10

OPIATE OVERDOSE

From 1995 a group of pharmaceutical companies began flooding the American market with prescription opioids – drugs synthetically derived from and/or similar to opiates. A large dependent population quickly arose. The regulators were powerless, or rather their efforts were stifled by the pharmaceutical origins of the drugs and the efforts of their big-capital manufacturers and distributors. Deaths by overdose ensued on a large scale. At the height of the epidemic, the American overdose toll rose to the equivalent of one Vietnam War per year. By the end of 2020 the crisis had killed at a minimum 300,000 people and as a best estimate 500,000.1

From a historical perspective, two observations jump out. First, the parallel with the late nineteenth-century spread of opiate addiction from iatrogenic causes is stunning. The opioid epidemic that has hit the United States was born of irresponsible prescribing married with regulatory capture by pharmaceutical companies, like its predecessor. The only difference was that it took place on a far grander scale. It is hard to escape the thought that, one hundred years later, they ought to have known better. A second salient feature has been the powerlessness of law enforcement. If one administration has distinguished itself in the whole affair, it has been the DEA. Yet faced as it was with a malfunctioning regulatory model and surging user demand, it could achieve little more than damage limitation. When the information on drugs is faulty and deep-seated factors favour increasing uptake, supply suppression is powerless. This has been a recurrent theme of this book.

The opioid epidemic has, more basically, made a mockery of the war on drugs. It is not just that historical precedents that ought to have been institutionalized were forgotten. The American government allowed its death toll from opioids to rise far above that of illicit drugs for years on end. While it did next to nothing at home, it continued to run anti-narcotics campaigns in Asia and Latin America and pretend that its drug problem was the work of a few traffickers, especially foreign ones. Astonishingly, even now the epidemic has yet to run its course. While it has morphed into an illegal opiate crisis, its pharmaceutical origins remain clear for all to see. Twenty years on, the official response to this entirely preventable tragedy has remained business as usual.

The crisis has helped make the argument for harm reduction. In 2017 the FDA commissioned an expert report to draw lessons from what had taken place and make proposals for the future. This contained no silver bullet, but several of its recommendations – such as initiatives to forestall overdose deaths – were harm-reduction staples.2 The same ideas have been catching on in the mainstream press and among state governments, some of which have been boosting their methadone or buprenorphine programmes.³ Separately, from 2014, the Department of Justice at last came out with measures to reduce drug-related incarceration, especially for low-level offenders.⁴

Of more direct impact on the drug-control order, the opioid epidemic has done subterranean damage to the position of its American protector. The United States’ incontinence at home has torpedoed its credibility abroad as the defender of a sacrosanct anti-narcotics system. The grand champion of supply suppression has feet of clay. This has made it all the more patent that opioids themselves have made the war on drugs impossible to win – if that were not already the case. Though the catastrophe, mostly confined to the USA, has been only one factor behind the inexorable rise in drug use in the first two decades of the twenty-first century, it has certainly ruled out any fall. The demand for drugs has skyrocketed, making the goal of a drug-free world recede into an ever more mythical future.

The villains of the piece have undoubtedly been the large pharmaceutical manufacturers and distributors, or a small set of them. At the heart of this set, notoriously, was one of them: Purdue Pharma. In 1962 Arthur Sackler, a psychiatrist who had once run a medical advertising company, joined with his brothers Mortimer and Raymond to acquire the minor pharmaceutical firm Purdue Frederick. The company, once known for selling tonics, at first added laxatives, an earwax remover and an antiseptic to its range. Then, in 1972, its British subsidiary developed a formula, known as Continus, for the slow release of a pill’s contents into the patient’s system. This extended-release technology was used for the improvement of several drugs: first an asthma drug, later morphine. MS Contin, as this last product was branded, was used in terminal care. It was a major commercial and medical success in its own right. The Sackler family rose to such social heights as to lend their name to galleries at the Smithsonian Institute, the New York Metropolitan Museum of Art and London’s Royal Academy, and to projects at the universities of Princeton, Harvard and Beijing. By the 1990s, though, the MS Contin patent was running out. The Sacklers – Arthur’s nephew Richard having now taken a leading role – subdivided Purdue Frederick, creating Purdue Pharma to focus on new pain treatments. In 1995 Purdue Pharma launched OxyContin, a delayed-release pill for oxycodone, a synthetic opiate with a potency between that of morphine and heroin.5

Purdue led the pack through its aggressive sales tactics. Other firms selling opioids on extended-release systems included Pfizer (morphine), Janssen (tapentadol), Endo (oxymorphone), Mallinckrodt (hydromorphone), Teva (oxycodone) and Insys (fentanyl). With the possible exception of Insys, Purdue was the most egregious in its marketing practices, and the others largely rode on the back of its promotional efforts.⁶ OxyContin’s unique selling proposition was that it was a powerful yet non-addictive analgesic. How anyone could still believe, at the turn of the twenty-first century, that an opiate with a strength superior to morphine’s was not addictive seems incredible. Yet Purdue took two lines of attack to support this claim.

