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Horst Bossong looks at a little fiction and some facts from the history of drug policy in Germany, considers the current situation, draws on the work of Christine Bauer in examining the various models for legalisation, and finally considers a new policy for drugs.
THE HISTORY
The German delegates at the General Assembly of the Ninth International Congress on Criminal Law in The Hague in 1964 took a hard beating. They were not able to assert their will against the superior strength of the other delegations although, as they believed, the were putting forth the best arguments of all to protect the health of the population, to promote moral maturity of the individual and to protect many acutely endangered people from brazen attacks by ruthless seducers. The conservative Germans tended to fear where the resolution defined at the conference would lead. The majority of the delegates only wished to ensure that those actions were penalised that involved relationships with minors, induced prostitution and were displayed in public in a way 'suitable to induce other persons to such behaviour'. I assume the Germans were in despair and horrified at this:
- Forebodings of the decline and decay of all values.
- Forebodings of occupation with offensiveness and abnormality in our society, particularly that young men, capable of work and with no previous convictions, would be jeopardised in future by the danger of brutalisation and seduction which threatened to spread like an epidemic.
Our society would become sick in a big way - and only because most of the delegates in The Hague put the case forward for playing it down and considering it as petty - presumably out of naïveté or ignorance. The issue in 1964 was not drugs, but the punishment of homosexual behaviour.
In my opinion, as a phenomenon, this is hardly different from the current drugs issue. As for the junkie now, the homosexual was considered to be sick, i.e. in Need of therapy, immature, i.e. in need of education, as equally seducing as seduced - and thus in need of consistent penal deterrents. The Federal Government's bill for penal reform in 1962 assumed 'that the majority of those affected by Paragraph 175 of the German Penal Law had become enslaved due to seduction, habit or sexual over-satiation'; the law should thus provide 'effective deterrence' (Brocher, 1966) and educate to moral, i.e. sexual, maturity. Seven years later, in 1969, Paragraph 175 then obtained its extensive essential liberalisation.
THE CURRENT SITUATION
Nowadays, in contrast we are concerning ourselves with narcotics. The expert reader will already have recognised some parallels of the 1964 issue to the current debate on drugs. First, as the homosexual seemed to be sick, fed up with normality and decency, seduced and seducing, unrestrained and impure, today the junkie is sick, seduced, immature, fed up with normal and decent drugs, i.e. alcohol, and bored. Second, most of those in favour of reform at the conference in 1964 did not want the simple, mutually agreed homosexuality among adults to be punished, but more to outlaw the situation of seduction; they invented the construction of 'ostentatious homosexual activity in public'.
A few weeks ago the judicial and interior authorities in (presumably not only) Hamburg abolished the 'ostentatious consuming behaviour in public', while formulating directives on implementing the new Narcotics Law, which was to be penalised in future. This behaviour, as the prosecutors argue, is likely to lead other, innocent people to the misuse of drugs. In reality, the potential hazard to a third party is not being punished here; after all, could anyone who sees a wrecked junkie injecting himself on the street be prompted to take drugs? It is more a matter of sanctioning valueless behaviour; it is a matter of asserting social adequacy instead of the protection of legal objects.
With these standards of penalisation, behavioural patterns outside the limits of what is considered worthy of punishment, are threatened with punishment.
If one is to state concisely what drug policy involves nowadays, one can say it is a policy of the 'as if'. Primarily, this 'as if' concerns the danger of the incriminated substances and the behavioural patterns related to these. Cannabis, heroin, cocaine and other narcotics, when seen pharmacologically and used in a pure and controlled form, are no more harmful, sometimes in fact less harmful, than legal drugs such as alcohol and nicotine. Nevertheless, our policy on narcotics lives on the fiction of the dangerous and fundamentally fatal substances. Drug addicts do not become impoverished and die primarily from the substances, but from the consumer pattern and style of life determined by their illegality.
