The case for not punishing drug users




Strange, isn’t it, that none of us, when asked what we wanted to be when we were grown-up, answered “homeless, unemployed, alienated from society and addicted to crystal meth”. How does someone go from being a functional member of society to a drug addict on the fringes? What happens in between and what are the correct punishments, interventions or deterrents?

When a lonely rat in a threadbare cage is offered a choice between clean and (addictive) drug-infused water, it will compulsively drink the drug water until it kills itself. Yet when other rats with close social bonds are placed in a plush environment — with plenty of food, sex and other entertainment — and given the same choice, they will try the drug water once and then seldom, if ever, return to it, preferring to partake in the other more wholesome pastimes that are available.

A baby monkey, deprived of its mother and her milk, will prefer the warmth of a barren rag doll over a cold, metal doll that dispenses food. It chooses comfort over survival. Although what can be said for rats and monkeys does not necessarily hold true for humans, and although there exists no one size fits all, the conclusions of these studies, simplified and paraphrased above, are a decent foundation on which to build what follows.

Why do we “punish” certain behaviours as a society? When we talk broadly of “justice”, we try to strike a balance between, among others: providing society with a form of retribution for harm done to it, restoring right from wrong, deterring future misbehaviour and rehabilitating mischief-makers. In South Africa when wrongdoers are sentenced in criminal courts, judges and magistrates are mandated to consider the gravity of the offence, the circumstances of the offender and the public interest.

The traditionally repeated narrative about drug addiction goes something like this: human with high potential gets caught up in wrong crowd; tries drugs and is instantly addicted; drops out of school; joins gang; turns back on family, friends and home; then commits crimes to feed drug habit.

But is this always representative of reality? Cause and effect is seldom unidirectional, but an alternative goes something like this: human with high potential is hit with enduring wave of terrible luck; has no meaningful support structure; lives with dysfunctional family at home, if has family or home at all; is cast out by those few whom they had; turns to gangsterism and crime to survive; then looks to drugs for the only comfort available to them in the world.

Not all drugs are created equal. They are each used for different purposes and each one falls at a different place on the scales reflecting factors such as potential addictiveness and physiological and psychological harm to users and others. That said, loosely speaking, those with the highest potential for addiction, abuse and harm, seem to be those that act upon the “feel good” parts of the brain (the dopamine receptors).

It makes sense: one is easily induced into seeking to repeat that which makes one feel good, even if only in the short term. Sometimes, if they become physiologically addicted, an addict actually cannot feel normal without the drug in his system, their body having lost the ability to produce the good stuff on its own.

The reason I commenced with talk of rats, monkeys and theories of punishment is because I suggest that we must ask ourselves what we are doing, as society, by punishing drug users and drug abusers (there’s a difference, but this is for another discussion). What are we achieving, and, for that matter, what are we trying to achieve? Are we mitigating, or aggravating the problem? And, ultimately, who — or what — is to blame for this all?

South Africa is, by design, one of the most unequal societies on Earth. Millions live in poverty, without access to basic services, with little to no prospects of a decent education, unemployed, in or from broken families, surrounded by crime and desperation, and certainly without sufficient social services or other support structures. Many of these people turn to drugs. Why? Because, deprived of almost everything else to live for, addictive chemicals provide them with a little bit of warmth on cold nights, temporary detachment from unbearable realities and something to numb the pain. Straight to prison for them, then?

Heroin (essentially, dirty morphine) is one of the most highly addictive drugs around. Portugal used to have one of the worst heroin problems in Europe. The country now boasts one of the best heroin solutions in the world. What did they do? They bought into the alternative narrative and decriminalised the use and possession of all illicit substances. Social workers trawled problem areas and offered clean needles in exchange for safe disposal of used, dirty ones. These social workers spoke gently to the drug abusers, who were now open about their problems because the fear of arrest and prison was removed.

The addicts sought help and were invited into the rehabilitation centres that had been built with the significant funds diverted from enforcing criminal prohibition. They were upskilled, weaned off heroin with medical-grade alternatives and — now “clean” — reintroduced into society and the economy. In a decade, drug abuse rates halved and HIV transmission and drug-related crime had nosedived. Users went from being referred to as “junkies” to “people who had used drugs”.

What gives? Where is the “justice” in the Portugal example? Well, drug use is, more often than not, a victimless crime, in that the (ab)user is hurting themselves, but not others. When they hurt others, this would remain a crime, the sentencing for which would be aggravated by its relation to drugs, but does society otherwise require retribution when someone has hurt only themselves? Surely not. Taking drugs is a low-gravity offence. Wrongs were corrected, and society’s interests served, in that usage rates fell to far lower under Portugal’s new regime than when criminal prohibition was tightly enforced.

In addition to long-term comparative studies between strict and low anti-drug enforcement policies, this also calls into question whether we can really opine that criminal prohibition effectively deters problematic drug use. Importantly, the circumstances of the drug users were taken into account and they were truly rehabilitated and reintegrated.

It is all well and good to be academic about it, but there is a much more human point at play. Apart from the fact that most drug users (“the silent majority”) will never harm society, even those who do go on to become a menace remain, ultimately, the products (read “victims”) of the unsupportive, unequal and harsh environments that society has created or, at best, allowed to exist.

In a deterministic sense, they were always doomed to be so, exactly because nobody ever cared enough, most especially not “the system” supposed to protect them. In fact, for decades we have been making the situation worse, through criminalising their desperate behaviour, removing any remaining opportunities for their making it better and exposing them to the horrible inner workings of the criminal justice system — a trauma that tests the resolve of even the strongest people.

I am unqualified, alone, to propose a solution that addresses all of the nuances of a drug abuse problem that differs from place to place and person to person, each with their own socioeconomic differences. Every unique situation will require its own multidisciplinary, tailor-made approach.

But I am comfortable calling for the old, unthinking and fearful way of doing things to be scrapped and replaced with a system that holds empathy, love and human decency at its core; a system that seeks to address the circumstances that lead to drug abuse and one which helps those who have fallen victim to them. This, at a minimum, involves providing viable alternatives to the comfort that (ab)users seek (and need) from drugs.

That said, I favour, for obvious reasons, retaining penalties for those who would seek to lure-in and take advantage of the desperate and hopeless, by providing them, for personal gain, with truly harmful and addictive drugs. Such people are a menace to be guarded against.

I have seen and heard of too many lives ruined, not through drug use per se, but through getting caught for drug use. The current system is outdated, irrational, cruel, ineffective and open to police abuse. The “war on drugs” (actually on drug users) is lost. It never stood a chance from the beginning.

Why not stop fighting and judging and, rather, start helping those who have turned to drugs? After all, they are not our enemies — they are our sick and desperate mothers, fathers, brothers, sisters, aunts, uncles, cousins, friends, countrymen and fellow human beings.

Paul-Michael Keichel is a partner at Schindlers Attorneys and heads up its M&R cannabis law department. He was a speaker at the Mail & Guardian’s Cannabis: Legislation, Implications and Opportunities event in May

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