The first relied on the extended-release mechanism. The OxyContin sales pitch was that other painkillers needed to be taken every three or four hours, whereas it acted continuously over twelve hours, without highs and lows. This reduced the drug’s abuse potential, Purdue reassured concerned doctors, helping avoid the risk of addiction. (The company’s own submissions to the FDA did not quite support this claim, showing a high after three hours and a rapid decline in narcotic concentration in the blood thereafter.⁷)

Purdue’s second tactic was to brandish academic statements purportedly proving that opiates were not addictive when administered medically. The first of these was a 1980 letter to the New England Journal of Medicine, in which two doctors stated that, among thousands of hospital patients treated with opioids, almost none had become addicted. The piece was not a research article, and it provided no data – such as whether the drugs had been administered for an operation, for example, or for how long after it. Purdue now promoted its drugs for the treatment of chronic pain. Its sales efforts ensured that the pills were used for long-term administration, not post-operative or terminal care relief. Long-term prescribing maximized the likelihood of addiction. The second supposed academic proof which Purdue deployed was an article published by another pair of medical researchers, Russell Portenoy and Kathleen Foley, in 1986 in the journal Pain. This examined the history of cancer patients who had been given opioid painkillers over several years. Only a few had become addicted and, from this result, the authors concluded that opioid therapy was safe. The sample size was small, however: a mere 38 patients. The journal had initially refused the article.8

What was lacking in terms of substance was made up for in high-volume sales efforts. Purdue spent several times the advertising budgets of its rivals. It employed hundreds of sales reps. When they ceased to suffice, it licensed the product to Abbott Laboratories, which was able to deploy a sales force of another three hundred people. Soon, nearly 1,000 reps were pushing OxyContin across the country. In 1995 the USA had possessed 35,000 pharmaceutical sales reps. A decade later, it counted 110,000, many of them selling opioids.⁹ Purdue targeted its message at the least knowledgeable: primary care doctors, whose sole pain-management training was at medical conferences, and dentists. A Purdue sales manager testified: ‘They told us to say things like it is “virtually” non-addicting. That’s what we were instructed to do . . . You’d tell the doctor there is a study, but you wouldn’t show it to him.’¹⁰ Doctors received OxyContin advertising paraphernalia including hats, mugs and CDS. Purdue held pain-management seminars and ran education programmes, flying doctors to resorts where they were invited to dinners, golf outings and spa treatments. At one stage it gave out OxyContin coupons, which patients could redeem for a one-time free prescription at a participating pharmacy.¹¹

As to Insys, still more dangerous than OxyContin was its pharmaceutical product Subsys, containing fentanyl – a substance multiple times more potent than heroin and highly likely to prove fatal in high doses.¹² Subsys was approved for cancer patients experiencing adverse reactions to other opioids. Yet the vast majority of doctors Insys targeted were not oncologists. Insys sales representatives meanwhile pushed medical practitioners to increase the doses they prescribed, a practice known as titration. In an internal motivational video, a salesperson performed a rap about the drug while a man dressed as a giant Subsys bottle danced around. ‘I love titration, yeah, it’s not a problem,’ they sang. ‘I got new patients and I got a lot of them.’ As the company’s head of sales admitted at a trial years later, he had ‘no morals, ethics [or] values’.13