As far as prosecution is concerned, the policy on drugs is very zealous and, in view of the growth in manpower, technology and competence behind it, non ending. In the last 20 years it has produced an army of prosecutors: detectives, open and (more and more) concealed investigators, specialised judges, public prosecutors and counsels for the defence, prison warders and intramurally active teachers and therapists. In addition to this, there is a flourishing market of the most modern, state of the art investigation and security apparatus, and - indirectly promoted by drugs - the expanding sector of private security services. Our drugs policy is effective and inventive in occupying public - and increasingly no longer completely public - sectors. It is creating more and more rights to intervene in the private sphere of the citizen and producing a more and more dense network of supervision; these are measures that, without the focus on the drug problem, could hardly be implemented in society. This all primarily serves to strengthen the 'objective' feeling of security which, on the basis of this, is likely to improve only marginally in the middle term.
We know that a maximum of 3-12% of drugs on the market are confiscated, i.e. a good 90-95% reach the final consumer. We know that car break-ins, burglaries and robberies are increasing and are, to a great extent, carried out by drug addicts. However, we are also aware that the articles, stolen and re-sold through dealers in hot goods, have increased substantially in value in recent decades. It is thus too banal simply to start grumbling about the increase in petty crime committed by drug addicts. However, for the 'as if' policy it is quite clear: the focus has been on the drug addict, on whom almost the entire extent of urban crime can be concentrated; most of the (security) problems in larger cities seem to develop from drug addiction and drug dealing.
A policy of 'as if ' creates notions and concepts that bring about wide agreement. 'Organised crime' is such an expression. Henner Hess quite rightly pointed out that the theory of the organised drug Mafia 'may be functional for many a thing, but has criminologically not yet been accurately defined'. 'Of course,' according to Hess (1992, p.324), 'drug dealing is organised and there are not insignificant profits', and not infrequently (particularly in countries of origin and many a country of transit) corruption. Drugs are, in fact, trading goods and it would be totally naive to assume that, on this world market with a high degree of labour sharing, it would be drug trafficking that would be carried out without any kind of organisation. It would be completely unreasonable, according to Hess (1989), to transform this 'complicated reality into a mythical monster'. It is the actual illegality of drug dealing that speaks in favour of a minor degree of organisation. 'As opposed to the prevailing opinion' it is not the formation of monopolies or oligopolies and the organised part of trade structures that marks illegal drug dealing and the special difficulties for prosecuting bodies, 'but it is the decentralised variety of the trade, . . . the relatively open competitive market' and the fact that 'the whole illegal business . . . is built up around personal relationships and personal contracts' ( Hess,1989) .
Nevertheless, in the 'as if' policy one speaks of organised crime to locate the enemy and almost everybody agrees (including many reformers! ). In this respect, the fiction, on the basis of which we are acting, not only exists in the idea that investigation instruments would be more likely to bring more solid success than the conventional ones, but also in that we think they would serve to save the addicts from their misery, and consequently drug aid . For their sake, according to our idea, the drug Mafia will have to be stopped in their tracks, no matter what means is used.
Naturally, we are not only following an 'as if' policy in drug prosecution but also in drug aid. In the BtmG, the German Narcotics Law, those paragraphs that aim at treatment rather than punishment of drug addicts are still regarded by many well-meaning liberal judges and defence counsels to be a liberal way out of the penal regulations, although we know that the treatment effectiveness of drug-free therapeutic communities is rather low, and that the treatment conditions are comparatively tough and restrict basic rights. The success amounts to around 20-30% of those treated, not forgetting that only the most highly motivated ones (and that normally amounts to scarcely more than 10-20% of patients ) start their therapy voluntarily and hold out to the end. In addition to this, most of the patients only actually achieve success at the second, third or fourth attempt. This often occurs in a phase during which independent loss of addiction without therapeutic assistance becomes increasingly probable ( Bossong,1983) . One could certainly grant the 'benedictions' of the treatment regulations to far more of those accused of drug addiction. These regulations are another expression of the 'as if' because they fictitiously assume that addicts enter treatment voluntarily. This is no real option, it is just the bad choice between jail and residential treatment. Moreover, by increasing the number of treatment slots and by providing extensions of the treatment regulations in the law, these treatment approaches do not become more efficient and client friendly. Yet such demands are still popular.
