Drug Abuse

First published in contemporary drug problems 1992 (247-277) © 1992 Federal Legal Publications

Drug crime and legal control:

lessons from the Canadian experience

BY PATRICIA G. ERICKSON AND YUET W. CHEUNG

Criminologists make a fundamental distinction between acts of predation, which threaten or injure others, and health-corn-promising behaviors, which put oneself at risk (Glaser, 1978). This distinction is reflected in the division between criminal and regulatory law. Most potentially health-threatening acts engaged in by consenting adults, including substance use, are dealt with outside the criminal law. In this century, however, illicit drug consumption has been perceived as an act of self-predation and has been punished severely (Duster, 1970; Musto, 1973). The distributors and sellers of drugs have also been subject to very severe criminal sanctions. Canada is among those Western countries that have displayed harsh legal responses to illicit substances.

Much of the discussion on the "drug-crime connection" has focused on the manner in which drug use and sale itself con-tributes to both predatory crime (e.g., robbery) and nonpredatory crime (e.g., prostitution). The three major linkages are the psychopharmacological, the economic-compulsive and the systemic modes identified by Goldstein (1985; see Harrison, this issue, for a review of his model). Much less attention has been paid to the fact that drug law itself has "created" a category of crime (i.e., "drug crime") by criminalizing illicit drug use and related activities. While both aspects of the drug-crime relation are worth studying, the primary concern of this article is the latter. This emphasis is in part because data sources for the three usual linkages, police arrest records or drug-testing of offenders, have not been adequately studied or systematically conducted in Canada (Lightfoot and Hodgins, 1988). Moreover, each wave of attempted suppression of a new substance in the past decades reflected the overdependent or "addictive" use of the criminal law as a means of controlling illicit use. By highlighting the Canadian experience, this article aims to shed light on the relationship between drug crime and its very creator-legal control-and comment on the effectiveness andlimitations of criminal law in controlling health-threatening behaviors.

We will examine the extent of criminal justice involvement and its consequences in Canada with respect to four sub-stances: alcohol, heroin, cannabis and cocaine. Alcohol was subject to national prohibition from 1915 to 1918 and for varying periods in the 'teens and twenties by different provinces. Heroin, cannabis and cocaine (first banned in 1911, 1923 and 1911, respectively1) are prohibited under the present Narcotic Control Act. In a particular decade, each substance became the target of criminalization efforts, defined as the increased intensity and/or severity of punitive legal intervention. This occurred with alcohol in the 1920s, heroin in the 1950s, cannabis in the 1970s, and cocaine in the 1980s.

Like violent crime rates generally,2 rates of illicit drug use (especially heroin and cocaine) are much lower in Canada than in the U.S. (Cheung and Erickson, forthcoming; Hagan, 1984; Tonry and Wilson, 1990). The differences in drug problems between Canada and the U.S. are illustrated not only by differences in drug use and crime rates, but also by public perceptions of these problems. In the "Two Nations" survey conducted in May 1990, respondents age 18 or over in both countries were asked identical questions (Maclean's, 1990). Their responses to the question "In your opinion, what is the most important problem facing Canada [the United States] today, the one that concerns you most?" show a marked contrast. While 21% of those in the U.S. placed alcohol/drug problems first, only 1% of Canadians gave this issue top priority. In Canada, seven other issues were ranked higher than alcohol/drug problems, while in the U.S. only one other issue (other social/moral issues) took precedence. In another 1990 survey, of Canadians only, respondents were asked "how concerned" they were about a number of issues (Toronto Star, 1990). While 88% were "very" or "somewhat" concerned about illegal drug use, even more concern was shown for the environment, honesty in government, tax levels, inflation and unemployment. Taken together, the results of these polls suggest that while Canadians do not lack concern for illegal drug use, several other issues command as much or more attention. In the U.S., however, perceptions of drug problems are of overwhelming importance. It is therefore not surprising that less attention and concern have been directed at the drug-crime relationship in Canada and that fewer data are available. We shall now turn to a detailed examination of Canada's experience with criminal prohibition of drugs.

Alcohol-the 1920s

The first large-scale experiment with prohibition in the modern world was with alcohol.3 In Canada, the ban on alcohol was imposed federally during World War I, extended by the individual provinces, and discontinued in all but one by 1929. Since anti-alcohol laws pertained mainly to production and sale, and consumers were not the target of enforcement, this era might more properly be described as "partial prohibition," akin to the decriminalization of marijuana possession in several American states in more recent times (Single, 1989). Or, since alcohol was available on prescription in Canada, "prohibition" was also similar to the contemporary controlled-drug status of amphetamines and barbiturates in the Food and Drugs Act (Smart and Ogborne, 1986). Nevertheless, alcohol "prohibition" has become the prototype of the failure of criminal law in the addictions field. Although prohibition is now assessed and defended in terms of its public health impacts, the impetus in Canada (as in the U.S. for its Prohibition period from 1919 to 1933) was the moral pressure of temperance ideology, not a concern for health (Gusfield, 1963; Schweighofer, 1988; Smart and Ogborne, 1986).

