As Stevens & Measham 1 note, my ‘ninth implicit rule of evidence-based drug policy’ asserted that ‘[s]cientific research on drugs cannot motivate a change from tough law to lenient law, but it can motivate a change in the opposite direction’ 2. As with the first eight such ‘rules’ 3, this was offered in a tongue-in-cheek rhetorical style that allowed me to shirk from the hard work of actually providing supporting evidence. We should all be grateful that Stevens & Measham took their task more seriously, assembling relevant UK evidence in support of their thesis that there is a ‘drug policy ratchet’, such that ‘substances labelled as drugs are likely to face tighter rather than looser control’. Conceptually, it is important to distinguish two different questions—a broader ‘which direction does policy move?’ versus a narrower ‘which direction does research move policy?’. I think Stevens & Measham would agree that the ratchet proposition is more plausible for the narrow question. While drug policies in the United Kingdom and the United States have often moved in a more stringent direction, there are clear counter-examples; below I discuss the cases of cocaine and marijuana. Moreover, while controls on illicit substances often tighten over time, regulations of many legal ‘vices’ (alcohol, tobacco, state lotteries) sometimes erode, rather than tighten, over time. A second conceptual distinction is between the stringency of laws and rules versus the stringency of their enforcement. Stevens & Measham focus on the former (specifically, drug scheduling), and I am unsure how strongly they would assert a similar ratchet effect for arrest rates, prison sentences and so on. Indeed, Ross 4 argued that laws and their enforcement can have a compensatory relationship, such that police, prosecutors and jurors ease up when laws seem too tight, and tighten up when laws seem too loose. Even for the narrow domain of drug scheduling, the ratchet claim is probably more of a tendency than a hard empirical law, and indeed Stevens & Measham report some examples of re-scheduling towards looser control. Nevertheless, one has to dig deeper to find examples of loosening than of tightening. The website http://www.uspharmacist.com 5 helpfully informs pharmacists that ‘the list of scheduled controlled substances is subject to change. A number of drugs have received recommendations for greater or lesser control.’ It then lists eight examples involving a tightening and only one (cannabis) involving a loosening—and it is only a ‘proposed’ loosening. [In fairness, such cases exist; e.g. synthetic dronabinol (‘Marinol’) was moved from Schedule II to Schedule III in 1999 6.] How well does the ‘drug policy ratchet’ describe two of the most important cases of drug policy change in the United States: the recent reduction in mandatory minimum penalties for crack cocaine and the stringency of marijuana laws? The 2010 Fair Sentencing Act reduced the disparity between minimum penalties for crack versus powder from a 100 : 1 ratio to an 18 : 1 ratio—clearly a loosening. Conversely, even the 18 : 1 disparity seems so out of line with any medical or criminological evidence 7 that it seems almost churlish to count the drop from 100 against the ratchet hypothesis when the 18 is so preposterously greater than 1. The other notable US case is the recent (and ongoing) relaxation of marijuana laws and their enforcement. This has proceeded in two stages. First, there has been a steady diminishment of the severity of enforcement of existing marijuana laws, such that enforcement in ‘decriminalization’ states is nearly indistinguishable from that in states where first-time possession is potentially subject to jail or prison 8. Indeed, Humphries 9 recently estimated that between 2007 and 2012 there was a 42% decline in arrests per day of marijuana use; but does that count against the ratchet hypothesis? Perhaps not, as it is unclear whether scientific evidence has played much of a role, relative to changing attitudes, demographics and state budgets; and, of course, we would have a larger body of medical evidence on marijuana if not for the tenuous state of what passes for evidence-based policymaking in this domain. None.
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Nov 20, 2024
Ashfiya Nur Atqiya + 4
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