The same applies to the so-called low threshold help, crisis centres and advice bureaux. The present increase in such facilities suggests the maximum administrative activity to the public, and thus serious efforts on the part of the state towards reducing drug misery. The shorter the way, the more accessible a facility is, according to the assumption that the more probable it is for addicts to rise from their misery, the more socially compatible is their behaviour and the more approachable they become for therapeutic assistance. Certainly, there is absolutely no argument with low threshold help; however, many make the assumption that the drug addict is hardly able to go more than ten steps, and that if service agency for drug addicts does not exist on every corner the addict will be pushed into absolute helplessness. Nothing is wrong with changing needles and offering meals, but as many make the assumption that the drug addict would be completely helpless if countless social-educational hands did not hand out food and drink, condoms and needles to him or her around the clock. My theory is that we, by pursuing this 'as if' policy, extinguish almost all manifest and covert abilities and skills of addicts. This in turn is a reason for society to approach the addict with compulsory help because they cannot help themselves. Yet, each day they run around hustling. They are expert at organising everything they need. But when it comes to locating a drug service, this has to be located just where drug users meet, because only if it is close enough will they be able to use it. This is the logic of our drug service policy.
Perhaps everything is far more simple. Perhaps the addicts are less keen on the help centres than their helpers. Perhaps they make use of the offers because they are playing along in our game of 'as if'. But no, such thoughts must be forbidden, because in our drug policy, help as such is desired by the addicts and the lack of this is the actual scandal. Of course, everyone who requires help should obtain this as rapidly and non-bureaucratically as possible, and in a way appropriate to him or her; whether in reality all the estimated 100 000 consumers of hard drugs in Germany desire nothing as much as educational and therapeutic aid seems to me to be extremely questionable. The more probable assumption is that most drug consumers primarily want to purchase and consume their drugs under conditions worthy of human beings. But it is exactly this that we do not want - exactly what we are denying them. Up to today, there still seems no prospect of a majority in the Bundestag for the modest attempt from Hamburg made about drugs on prescription. For the more progressive attempt from Hessen, there is not even a vague prospect of a qualified majority in the Bundesrat in the medium term. Injecting or consuming rooms could have been legalised a long time ago - a large amount of empirical data from Switzerland speaks in favour of such facilities for hygienic and dignified - incidentally also life-saving consumption of drugs . Nevertheless, as of today, there is not a single appropriate venture on the part of the
law from any side. Also there is no majority for the de criminalisation of consumption-related crimes (i.e. possession, purchase, import, cultivation in small quantities) rather than the 'as if' of the new BtmG Paragraph31a.
Decriminalisation, heroin on prescription and injecting rooms would be the first important steps towards a rational drug policy. However, we prefer to stay with the policy of 'as if': showers rather than injections; free dinners instead of legal distribution of heroin; separate and separating day rooms and emergency shelters instead of drug acceptance; psychopathologising instead of human dignity ( Bossong, 1991 ) .
Of course, all that is achieved, as we all know, is:
- brimming penal institutions with a strong drug subculture;
- brutal, open drug scenes with an impure and far too expensive supply of stuff;
- buying and accompanying delinquencies that result in increased aggression in the public at large;
- drug prostitution with a high risk of AIDS and other hazards;
- poor information for the consumer resulting in substantial health and mortality hazards;
- involvement of occasional consumers and drug tasters in crime.
Yet no one could dispute that we are not doing a lot for the addicts and against addiction. In Hamburg alone, we spend around DM 100 000 000 annually on combating drugs and drug services; we increase established posts and facilities and implore consensus on drug policy in public. What we are lacking, with all this, are solid majorities for a policy on drugs that also deserves its name. Be this in Hamburg, Frankfurt, Munich, Zurich, New York or anywhere else, almost everywhere politics and the public are deviating from the actual question - how do we organise handling of drugs in a way that is legal, dignified and health-conscious, i.e. with as little risk as possible? Instead of this, we are standing by the policy of 'as if' which is good for a lot of things but not for getting rid of drug misery.
LEGALISATION
What are the other models for drug policy, namely those aiming at legalisation? How can they be systematically ordered? I will concentrate substantially on the systematic compilation of various legalisation
models in Europe, the USA and Australia described by Christine Bauer ( 1992 ).