For most close observers of that era, prohibition did not completely "fail," in the sense of a limited objective of reducing overall alcohol consumption, but was rather an extremely costly policy in broad societal terms. Research evidence from this era is limited and largely impressionistic. Indirect evidence from Ontario showed a 40% drop in alcohol-related deaths (including cirrhosis) during prohibition compared with the previous five years (Smart and Ogborne, 1986:59). However, levels of alcohol problems also declined in other countries without prohibition in this period (Glaser, 1985). It is possible, too, that Canadian reporting practices changed, as would be expected, when behaviors became more deviant or illegal. Adverse health effects were experienced by people who drank impure or contaminated alcohol from local producers. What quickly became evident was that the laws were not only largely unenforceable and widely broken, but also that they generated high costs in terms of corruption, violence, and the fostering of large-scale criminal organizations.

Drinking did continue, although outlets and settings changed. While taverns and bars were closed, illegal drinking places (speakeasies) flourished 24 hours a day. In Canada, each province could manufacture alcohol "for export," and much of this supply was transferred between provinces or went to the U.S. The bootlegging fraternity was expanded by those eager to share in the enormous profits, and those arrested were readily replaced. Some of the profits were channeled to local police and customs officials who would conveniently "look the other way" as required. One small motorboat operating out of Windsor, Ontario, across the river from Detroit, was shown as having "exported" a boatload of liquor from Windsor to Cuba four times in one day (Smart and Ogbome, (1986:54)! Reports on the corruption and dishonesty of the enforcers helped to turn public opinion against the laws banning alcohol.

The level of violence escalated as rival gangs competed with each other for the profitable trade. Also bootleggers had confrontations with police and special agents. The use of "stool pigeons" and "spotters" to spy on the public, and open search warrants, further alienated the majority of citizens. Violence in the illicit trade seemed to be more extreme in the U.S. than in Canada. Smart and Oghorne (1986) note that carrying guns and "shooting it out" was much less common north of the border.

Within a relatively few years, national and provincial prohibition lost ground. What had been voted in was voted out, although Prince Edward Island held out until 1948. Prohibition was repealed and was replaced by a system of provincial regulations. Repeal occurred not because alcohol was seen as a safe or harmless drug, but rather because harsh lessons were learned about the limitations of the law in preventing the use of an already desired and well-established commodity. Calls for more resources and powers devoted to the enforcement of prohibition were shown to be ineffective and to increase the lawlessness of the trade. Powerful economic interest groups saw the advantage of producing alcohol legally, high-status members of society wished to consume alcohol without inconvenience, and governments saw the benefits of taxing alcohol.

While memories of alcohol prohibition fade, alcohol remains a major contributor to the criminal justice workload (Hagan, 1984). Alcohol consumption is a component of situation-specific criminal offenses like public drunkenness or drinking and driving (Giffen, 1976). Penalties for impaired driving, made more severe in 1985, include a mandatory minimum period of incarceration for second and subsequent offenses. Offenses related to impaired driving numbered 121,307 in 1988, representing 4.8% of all criminal charges (Statistics Canada, 1989a). Canadian research on prison inmates has also reflected the general trend for incarcerated offenders to display high levels of alcohol problems and for alcohol intake to precede the commission of their crimes (Lightfoot and Hodgins, 1988). In sum, in a predominantly regulatory approach to alcohol control, criminal sanctions are reserved for those who combine alcohol with other risky or antisocial activities.

Table 1
Convictions for cannabis, cocaine, heroin and other drugs, and total convictions including and excluding cannabis, Canada, 1976-1989

					total convictions under	all drug related legislation
Year	Cannabis	Cocaine	Heroin	Other Drugs	Including cannabis	Excluding cannabis
1976	39,353	374	737	2,357	42,791	3,438
1977	42,088	448	686	2,352	45,574	3,486
1978	36,256	546	609	2,392	39,803	3,547
1979	36,338	643	563	2,970	40,514	4,176
1980	41,010	905	349	4,010	46,274	5,264
1981	44,155	1,297	294	3,874	49,620	5,465
1982	35,019	1,443	318	3,484	40,264	5,245
1983	29,122	1,712	318	3,559	34,711	5,589
1984	26,315	2,441	359	3,270	32,385	6,070
1985	22,597	2,901	364	3,620	29,482	6,885
1986	-	3,457	374	3,688	-	7,519
1987	-	4,263	290	3,941	-	8,494
1988	-	5,928	341	3,600	-	9,869
1989	-	7,018	328	2,547	-	9,893

