Like men possessed: what are illicit drug laws really for?

Zero tolerance is a faith and not a policy. Creativity103/Flickr, CC BY-SA

According to the UK government’s “first evidence-based study”, released at the end of last week, tough laws for personal possession of illicit drugs fail to lower levels of their use. This is not news to anyone who has spent any time looking into the social cost of the “war on drugs”, so what is the purpose of these laws?

After 50 years of drug prohibition, we know our current regulatory structure is a catastrophic failure. We also know that what is sometimes called “harm minimisation” has been remarkably successful in reducing deaths from drug overdose, levels of HIV infection in the population of intravenous drug users, and so on.

But the “zero tolerance” approach to illicit drugs continues to hold sway, most notably in the United States. And through the international drug control treaty system that gives signatories little freedom to go their own way.

The puzzle is why political hostility to harm minimisation is still so dogmatically entrenched. When our friends and family behave irrationally, acting in self-destructive ways, in the end we stop trying to reason with them and send them to an analyst. It is their irrational impulses that need to be understood.

So it is with law. It’s time to reassess what drug laws are “for” if we’re to understand why they have proven so hard to change.

Anxieties about race

Drug laws came into existence not as a response to a regulatory need but as a manifestation of anxiety.

In the early years of the 20th century, what had previously been a question of habit, pleasure, or shame, became branded as criminal. The crime of possession came, in time, to define drugs: a “drug” was that which could not be legally possessed; if it could be, then it was not a drug at all, but a medicine, a drink, or a smoke.

Initially, racial anxieties lay behind these new distinctions. The first laws against drug possession were enacted around 1900, in the United States and Australia, Canada and South Africa. These laws, which formed the template and precedent on which all later “narcotic drugs acts” were built, focused exclusively on one form of one drug: “opium suitable for smoking”.

The first drug laws focused exclusively on one form of one drug: ‘opium suitable for smoking’. From the Illustrated London News, 1 August 1874/Wikimedia Commons

Pharmaceutically, this made no sense (why not ban other forms of opium?). But the Chinese were associated with opium smoking, and all the countries that led the rush to prohibition had large and poorly assimilated Chinese minorities.

The stories that circulated in newspapers and magazines at the end of the 19th century consistently imagined opium as an agent of seduction. The Chinese dealer is invariably depicted as a trafficker in young white women, and opium is the trick that preys on her innocence.

Here’s one example from The Bulletin, in 1886:

One of the girls now kept in a den on the Rocks, says … ‘I went to … place when I was only about 16 because he used to give me presents. He then wanted me to smoke, but I never would, because the pipes looked so dirty. But one day he put a new pipe before me, and made it ready, and after the first whiff from it, he or any other man …. I was completely at their mercy, but so help me God I was a good girl before that.

In Australia at that time, questions of racial identity assumed particular importance. The fear of sexual relationships between Chinese and white Australians encapsulated anxieties that led to discrimination, exclusion, racism, violence, riots, and murders.

In this respect, opium was a useful device. It relieved “white girls” of responsibility for their actions. Though they might be punished for taking opium, the treatment of the drug itself as the active principle allowed them – and society itself – to remain innocent.

The parallel with the witchcraft laws of a much earlier time is uncanny. The role of “possession” is similar in both.

First, it provides a causal explanation for unacceptable social behaviour. Whether as an occasion for punishment or for treatment, the person is not responsible for their behaviour; the drug – or the devil – “made them do it”. Neither is society responsible for the punishment; rather it’s the drug itself that is being exorcised.

What’s more, it provides physical proof of invisible demons. The legal possession of a drug offers physical evidence of an evil that’s otherwise entirely psychological. The witches’ sexual possession, and their possession of others, likewise provided the sole physical evidence of the reality of the demon world.

The fear of sexual relationships between Chinese and white Australians encapsulated anxieties that led to the development of drug laws . UnklNik/Flickr, CC BY

It’s hardly coincidental that the legal category of crimen exceptum recognised the need to abandon normal standards of legal proof in certain special cases. Its first example were the laws of witchcraft; its main modern examples are our drug laws, with their deeming and reverse onus provisions.

Performing prohibition

We live in a time of enormous social anxiety, though now of course our fears are less simply focused on questions of race. Drug laws continue to relieve these anxieties by dramatising them, giving them a public shape and creating public scapegoats for social problems.

The standard portrayal of the drug addict – a creation of our drug laws just as much as the traffic in illegal drugs is a creation of those laws – as dulled and incapable, sapped of all will, reassures us of their absolute otherness. The solidity and the certainty of our own idea of society is shored up by vivid contrast with theirs.

The image of the possessed addict paints a picture of a world where night and day are clearly marked, where we are awake and they are asleep. How well such a picture justifies our anxious feelings about the state of the world, and reassures us that we are in no wise responsible for it.

The prohibition of drugs is not an attempt to destroy but rather to perform our anxieties; like a piece of theatre or an act of worship.

In this light, much that seems incomprehensible about the current drug regime becomes clear – particularly its paranoid over-reaction, and its unremitting failure to achieve its so-called purposes.

The battle to eliminate a drug traffic that becomes more profitable the more aggressive our legal response, is devastatingly counter-productive. Every drugs seizure, every boatload or shoot-out, is clearly of only the most trivial significance. But it is presented, by police, lawyers, government, and the media, as an elaborate morality play staged for the cameras.

The legal structure of drug laws is not an attempt to regulate or solve a problem, but on the contrary an attempt to dramatise a world view. Seth Anderson/Flickr, CC BY-SA

This is not simply a sideshow made possible by law, or a consequence of the failure of legal principles to achieve their promised goal. On the contrary, this drama is precisely what drug laws have always and only been “for”, right from the days when it was the ethnic background of users that mattered most.

The function of illegality is not to stamp drugs out, but to make it more public, more dramatic, more theatrical. Drugs serve an object lesson – a lesson in the perils of becoming an object. And the proof of this slavery – its undeniable physical evidence – is made present, once and for all, by users' possession of the drugs that possess them.

The legal structure of drug laws is not an attempt to regulate or solve a problem, but on the contrary an attempt to dramatise a world view. Zero tolerance is a faith and not a policy, a faith at the heart of which lies the importance of social rules, obedience, and respect for the distinctions between right and wrong. And which sees the legal system as an all-powerful arbiter and enforcer of social norms.

Behind that faith lies fear: fear of the consequences of a loss of certainty, fear of a weakened legal capacity, and fear of a “permissive” world in which such bright lines can no longer be drawn.

Such a world is not being brought into existence by drug users themselves; they are merely the puppets forced to play in this theatre of the absurd.

Our politicians do not fear witches: they hope for them. In pursuing and insisting upon this hope, against all the evidence and with ever more shrill and inflexible determination, those who continue to advocate such policies behave, above all, like men possessed.