The basic framework of every systematic arrangement of narcotics is amazingly simple; yet in our beliefs, which are one-sided and contracted, drugs are used as semi-luxury goods and medication. They carry health risks and provide personal experience. Whoever recognises the bipolarity, i.e. double function, inherent in all drugs has an appropriate basis for the debate on legalisation.
Bauer differentiates accordingly between two basic patterns in the legalisation issue: the medical model and the semi-luxury model. The medicinal model approaches our ideas more closely and, viewed from a political aspect, seems to have the greatest chances of realisation.
The medical model
Conceiving of drugs as medicine means their application within the scope of medical treatment. At present this is happening in a restricted, somewhat bureaucratic, way via the BtmV and the BtmVV
(regulations on the prescription of narcotics), e.g. with methadone (L-Polamidon), but not with heroin. The law proposed in Hamburg aims at allowing addicts to be treated with heroin as controlled treatment- analogous to methadone. As a further perspective, it would then be feasible to take heroin (and other narcotics) completely out of the law and make them accessible on prescription in pharmacies - or, going even further, as substances available without prescriptions. This model, the so called 'chemist model', would then correspond to what became practice in, for example, the 1920s in England- the consumer of heroin or morphin got the stuff from the pharmacist.
Such a model, allowing the free sale of heroin as a medicinal substance, raises considerable legal problems in the medicine branch as it is incapable of convincing anyone that, for example, Valium and countless other medicines are only available on prescription whereas heroin, morphin and such are not. Thus it seems more realistic that heroin is administered on prescription, not on a narcotics prescription, but on a normal one. This would also allow extensive access to normal routes: the addict goes to the doctor who pre scribes a reasonable dosage within the guidelines of therapy and the addict then goes to the pharmacist to get this. This corresponds approximately with what John Marks has been doing in Widnes, on Merseyside, for some years (Marks, 1992).
Apart from problems that can be solved, e.g. the risk of surreptitious acquisition of prescriptions, the main critics see this model as implying a monopoly on heroin for the medical sector. Bauer states two spheres of problems: the classic conception of the task of the medical profession is directed at healing and relieving pain, but not at satisfying luxury demands ( 1992). Thus one should, which would be the only effective way of preventing a black market, redefine medicinal-therapeutic tasks and also give doctors the function of creating subjectively pleasant, transcendental worlds. Such functions are similar to the tasks of shamans and magicians in primitive societies and, as all are aware, the medical profession does have historical roots; alternatively, and more realistically, the present functions of the medical profession are left as they are. In this case, the number of those entitled to receive these substances and the purpose of consumption are restricted to therapies that are deemed necessary. This then only accommodates the needs of the consumer and there will certainly be no possibility of getting rid of a black market. As the addict would only be able to use the heroin prescribed by the doctor, the occasional consumer, on the contrary, would remain without a supply and thus would continue to meet requirements on an illegal market.
These basic problems are neither made less critical nor solved by transferring the actual issue of heroin in doctors' practices or at pharmacists to a state level, i.e. to ambulant centres. Here, too, the condition for access, re-examined on a regular basis, remains the medical diagnosis and determination of grounds for administration by a doctor. In addition, the purpose of issuing drugs remains the relief from and cure of addiction.
As the medical model does not suffice for the 'drugs are luxury goods' aspect mentioned above, and as occasional users are penalised for their self-controlled consumption, this model becomes unconvincing. Bauer ( 1992 ) criticises it quite rightly:
It is not primarily the drugs which are controlled and/or selected but the consumers. To some extent, an expectancy of latent abstinence remains.
The luxury goods model
The alternative is the 'luxury goods model'. Drugs are supplied on the free market like any common foodstuff or luxury article:
Price, quality, availability . . . can be defined by the demand; consumer protection (consumer advice and the right to complain) could be given.
Bauer (1992)
The articles are subjected to a relevant amount of tax which could then, for example, be reserved for preventive measures and therapy. In consumer fields, stable, low-risk infrastructures would develop through self-help settings in which a correct, i.e. as low risk as possible, use of drugs ( i.e. correct dosages and application) would be learned, and support would be organised for those in need of help . The present drugs scenes would transform into cultural lifestyles.
