Don’t replace the drug laws with therapy laws

Last week, the entrepreneur Sir Richard Branson gave evidence to the Commons Home Affairs Committee on drug-law reform. The Virgin tycoon spoke as a representative of the Global Commission on Drug Policy and argued in favour of liberalising English drug laws. Branson said what most of us already know: the global war on drugs has failed. Drug supply and consumption have not varied significantly in the UK over recent years despite reams of new legislation. Branson argues that we should follow a model of decriminalisation established in other European countries, like Portugal, where it is no longer a criminal offence to possess or supply any type of drug.

Decriminalisation sounds liberal. But those who campaign around drug reform today are a strange bunch. Rather than argue that we should be allowed to do what we like with our own bodies, which would represent a liberal argument in favour of decriminalisation, today’s campaigners tacitly argue for greater state interference in the guise of healthcare and regulation. Their argument is not driven by respect for freedom and autonomy, but by an impulse to micro-manage drug-users’ lives.

The argument made by Branson and other contemporary reform champions is that drug use should be seen as an issue for ‘public health’ rather than the criminal law. Branson argued that this would free the police up to focus on organised crime and it would allow doctors to deal with those with drug problems. But would this actually mean more freedom for drug-users?

Not if we follow the European examples that Branson is so fond of. In Portugal, those caught with drugs are summonsed – so, forced – to appear in front of a ‘dissuasion committee’ made up of a psychiatrist, a social worker and an attorney. This pseudo-judicial body has powers to ban drug-users from going to certain places, from meeting certain people, and can even compel them to attend drug therapy. Compulsory therapy would not be alien to English law. Under the Crime and Disorder Act of 1998, courts are empowered to make a Treatment and Testing Order in the place of a custodial sentence. It obliges users to attend treatment centres for therapy and to take part in regular testing.

The idea that drug-users should be compelled by the state to give up drugs is not new. Such therapeutic alternatives to punishment borrow from the Drugs Courts of the United States, which have existed since the early 1980s. These specialised courts are not used to find out whether someone is guilty of a criminal offence but, in the words of the United States Justice Department, to ‘compel (defendants) to enter and remain in treatment’. Having signed a waiver indicating they are ‘guilty’ of drug use, defendants undergo a year-long programme of therapy, drug testing and community work, all led and supervised by the judge. Regular hearings are held in which the defendants feed back to the court on progress, often in emotionally charged weepy testimony from defendants and their families. Dress code is significantly relaxed and, as much as possible, everyone should be kept physically on the same level. One attendee described these hearings as a ‘cross between Alcoholics Anonymous and a Revivalist meeting’. This bizarre process culminates in a ‘graduation programme’ for those who complete the treatment at the end of the year.

All this will sound familiar to fans of Anthony Burgess. In his novel, A Clockwork Orange, a teenage hoodlum is exposed to an inhuman psychological treatment programme to correct his criminal character. The difference between these ‘liberalised’ drug punishments and the programme in Burgess’ novel is that, in the novel, the teenager was a violent serial rapist. The truly draconian heart of these proposed programmes is that people do not have to be guilty of anything whatsoever for the state to begin interfering in their lives. In this new ‘liberal’ approach, the court’s role is shifted from punishing criminal offences to correcting what the state sees as unconscionable behaviour – in this case, drug use. At least with traditional punishments, drug-users were treated like morally autonomous beings who had consciously decided to break the law. Today, they are treated as slaves to their addictions, who have to be cured through state-managed treatments and re-cast as proper members of society.

I think drugs are a waste of time. That is to say nothing for the many people for whom they are a genuinely destructive force. But if I were a drug user, I would want the state to have as little as possible to do with my decision to take them or not. For the sake of keeping drugs fun and comparatively state free for those who want to take them, we should reject the arguments for decriminalisation put forwards by Branson and Co and instead argue for a drug culture that respects peoples’ autonomy and judgement. That means no coppers interfering with our drug use but, more importantly, no ‘chilled out’ trainer-wearing judges either.

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.