug McVay, editor of DrugWarFacts.org. We come to you each week with thirty minutes of news and information about the drug war and the drug policy reform movement.

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