Demand took off vertically. Sales of OxyContin rose from $48 million in 1996, the year after it received FDA approval, to over $1 billion in 2000.¹⁴ Problems emerged as early as the year 2000, with reports of widespread diversion, tampering and misuse. The FDA responded by asking Purdue to change the label and remove the claim that extended release reduced the risk of abuse.¹⁵ But it was easy for patients to get around extended release anyway. The label read: ‘Tablets are to be swallowed whole, and are not to be broken, chewed or crushed. Taking broken, chewed or crushed OxyContin tablets could lead to the rapid release and absorption of a potentially toxic dose of oxycodone.’¹⁶ For many, this was more a recipe than a warning. Doctors were routinely giving a full run of thirty pills to their patients: if the patient did not complete the run, others were often prepared to raid his or her toiletries cabinet.¹⁷ By 2003 OxyContin sales had almost doubled again. In 2009 they reached $3 billion, and opioid sales of all brands three times that level.¹⁸ Within a few more years, drugs containing hydrocodone would become the most prescribed medicine in the United States, and opioid painkillers, with more than 200 million scripts, the most prescribed class of drugs.¹⁹ Overdose fatalities climbed alongside revenues. From 5,000 in 1999, the death toll passed the 10,000 annual mark in 2003, then the 15,000 mark in 2007.²⁰

Beyond their aggressive sales methods, the opioid manufacturers were savvy at recuperating a nascent medical trend. Their marketing was egregious, but demand was not created from nowhere. Purdue, Insys and the others also benefited from and built on changes in attitudes to pain and its medication. Prescription opioids had originally been intended for postoperative or terminal cancer patients, as morphine continued to be used. The novelty was that they began to be made available for managing chronic pain. Though Purdue’s lever into the market was its extended-release invention, there had to be a perceived need for a market to exist in the first place.

In the 1980s the WHO had adopted the principle of a rising scale of painkillers in palliative care, in a guideline that became known as the WHO ladder. For a while this remained confined to postoperative or terminal care, but such ideas eventually drifted into an altogether different field. By the 1990s professional and patients’ organizations such the American Pain Society, the Veterans Association and the American Society for Pain Management Nursing had begun to argue that relieving pain was not just a duty for doctors treating patients in postoperative or terminal situations, but in general. Chronic pain was an illness begging for treatment, they asserted. Its symptoms could even be measured: pain became the ‘fifth vital sign’ (after the more mathematically calculable temperature, blood pressure, pulse and breathing rate). Sufferers from bad knees, back pain, arthritis, severe headaches, the aftermath of sporting accidents: they too must have access to the potent painkillers that had hitherto been reserved to extreme or exceptional situations. If pain could be measured, finally, so could the doctors’ performance in treating it – and with this rose the pressure to prescribe.21

The pharmaceutical companies had found a furrow and ploughed it deeper. They found advocates eager to speak at their conferences: people like Russell Portenoy, the author of the Pain article recuperated by Purdue, but also the editor of the Journal of Pain and Symptom Management and the author of textbooks on the topic. They subsidized pain societies and websites, such as Partners Against Pain and the American Pain Foundation, both founded in 1997. (The American Pain Foundation was disbanded in 2012 after it came under a Senate committee investigation.²²) They funded front groups such as the American Academy of Pain Medicine to educate doctors on chronicpain treatment and to run academic journals for publishing favourable reviews. They lobbied key practitioners and medical boards to endorse the concept of the fifth vital sign. They advertised directly to consumers – the United States being one of two countries, alongside New Zealand, where consumer advertising of prescription drugs is allowed – so that they and their associations might in turn pester doctors for the opioids to which they were told they had a right.²³

Not all doctors and pharmacists were innocent. Predictably, a few became aware of the unique financial opportunity that was offered them, and a few sufficed to turn over large volumes: they were the so-called dope doctors and pill mills. One Kentucky doctor prescribed more than 2 million pills to 4,000 patients over 101 days, seeing 133 patients per day in an office without electricity. Another was caught writing eight hundred prescriptions a month, the equivalent of one every ten minutes.24 Distributors were sometimes no better. In one West Virginian town whose population was 2,924, a pharmacy recorded ordering 258,000 pills in a single month.²⁵ Another town, with a population of 406, was showered with an average of 900,000 pills per year between 2005 and 2011.²⁶ Pain clinics opened everywhere to partake in the bonanza. In Florida their number grew from a few dozen to more than seven hundred by 2009.²⁷

Suggestions that Purdue, the other manufacturers or the distributors might be responsible for such excesses were met with ferocious denials, helped by their capture of the highest regulatory instances. Purdue consistently blamed its patients. In 2001 Michael Friedman, its executive vice president, testified before a congressional hearing convened to look into the alarming increase in opioid abuse. The marketing of OxyContin had been ‘conservative by any standard’, he maintained. ‘Virtually all of these reports involve people who are abusing the medication, not patients with legitimate medical needs.’²⁸