Heroin-the 1950s

Canada's first narcotic laws were directed at suppressing opium-smoking among Chinese laborers (Solomon and Green, 1988). Once aging Chinese users had died off or been deported and Chinese immigration had been stopped since 1923 (Li, 1988), convictions declined from nearly 1,000 annually from 1912 to 1920, to fewer than 200 per year up to the 1950s. Some increase in the number of Canadian heroin addicts did occur in the post-World War II period, but this was likely on the order of a few thousand mainly non-Chinese addicts whose numbers peaked in the early 1970s and then declined (Blackwell, 1988b). The strength of the "addict criminal" stereotype in the U.S. (King, 1974), rather than any objective threat this small group posed in Canada, appeared to engender further intensification of enforcement and penalties. In 1954 and 1961, Canada's Narcotic Control Act was toughened to the extent of providing life imprisonment for trafficking and importing-a penalty that stands today.

Those who bore the brunt of the harsh provisions of the criminal law were the street addicts4 (not the medical or professional addicts), who were also usually small-time dealers. The major reference work in Canada is the report by Stephenson et al., Drug Addiction in British Columbia (1956). Their account shows the minimal deterrent effects of the law on addicts and the hardships wrought by its enforcement. Stephenson and his colleagues estimated, from a variety of sources, that 900 active heroin addicts (excluding health professionals) were living in British Columbia in 1955. Over a 20-month period this group received a total of 755 prison sentences. Some spent the whole period in prison, and others were sentenced two or three times. On an average day 550 of the province's street addicts were in prison, leaving 350 at large to occupy the 32 full-time narcotics officers or one officer for every 11 addicts. Yet the number of addicts did not decline, and most addicts continued a cycle of arrests after release. Even if personality "weaknesses were shown to predate addiction, years of crime, years of prison, years of unemployment, years of anti-social hostility (and society's anti-addict hostility) . . . -these can hardly be expected to strengthen a personality and eradicate its weaknesses" (Stephenson et al., 1956:518).

In Canadian debates of the 1950s and 1960s, there was some expression of the view that the poor health and degraded lives of heroin addicts were due to the existence and enforcement of the criminal law and the associated social conditions of addicts' marginal status (Blackwell, 1988a). This led to the introduction of some methadone maintenance programs, but little research has been conducted (Everson and Segal, 1978). Clients being served by methadone treatment, mainly in British Columbia, number in the hundreds overall (Alexander, 1990). A proposal for compulsory treatment of heroin addicts was entertained by the British Columbia government but was eventually abandoned (Boyd et al., 1988).

Nevertheless, arguments for more humane treatment of heroin addicts, for adequate treatment facilities, and for greater consideration of individual rights fell, for the most part, on deaf ears. The highly negative stereotype of the addict and the acceptance of criminal controls continued to dominate public discourse. The accumulation of scientific evidence that opiates were not directly as harmful as alcohol or tobacco (Snyder, 1989) appeared to have little impact when the basis for sanctions was strongly held moral disapproval. The fact that the addicts were a small and powerless group provided little impetus for a major rethinking of Canada's response to heroin use.

Current surveys continue to show that heroin or other opiate use is infrequent among the general population or students (Health and Welfare Canada, 1990; Adlaf and Smart, 1991). Official estimates of the number of current heroin injectors run as high as 25,000, but many scholars believe the actual number is much smaller (Beatty, 1991; Blackwell, 1988b). Convictions have remained low (e.g., 328 convictions for heroin possession in 1989), and there is no evidence of any increase in the 1980s (see Table 1). Following conviction, prison sentences are more likely to be imposed for either p05session or sale of heroin than for possession or sale of cannabis, hallucinogens or cocaine (Erickson, 1990a). The incidence of HIV transmission related to drug injection has been low in Canada-fewer than 3% of known AIDS cases-likely because syringes can be legally purchased from pharmacies and some needle-exchange programs have been established (Smart, 1991). In sum, while heroin users and sellers continue to be pursued and punished severely, the numbers are insignificant next to the numbers subject to criminal sanction for cannabis and cocaine (see Figure 1).