However, this model also raises considerable problems. First, it can be reliably expected that most of those demanding drugs join up in self-help groups to learn how to handle drugs; in any case, this cannot be guaranteed. Second, the question of liability for the product arises: who is responsible for the risk of overdoses resulting from insufficient information on tolerance and application? Who takes responsibility for the risk of subsequent treatment becoming necessary as a result of dependency arising and/or secondary illness? Certainly, as Nancy Lord ( 1989) suggests, one could combat this by relevant declarations on the packaging, but how far must the manufacturer guarantee that these directions for use, which are to be created in a very different way - in the face of the toxicity of the substances to be injected - are sufficiently comprehensible and easy to handle for the broad masses?
More decisive is the question of how consistent the free sale of heroin is with the present legal restrictions on food products. According to this law and the law governing articles of everyday us:
. . . each product which is to be offered on the market . . . must previously be thoroughly tested and examined and subjected to stringent criteria which are often the result of many years of research. In particular, heroin for injections will find it difficult to pass these examinations and tests without complaint . . . (since these substances) may be comparatively free of risk for the informed long term consumer but conceal for inexperienced, first users substantial health hazards - right through to overdoses.
It can hardly be believed that there is, quite rightly, a public outcry on hazardous additives in all kinds of foodstuffs and on genetically engineered potatoes, but that, at the same time, no one would have any qualms about the free sale of injectable opiates. In short, I believe, a certain naive Romanticism slides along with such far-reaching models which hardly seems, in my opinion, to be socially acceptable. More realistic are the concepts of the luxury article model which at least envisage a number of restrictions. For example, restrictions that Stephen Mugford, Peter Cohen ( 1989) and Ethan Nadelmann (1988, 1989) suggest:
- prohibition of advertising;
- restrictions on individually sold amounts;
- time and place of sale;
- prohibition of consumption in public;
- high penalties for the use of drugs in traffic;
- extensive obligation to provide information for drug sellers;
- strict observance of regulations governing the protection of youth.
- Such restrictions are sensible, but do not solve three basic problems.
1. The differences in individual tolerance, i.e. compatibility with the particular dose. This cannot be reliably determined by a drug seller - medical specialists are required for this, but these have nothing to do with the consumption of luxury goods.
2. The more restrictions on the sale, the more probable is the continuation or new appearance of a black market. Evidence of this is shown by the example of the policy on alcohol in Sweden in the 1950s. Occasional users can live with such a system, but not the addicted, long-term consumers who even today are the most stable and most reliable customers for the illegal market.
3. The third problem is the market itself. This is oriented to expansion and profit but not to the protection of health. Industry, as the individual
sellers themselves, directs their interest to a turnover which is as high as possible - the idea of comprehensive consumer information, in the sense of a warning against too high a consumption, can hardly be integrated.
Bauer goes one step further. With what right, she asks, should something be asserted for narcotics when it is not possible for tobacco, alcohol and other substances that are a hazard to health. Vice versa, are we then not in need of similar comprehensive control and subjection to control for many legal substances and behavioural patterns? What about coffee, tea, sweets, excessive television consumption, gambling and much more? Our law on food products at least would have to be completely rewritten and furnished with a great deal of bureaucratic regulations. Is this truly realistic and desired as the price for legalisation ?
THE WAY OUT
In this context and continuing on her work, I have spoken a great deal to Christine Bauer on a way out of the problems described and raised in connection with the legalisation of drugs, and we have developed a discussion model for long-term perspectives which integrates both models - the luxury articles and the medication model.
Drugs are luxury articles; they should taste good, their consumption should be enjoyed and they should, as far as possible, not be hazardous to the health of the consumer. Drugs can also be medication. In this case, they do not always have to be enjoyed, but should contribute to restoring well-being, i.e. as a cure or as relief from pain. As luxury articles their availability should be made as easy as possible and they should be easy to handle. Medication, on the other hand, belongs to the more or less restrictive doctors' surgeries.