That Purdue had been able to convince the FDA to approve Oxy-Contin for chronic pain treatment on the thin evidence it provided was in itself surprising. That all the regulator demanded in 2001 was a change in labelling is instructive. The year after OxyContin’s release, the examiner who had approved the original application left the FDA. After a stint at another pharmaceutical company, he began working for Purdue.²⁹ By 2003 dire warnings were coming out of academic journals. That year Endo Pharmaceuticals sought FDA approval for Opana, an oxymorphone drug with a strength superior to that of OxyContin. The FDA rejected the application after several patients in the clinical trial had overdosed. Endo performed new trials, however, enrolling more people and weeding out those who showed signs of addiction or misuse early on. In 2006 it was able to present the data it wanted to the FDA, which approved the narcotic pill.³⁰ (The FDA would force Endo to withdraw Opana in 2017.³¹)

Opioid manufacturers went so far as to craft and impose their own prescribing norms. They lobbied such bodies as the Joint Commission for the Accreditation of Healthcare Organizations, responsible for certifying hospitals and clinics, to promote their solutions for the treatment of chronic pain. They pressed the Federation of State Medical Boards to develop guidelines for pain treatment along the same lines, proposing to pay for their distribution. Consistently, the industry either subverted its regulatory instances or bogged them down into paralysis. Over the decade to 2015, a Pain Care Forum drawing together the industry, patient-advocate organizations and medical interests spent close to three-quarters of a billion dollars pushing policies, writing legislation and funding elected officials to promote opioids and/or oppose curbs on prescribing. Within a few years, the norms Big Pharma had helped write were adopted in 35 states. Some states went further, with laws effectively giving doctors immunity from prosecution for prescribing opioids except in blatant criminal cases.32 In 2009 the FDA was planning a programme known as REMS, including mandatory opioid training for doctors and pharmacists and the enrolment of patients on higher-strength opioids on a national registry. The Pain Care Forum and the American Pain Foundation struck back, gathering petitions against the programme from what it described as ‘people with pain’. The measures were withdrawn, including compulsory training, and the programme was eviscerated.³³

The DEA struck back, as, increasingly, did prosecutors in the hardest-hit states. In 2005 the DEA appointed a new head to its Office of Diversion Control, a pharmacist and lawyer by training named Joe Rannazzisi. Rannazzisi began with a ‘distributor initiative’ to remind wholesalers of their obligations. When these warnings were ignored, he took legal action, beginning with the largest firms – the first time the DEA attacked a Fortune 500 company. In 2008 three companies were condemned – AmerisourceBergen, McKesson and Cardinal Health – though the fines were low.³⁴ Separately, in 2007, a West Virginian prosecutor indicted Purdue and got it to admit guilt to the felony charge of misbranding its products. Purdue agreed to pay a penalty of $600 million. Three of its executives pleaded guilty to misdemeanours: its president, its general counsel and its chief medical officer. The executives were fined a total of $34.5 million, placed on probation for three years and assigned four hundred hours of community service. There was, however, a hitch: as the result of a last-minute compromise, the conviction applied to Purdue Frederick, not Purdue Pharma. The manufacturer of OxyContin remained free to step up its sales efforts.³⁵

The distributors likewise managed to thwart the DEA’S increasingly intrusive interventions. Rannazzisi returned to the charge in 2011, successfully going after the Florida distribution centre of Cardinal Health. In total, the DEA would bring at least seventeen cases against thirteen distributors and one manufacturer, helping the government levy nearly $425 million in fines.36 But the industry was not lying supine. Lobbyists convinced Congress to adopt a bill named the Ensuring Patient Access and Effective Drug Enforcement Act. This required the DEA to warn pharmacies and distributors before moving to withdraw their licences, and it made it more difficult to freeze suspicious shipments. The DEA fought the bill, supported by the Attorney General. It passed, however, in spite of this opposition in 2015. Rannazzisi was pushed aside from his post, soon to retire from the organization after a thirty-year career. Immediate suspension orders on opioid shipments plummeted.³⁷

DEA and court actions did have an intimidating effect. In 2010 Purdue released a new version of the drug with an ‘abuse-deterrent formula’, harder to crush for obtaining an instant high. (The FDA would continue to approve new opioid formulations, not all of them containing ‘abuse-deterrent’ safeguards.³⁸) Deaths from prescription opioid overdoses, though they did not start falling, reached a plateau after 2011. The problem, however, was that by then a large population had become opiate-dependent. When prescription products became harder to obtain, users turned to heroin. A large share of the opioidconsuming population transitioned to illicit opiates. In one study 80 per cent of heroin users surveyed reported having begun with prescription opioids.³⁹