Cannabis-the 1970s

The use of cannabis increased in the 1970s and has been declining since about 1980 in both the student and the general population. The prevalence of having used cannabis in the past 12-month period was halved among Ontario students from 1979 to 1989, from 30% to below 15% (Adlaf and Smart, 1991). A Canadian national survey in 1989 indicated that 6.5% of adults (15 years and over) had used cannabis in the previous year, compared with 11% in 1980 (Health and Welfare Canada, 1990). Cannabis arrests and convictions also declined in the 1980s. As is evident from Figure 1, the "drug crime" rate in Canada has been principally the "cannabis crime" rate. Possession has, until recently, accounted for upwards of 80% of cannabis offenses. Although the number of possession convictions has declined, sentences for simple possession have become slightly more severe in the past decade because of tile declining popularity of tile discharge provision among judges (Erickson, 1990a). (The discharge imposes a finding of guilt and a criminal record without registering a "conviction.")

Sentences for cannabis trafficking offenses have changed little, with the majority of offenders (about two-thirds) receivmg prison terms of less than two years (Erickson, 1990a). Few studies have been made of the deterrent impact of the threat of legal sanctions on marijuana sellers, but one such study showed that they were more cautious and sold less frequently because of fear of arrest but did not cease the activity (Ekland-Olson et al., 1984). And what of the presumed deterrent effects of the law on cannabis use? The thrust of numerous findings demonstrated the very weak role of legal threats compared with extralegal factors in decisions to use or not use cannabis (see Erickson, 1980:86-91, for a review). Marijuana use became the most studied crime in the deterrence literature, enabling one investigator who exploited it for a comparative analysis of methodologies to conclude that however and wherever studied, "perceptions of formal sanctions play little or no role in explaining variance in rates of self-reported marijuana use" (Lundman, 1986:381).

If deterrence was ineffective in stemming increased marijuana use in the 1970s, was it perhaps partly responsible for the decline in the 1980s registered in Canada as well as the U.S.? This seems unlikely for several reasons. First, since the sentencing law was unaltered and arrests actually declined, objective properties of severity and certainty were not enhanced during this decade. Second, the perceived risk of getting caught not only did not increase it actually declined between 1985 and 1989, during the period when use decreased (Smart and Adlaf, 1989; Adlaf and Smart, 1991). Indeed, heavier users were found to have a greater perception of arrest risk than lighter users (Erickson, 1989). Third, both greater social disapproval of marijuana use and greater perceived risk of harm from marijuana use were found to account for a substantial proportion of the decline both in the U.S. and Canada (Baebman, Johnston, O'Malley and Humphrey, 1988; Adlaf and Smart, 1991). Finally, demographic trends of an aging population have no doubt played a role (Glaser, 1985). Thus it seems reasonable to conclude that legal threats were as remote a force in the trend of declining use as they were in the upswing of the previous decade and a half. Studies of long-term cannabis users those who persisted in the practice through the 1970s and 1980s~indicate that their disregard for the law was unchanged (Erickson, 1989). What is not clear, however, is the extent to which the criminal law has exerted a less direct moral and educative role in reinforcing the greater unacceptability of cannabis among youthful would-be users (Health and Welfare Canada, 1988).

A second lesson from cannabis experiences in the 1970s was the considerable cost that prohibition generated in terms of the criminalization of hundreds of thousands of mainly youthful users in Canada (Le Dam, 1972). An extensive empirical, longitudinal study of such a group documented that adverse individual consequences did occur, and with a broad range of impact (Erickson, 1980). While most of this sample of 95 first offenders for cannabis possession resisted criminal self-identification, they feared that others such as parents and employers might stigmatize them. The unknown future consequences of a criminal record placed them in a vulnerable position. The selective process of drug enforcement ensured that those officially labeled as "cannabis criminals" were among the youthful, more disadvantaged segment of the cannabis users population (see also Johnson, Peterson and Wells, 1977). Thus for most offenders the record was an additional handicap to future prospects.

Some disrespect for police and courts was generated by the firsthand experience of harsh or seemingly arbitrary treatment (Erickson, 1980). The absolute discharge did not mitigate most of the harmful effects of criminalization, and it exacerbated the perceptions of uneven sentencing. On the whole, these adverse consequences were not compensated for by specific deterrent benefits: 92% of the offenders continued to use one year after court, and those few who stopped were much more likely to have been the lighter or experimental users at the time of arrest. A replication study seven years later showed no major changes in the characteristics of cannabis offenders or the impact of criminalization on them, but the police and courts had become more efficient in processing offenders and reducing the burden on the criminal justice system (Erickson and Murray, 1986; Murray and Erickson, 1983). Aging cannabis users learned to "live with prohibition" (Erickson, 1989), and so, it seemed, had the rest of society.

