Effective Drug Control: Toward A New Legal Framework

What the Current System Allows
The drug control system under the federal Controlled Substances Act can be said
to operate fairly effectively with regard to substances whose manufacture and distribution
are closely regulated, although there have been some persistent problems of diversion of
certain regulated substances to street markets, such as Oxycontin. In general, however,
the regulation of the scheduled drugs abides by the principle of controlling substances to
a degree that is commensurate with their known propensity for harm and problematic use.
There is one critical and enormous exception to this principle – the absolute prohibition
of substances in Schedule I, which has ironically resulted in the ceding of control of those
so-called “controlled substances” to the black market, effectively leaving their production
and distribution exclusively in the hands of criminal enterprises.
On a global scale the regime of drug prohibition has wrought devastating
consequences, as powerful gangs threaten stability and corrupt governments in the poorer
“source” countries, people and the land are poisoned by drug eradication efforts and
terrorist networks tap into the big business of prohibited drugs to fund their operations.
In the United States and Europe the poor are also drawn to the fleeting profits of the drug
trade and end up in jails and prisons in grossly disproportionate numbers. 391
U.S. efforts to suppress drug production from “source” countries have repeatedly
resulted in more efficient production within those countries and in the displacement of
production to other countries. Despite the destruction and seizure of hundreds of metric
tons of prohibited drugs each year, the supply “keeps flowing in at prices that … are still
low enough to retain a mass market… [and] making U.S. borders impermeable to heroin
and cocaine has proven impossible.” 392 Data from the White House drug office itself
show that the U.S. drug interdiction strategy has been an abysmal failure, as prices for
cocaine and heroin remain at or near their all-time lows, while the purity levels are at
their all-time highs. 393
The prohibition of alcohol in the early 20 th century in the United States was a
failed experiment that revealed how such “a ban could distort or corrupt law enforcement,
encourage the emergence of gangs and the spread of crime, erode civil liberties, and
endanger public health by making it impossible to regulate the quality of a widely
consumed product.” 394 Drug prohibition has given rise to the same effects and is now
prosecuted on an international scale.
The Business of Dealing Drugs
History has shown that high profits are assured to those who provide through the
“black market” a prohibited product for which there is an unrelenting demand. Without
any regulation, this black market regulates itself through such illegal means as violence
and money laundering. The so-called “profit paradox” has been highlighted as one of the
fundamental flaws in the prohibitionist drug control strategy, whereby the high streetlevel
cost of prohibited drugs leads to higher profits, which, in turn, create stronger
incentives for criminal enterprises to continue doing business in prohibited drugs. 395