If we make access to narcotics easy, their handling easy and the health risks as low as possible, and we want to make the effect of enjoyment as good as possible, then we should make them freely available on the market, in non-injecting form and in a low percentage dilution, i.e. a generally non-toxic dosage. The consumer searching for the enjoyment must be able to consume the drug in a way that is as uncomplicated as possible and without elaborate directions for use. Restrictions are purely necessary for the purpose of protecting youth, i.e. by the introduction of age limitations, and for the purpose of traffic safety and safety at the workplace. This can be regulated and controlled quite well by law - see the example of alcohol. I see no other need for restrictions. However, the price for freedom means a prohibition of injectable and high percentage preparations; heroin itself would not remain prohibited, only the injectable and highly dosed preparations. This can be regulated by law without any problem - if necessary, through the introduction of a new appendix to the BtmG, in which these 'freely distributable but not available only on prescription' substances are categorised with their appropriate maximum active ingredient and quantity contents. There would then be free access for everyone to small or medium euphoria, depending on the quantity consumed orally or nasally, but not to the 'kick' - admittedly, desired by many. Presumably, it would only be a question of time before these new forms of application, which incidentally are far more widespread, for example, in the Netherlands than in Germany, would have asserted themselves in general. My theory is that most consumers would pursue a comparatively more harmless use of drugs without retaining any really mentionable damage - long-term consumption of heroin is far less hazardous on the whole than long term consumption of nicotine and alcohol.
Nevertheless, it is probable that some of the consumers would become addicted. Recent neurobiological studies show more and more that addiction has less to do with the substances consumed than with the body's own endorphin balance and the receptor functions in the human organism (Dole, 1988; Goldstein, 1991 ) . There are also indications that many of today's junkies are not primarily addicted to the stuff but to the way of life and the drugs scene (Harding, 1982; Schneider, 1992). In phases where there is no heroin they consume anything, prick around on their veins with the syringe and seem to get a certain degree of satisfaction from this. If their surroundings and their milieu change they find new interests and new friends and, then, leave their drug career - often without any therapeutic treatment. I admit that this area - thanks to our one sided and inflexible drug policies-has only been explored marginally, yet many empirical observations seem to tend in this direction.
However, we will have to do something for those people who have an endorphin balance that is so chaotic and deficient that they are addicted to opiates. What seems to me to be most feasible is to administer clinically examined opiates or opioids during medical treatment. The individual dosage in each case has to be adapted to the individual requirements of the , patient and it is ultimately a matter for the doctor to decide whether the drug is applied intravenously, orally or nasally. In other words, the administration oi high percentage opiates, also possibly intravenously, should be restricted to treatment in the doctor's surgery. It can be carried out here without any risks satisfy the 'hunger for drugs' and, in an uncomplicated way, contribute to the well-being of the addict and ultimately to the cause of the addiction.
Obviously there are some questions to be answered about such a model. It is assumed that a certain grey market will continue to exist - comparable to the medications and cigarette sector-which will supply bad stuff at expensive prices. In addition, it can be assumed that the costs of logistics will generally exceed the profits which can be expected so that an extensive black market is not worthwhile. It is also assumed that the consumption of 'soft' drugs will increase, but under no circumstances will there be drug problems comparable with the present situation. There is a lot to be said for the theory that those regularly consuming illegal drugs today belong to part of a social class showing a particularly high degree of risk regarding divergent lifestyles, deviation and such like . If drugs were legalised this group would certainly not expand, as it were, automatically.
Even if the drugs outlawed today are freed - in whatever form - crime, mugging, burglaries, prostitution, destitute people 'hanging around' in shopping precincts and underground tunnels, begging and provocation, stabbing, the use of firearms and organised crime to whatever extent, will continue to exist in our cities. We will still have addiction problems and the misery associated with this, but we will not be able to connect this solely with the trafficking and consumption of drugs; we lose a lot: the almost inexhaustible scope of an 'as if' drugs policy. The question about whether we want this should be on our daily agenda.
Dr Horst Bossong is the representative for drug issues of the Senate of the Free and Hanseatic City of Hamburg, Federal Republic of Germany. (Address for correspondence c/o Behorde fur Arbeit, Gesundheit und Soziales, Hamburger Street 47-2000, Hamburg 76, Germany. )
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