Table 2
Total drug offenses, by status, drug, and type of offense, Canada, 1988

Source: Statistics Canada catalogue #85-205, "Canadian Crime Statistics 1988." Ottawa, Canadian Centre for Justice Statistics, 1989
1. Includes phencyclidine as well as opium, methadone and other synthetic opiates
2. Amphetamines and barbiturates. No possession offense.
3. LSD, MDA and other hallucinogens
4. Offenses are different from convictions shown in Table 1. Offenses are always a much larger number because they reflect police activity in making arrests and otherwise recording offenses "known" to them. Convictions are the result of a court process and a finding of guilt.

Cocaine-the 1980s

In addition to lessons provided by earlier decades and drug prohibitions, cocaine in the 1980s demonstrated the tremendous expansion and power of the international drug trade. Whether concealed in nativity scenes, hollowed-out navel oranges, or any other of the multitude of possibilities utilized by smugglers, the amount of cocaine hydrochloride shipped to the U.S., Canada and newer markets increased dramatically. Efforts to stop shipments at the borders met with very limited success (Wisotsky, 1986). Nevertheless, expenditures of more resources for interdiction in the past decade have been ineffective in preventing greater availability and higher purity of cocaine on the street (RCMP, 1990). Declining prices have been displayed in Canada; for instance, the price of 1 kg cocaine hydrochloride had fallen from $100,000 in 1981 to a low of $34,000 in 1989 (RCMP, 1990).

The reasons for the failure of interdiction to keep prices high-the traditional justification for spending so many resources on this supply-side activity-have been explored thoroughly by Reuter (1988) and Kleiman (1990). The production costs of cocaine at its source, in the South American countries growing and refining it, is very low compared with the retail price. Thus importers can readily replace the cocaine seized at the border at about 1% of the retail cost. This means, for example, that the large American seizure of 20 tons of cocaine worth an estimated $2 billion dollars (in California in 1989) could be replaced by $20 million dollars of investment at source. The traffickers can easily pass on additional costs, such as when pilots or captains demand extra pay to compensate for increased risks, to the consumer. As Kleirnan notes, to "the South American drug lords, a kilogram seized is about as good as a kilogram snorted or smoked" (1990:16). Interviews with convicted high-level traffickers suggest that skill requirements are slight in comparison to the substantial profits to be made (Reuter and Haaga, 1989). Thus more recruits to the trade are soon found.

The recognition that the cocaine drug barons and their higher chain of command represented the "new untouchables," virtually immune from traditional methods of drug enforcement and prosecution, prompted the development of strategies for financial controls. If the supply of the drug could not, for the most part, be seriously impeded in its journey from the jungles of Peru and Bolivia and the Colombian processing laboratories, perhaps the supply of money back to the upper echelons of the trade could be interrupted. These attacks on finances took the form of the seizure and forfeiture of assets and the tracing of money flow. It is early yet to assess their effectiveness, but some preliminary evidence suggests a fairly limited impact.

In Canada, the RCMP's anti-drug-profiteering program, established in 1981, reported an increase in assets seized from $8.4 million in 1983 to $38 million in 1989, for a decade total of $91 million (RCMP, 1990). This nonetheless represents a rather tiny proportion of the RCMP's questionable estimate of an illicit drug trade worth $10 billion in 1984 alone ($1.2 billion for cocaine) (RCMP, 1986). [Other independent estimates of the value of the Canadian illicit drug market have been considerably lower, in the $2 billion~$3.2 billion range5 (RCMP, 1988).] But even the lower estimate would indicate that only a minute proportion of drug profits is seized.

The other financial initiative, the tracing of "dirty money," has been a complex and cumbersome procedure, but it has been aided by the passage of Bill C-61 (1989), which greatly expanded Canadian police powers in identifying, seizing and requiring forfeiture of all types of property obtained through criminal activity. Although a former high-ranking RCMP official in charge of drug enforcement has stated that U.S. drug money does pass through the Canadian banking system, bankers believe that further stricter regulations would be cumbersome and largely unproductive (Maclean's, 1989).

Deterrent effects of the law on cocaine users appear to be minimal. As with cannabis, health threats are more salient (Erickson et a]., 1987). A study conducted in the mid-1970s showed that cannabis users had a fairly positive attitude to trying cocaine (Erickson, 1982). A comparison of perceptions of cannabis and cocaine in an adult sample who used both drugs in the mid-1980s showed that these users saw cocaine as more subject to social disapproval, posing greater risks to health, and carrying a higher potential for addiction; consequently users were more likely to give up cocaine than cannabis (Erickson and Murray, 1989). It appears that with the passage of time, knowledge of cocaine's risks became more widespread despite any change in law or legal responses (Bachman et al., 1990).

While virtually all cocaine users are former or current cannabis users, cocaine users are likely to be drawn from the greater frequency end of the cannabis use spectrum. While this does not imply that all, or even the majority, of cannabis users go on to become cocaine users, this association has contributed to cannabis's reputation as a "gateway" to cocaine (Clayton, 1985). Since most would-be cocaine users have already breached the barrier of illegality with prior use of cannabis, they are likely to perceive a low risk of detection in obtaining and using cocaine. Indeed, these activities often occur in the same friendship network as cannabis use (Erickson et al., 1987). In a sense, the prohibition of cannabis has provided an educative function in making users aware of how relatively insulated they are from, and how best to avoid, the application of criminal sanctions.

What is the extent of cocaine use in Canada, and what has been the magnitude of the criminal justice response? National survey results from 1985 indicate that fewer than one in 100 adult Canadians 15 years and over (0.9%) had used cocaine in the previous year (Health and Welfare Canada, 1988). Trend data for both the adult (18+) and student populations in Ontario show a stable or declining pattern of current use, and no increase in heavier use levels (Erickson et al., 1987; Adlaf and Smart, 1991). Nevertheless, measures of criminalization for cocaine all show an increase during the 1980s. Convictions have gone up by a factor of seven, total offenses numbered over 11,000 in 1988, seizures increased, and cocaine products became the avowed major target of anti-drug activity (RCMP, 1990). The proportion of cocaine traffickers imprisoned, about 80% of the total, remained quite stable during this decade. The proportion of possession offenders jailed, which climbed from 19% in 1980 to 29% in 1989, reflected a caseload that increased from 87 to 1,088 (Bureau of Dangerous Drugs, 1989). Overall, the increased numbers of incarcerations for cocaine offenses placed a considerable burden on the courts and prisons.

That enforcement against drug trafficking is generally a costly enterprise is illustrated by a simple calculation of the price of incarceration for the year J988. Although admissions data for prisons in Canada are not reported separately by drug, 6% of all admissions to provincial facilities were for "narcotic" drug offenses and 11% of admissions to federal facilities were for violations of the Narcotic Control Act (Statistics Canada, 1989a). Since over 90% of trafficking offenses are for cannabis and cocaine (see Table 2), and few possessors of either drug are jailed, the total incarceration costs will reflect primarily the costs of punishing these traffickers. The combined provincial-federal total costs for incarcerating this group, then, was $265 million for 1987~88 (that is, $207 million provincially and $58 million federally).6 In addition, the costs of enforcement, covert activities, prosecution and customs would considerably enlarge this figure, for possession and other offenses as well. Yet no national data are published and thus available to provide a total estimate of criminal justice costs for illicit drug control.

Canadian concerns about crack, and the fear of cocaine before that, seem to be fueled more by American media depictions of a "crisis" than by evidence of the relatively minor nature of the problem in Canada (Alexander, 1990; Erickson et al., 1987; Cheung and Erickson, forthcoming). A study of crack users in Toronto dispelled some of the myths about the "instantly addictive" quality of crack and the lack of control displayed by all users of this form of cocaine (Cheung et al., 1991). Even those who were concerned about addiction were very unlikely to seek treatment (Erickson, Watson and Weber, 1991). Increased resources have been devoted to policing, prosecuting and imprisoning the perpetrators of the "crack/cocaine menace" at federal, provincial and municipal levels. These efforts are likely to escalate further the criminalization of the users of other drugs as well. Cannabis, especially, is caught up in the slipstream of the anti-cocaine drive and continues to be the major component of Canada's drug-crime connection.

Discussion

The criminal law, as the Le Dain Commission and the Law Reform Commission of Canada have emphasized, has costs. These costs are considerable to the individual offender, who experiences some loss of control over his/her life and carries the stigma of a criminal record; to society, which pays the social and economic costs of enforcing the prohibition; and to all members of society, whose liberty and choices are to some extent constrained by the criminal law. If then, the criminal law is to be utilized with the object of reducing the harm caused by drug use, it is not unreasonable to require that demonstrable benefits will accrue that outweigh the costs. The objectives of using the law in the control of drug use must be clear, realistic, achievable and evaluated. On this basis, it becomes possible to know what to do next that might improve the attainment of objectives.

The guiding principle of the use of the criminal law as a primary instrument of social control of drug use is its general preventive effect. If functioning ideally, the deterrent threat of punishment in combination with the law's educative-moral effects will ensure a high degree of law-abiding behavior and agreement on the necessity of punishing transgressors. The evidence reviewed about the actual practices associated with efforts to suppress drug use and distribution in a prohibitionary scheme illustrates, however, considerable non-compliance with the law, divergent viewpoints on its appropriateness, and associated high levels of individual and social costs. Why is the law not more effective in shaping behavior in this particular area?

First, drug users perceive the risks of arrest as remote, and the objective reality of detection of drug activities is in fact low. Moreover, contrary to the postulates of deterrence, frequent drug users have a higher perception of the risk of punishment than do lighter users. On a related point, the fear of stigma following arrest and conviction for possession has been eroded as a deterrent by the increasing "normalization" of the offense, at least for cannabis users. Severity of punishment likely loses some of its relevance when actual and perceived certainty of detection in the first place is so remote. Since drug users are unlikely to have accurate knowledge about drug laws, this wide gulf between intended threats and how they are perceived by target groups also helps to explain the ineffectiveness of the prohibition.

The educative or socializing effects of the law are meant to encourage compliance by setting out standards of acceptable behavior. This role is undermined in practice by the contrast between legal categories and other knowledge relevant to drug problems. For example, cannabis, cocaine and heroin belong to different pharmacological categories and carry different health risks, yet in Canada all are legally "narcotics." Prohibited drugs are addictive, but so are their medically prescribed counterparts (amphetamines, tranquilizers and barbiturates) and their regulated competitors (alcohol and nicotine). Added to this seeming illogic is the severity of the maximum sentence, life imprisonment, which seems out of proportion to any harm caused directly to others by the use of these particular prohibited drugs. Thus the credibility of the law as a guide to acceptable behavior is undermined by inconsistencies.

The moral authority of the law is activated in part through its presumed impartiality. This is weakened by the widespread violations of the drug laws with very little enforcement relative to the total volume of drug-law breaking that occurs. This is, of course, inevitable when crimes are characterized by low visibility, lack of complainants, and desirable commodities. Differential arrest and prosecution of drug offenders, in that many higher-status violators go unpunished, further brings the authority of the law into disrepute. When awareness becomes widespread both of the nonenforcement against most users and of the age, race and sex bias in what enforcement does occur, disrespect for the law increases.

Another aspect of the moral function of the law is the provision of the opportunity for normative validation, or the shared condemnation of certain acts. This stance is more difficult to sustain in a pluralistic society when opinion is sharply divided on the "rightness" or "wrongness" of certain acts. It is difficult to view as seriously criminal behavior that is engaged in by a substantial proportion of the population. The laws may be retained as a largely symbolic and ineffectual gesture of disapproval, as long as actual enforcement is minimal. Drug users who do not accept the authority of the law over this aspect of their behavior can readily rationalize their own choice without feeling "criminal." Thus the drug laws have failed to command the consensus much more readily extended to predatory crimes against person or property. If the practicalities of prohibition suggest that the law is a weak form of social control over drug use, why then do we continue to rely on it so extensively, and what are the future prospects for the prevention of drug problems?

If other forms of prevention were completely effective, the law would not be needed. But since it is likely that law is inversely related to other forms of social control (Black, 1989), then the gradual relaxation of coercive legal controls may be needed to stimulate the development of alternatives.

Conversely, the further development of other informal social controls may reduce the amount of legal intervention. There is no disputing that drug use can be dangerous and poses risks that society must endeavor to minimize-but at an acceptable level of social costs. Thus the law may best be applied where it is likely to have the most effectiveness, where it can command credibility, and where it can earn the greatest public support. The enforcement of prohibition may drain resources to activities that generate arrests and seizures but provide little payoff in terms of minimizing harm from drug use and that are funded at the expense of more broadly based community prevention and treatment efforts (Erickson, 1990b). The deleterious effects of prohibition are evident in their impact on users-the unhealthy and degraded lives of heroin users; the criminalization of youthful cannabis users; the reluctance of cocaine addicts to enter treatment-without the compensation of significant demonstrable deterrent effects.

Nevertheless, it is also important to recall that the law performs an important social integrative function when it sets the boundaries of moral consensus on acceptable and unacceptable behavior. Thus when publicity is generated by the arrests and/or sentencing of drug criminals, the collective conscience is expressing the value that, for example, "we will not tolerate dealing in illegal drugs." Much of the "drug war" rhetoric can be viewed as an effort to maintain or strengthen this moral consensus. On the other hand, to rely exclusively or excessively on legal intervention is to achieve a state of legal overdependence, in which the law becomes like an addictive drug (Black, 1989). In part, members of the public do not always know what the alternatives are or how to activate them. This misplaced focus on law enforcement, which then receives widespread public support, can be seen as an expression of frustration and impotence. The call for more enforcement and more severe punisnment can serve as a distraction from the underlying social conditions that foster drug abuse and cannot be addressed by legal intervention.

Conclusion

We suggest that it is important to refocus the social control of drug use on the individual, the family and the community (see also Alexander, 1990; Mitchell, 1990). The key is to regain at these levels the responsibility that has been delegated to an abstraction, "the law." The criminal law is an inefficient tool for the control of nonpredatory behavior. In attempting to impose a moral consensus on a pluralistic society, attention is diverted from what the major causes of drug problems are. These cannot be addressed simply by reactive, punitive measures. As our society has become more fragmented and compartmentalized, the responsibility for enforcement of social order has been given to specialists-i.e., prosecutors, police, sentencers and jailers. Is it time to be reminded that social order is the responsibility of all citizens? The lessons of legal overdependency, seen recently in totalitarian regimes (e.g., China, Iran) are sobering. Here almost any behavioral expression can be defined as threatening to the state and hence punishable. Citizens spy on citizens. When the law is fully in command, morality itself loses relevance.

This quotation from Daniel Glaser (1985:619) both echoes the Le Daine Commission's call for the "gradual withdrawal from criminal sanctions" and provides an optimistic note for the future of social policy on illicit drugs:

Literature on what governments should do about personal vices of all types-from gambling to commercial sex to recreational drugs evolve in similar directions.

They begin with cries of moral outrage and exhortations to pro-scribe; they end with research reports that contrast what ought to be with what can be, and call for regulation rather than prohibition.

Perspectives on gambling, alcohol and prostitution control [for example] have moved further in such an evolution than perspectives on narcotics policies.

The trend toward greater tolerance for conduct that does not directly [harm] others is probably inexorable in the long run.

The lessons of prohibition, which have been costly, suggest a future course in which other kinds of controls must be considered. The choice is not between law and no law, or even between regulation and prohibition; rather it is a matter of determining a more effective balance in approaches to social control.

 

Patricia G. Erickson is a senior scientist with the Addiction Research Foundation (33 Russell St., Toronto, Ontario, MSS 251, Canada). her current research includes a longitudinal study of cocaine users, and her most recent book is Illicit Drugs in Canada: A Risky Business (1988). Other books include Cannabis Criminals: The Social Effects of Punishment on Drug Users (1980) and The Steel Drug: Cocaine in Perspective (1987). Yuet W. Cheung is a sociologist who is a research scientist at the Addiction Research Foundation, Toronto, and is also affiliated with the Department of Behavioural Science, University of Toronto. His areas of specialization include medical sociology, criminology, addictions, ethnicity and China Studies. He has published a book, Missionary Medicine in China (1988).

AUTHORS' NOTE: Parts of this paper were previously presented at the 40th Anniversary Scientific Lecture Series at the Addiction Research Foundation, 1989.

The views expressed in this publication are those of the authors and do not necessarily reflect those of the Addiction Research Foundation.

The authors would like to express their appreciation to Joan Moreau for her research assistance in compiling the statistics presented in this paper. We are also grateful to Bruce Alexander, Steve Martin and Lana Harrison for their helpful comments on an earlier draft.

 

Notes

1. See Cook (1969). Boyd (1984), Comack (1985), and Solomon and Green (1988) for different interpretations of the origins of Canadian narcotic laws.

2. In 1988 Canada's population was 26 million people. In that year the overall violent crime rate was 898 offenses per 100,000 population, and 'he murder rate was 2A, representing a total of 537 murders in the entire country (Statistics Canada, 1989b).

3. In the early 1800s China had attempted to ban opium, which was imported in large quantities into China by the British East India Company. The resulting Opium Wars of 1839~2 forced China to continue receiving opium imports (see Waley, 1958; HsU, 1975).

4 For example, in Canada the Bureau of Dangerous Drugs classified "known addicts" as either "criminal," "professional" (those who were members of the health professions) or "medical" (those under treatment for nonaddictive diseases); only the socially marginal "criminal" group was the focus of police attention (Giffen and Larnbert, 1988).

5. In Canada in 1988 the total retail sales value of all prescriptions dispensed was about $3 billion (Quon-Mak, 1991~a figure not far off from this independently estimated value of the illicit drug market.

6. These are the costs incurred in 1987-88 for incarcerating 5,689 provincial inmates and 1.241 federal inmates for violations of the Narcotic Control Act (Statistics Canada, 1989a).

 

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