The Mexican cartels were more than ready to meet this new customer base halfway. Dealers drove into rural states where pain prescriptions had spiked. They moved in as the pill mills moved out. Heroin was cheaper than opioids anyway.⁴⁰ The death toll rose again. But an even more dire development awaited: the cartels learnt to make fentanyl, which is cheaper and safer to produce because it does not require growing poppy in fields, only procuring precursor chemicals. It is also easier to smuggle because it is far more concentrated.⁴¹ They began lacing heroin with fentanyl, in concentrations unknown to their customers. Fatalities from their illicit brethren overtook those from prescription opioids, climbing to 20,000 in 2015.⁴² In 1999, by comparison, opiates had been responsible for fewer than 2,000 fatalities by overdose.⁴³

Only massive, American-style class-action lawsuits have been able to bring the big corporations to heel. With some estimates placing the bill at $500 billion, the consequences promise to be epic.44 More settlements have recently been agreed involving manufacturers and distributors.⁴⁵ But nemesis has been approaching in the form of a consolidated lawsuit being judged in Ohio, which is bringing over 2,500 plaintiffs, including numerous counties, cities and individuals, against everyone involved: the manufacturers, the distributors, the insurers, their shareholders, their directors, people such as the Sacklers and those, like Portenoy, who evangelized for them.⁴⁶

The founders of the fentanyl maker Insys have been convicted of racketeering conspiracy, and face twenty years in prison.⁴⁷ Purdue Pharma declared bankruptcy in September 2019, reaching at the same time a settlement deal with 24 states and more than 2,000 cities, counties and other plaintiffs. The company agreed to pay what it claims is worth $12 billion, including cash and the assignment of future profits. The Sacklers also remain exposed to the consolidated lawsuit. They nevertheless appear to have been transferring billiondollar sums offshore. Alongside Purdue, they also own another company named Rhodes Pharma, for making generic opioids.⁴⁸

That it is the courts that have finally been bringing the companies and individuals responsible for this debacle to account will only make it more difficult for the lessons to be learned. Congress has not been mooting new legislation, the DEA has not been given new powers to clamp down, and the FDA has not been asked to de-list prescription opioids. The Centers for Disease Control and Prevention issued new, stricter prescribing guidelines in 2016.⁴⁹ Yet opioid prescribing for chronic pain has not ceased. New opioids are coming onto the market. Nor have the patient organizations nurtured by Big Pharma disappeared. On the contrary, they have been complaining that their supply is being curtailed.⁵⁰ The death count, meanwhile, has not been falling: as of 2019, it had merely flatlined at the very high level of several tens of thousands per year.⁵¹

In a last twist, the Sacklers have been seeking an international career for OxyContin through yet another one of their companies: Mundipharma. Active throughout the world, Mundipharma has been organizing seminars in Brazil, China and elsewhere to help doctors overcome ‘opiophobia’. It has hired ‘pain ambassadors’ to preach to doctors in Colombia, Brazil, South Korea, the Philippines and Singapore. In Spain Mundipharma has been using ‘naked celebrities’ for publicity, hiring ‘a string of topless actors, musicians and models [to tell] fellow Spaniards to stop dismissing aches and pains as a normal part of life’.52

It remains to be seen whether the chronic prescription of opioids will catch on in other parts of the world, though the crisis has affected Canada almost as badly as the United States.⁵³ The opioid epidemic has essentially been the result of regulatory failure. Countries with different and less commercialized medical systems therefore ought to be shielded from it.⁵⁴ Annual drug-related deaths in the EU remained, as of 2018, within the same ballpark as in the 1990s, at 8,300.⁵⁵ The American problem has nevertheless been making healthcare providers and regulators elsewhere nervous, particularly in Europe. The epidemic was partly the product of cultural change, namely the rising idea that all pain must be medicated away to the fullest extent, and cultural trends often cross the Atlantic eastward. As a social commentator has noted, the United States and Europe have both become ‘psycho-pharmacological societies’, creating fertile ground for the abuse of pain medications.⁵⁶

Popular wisdom nicknaming OxyContin ‘hillbilly heroin’ proved greater than the FDA’S.⁵⁷ Why green-light opioids if opiates are illicit? Anslinger, who had fought so hard to keep quasi-medical drug use out of the Single Convention, must have been turning in his grave. Conversely, it seems hard to believe that, if heroin itself had been legalized, it would not have come with better safeguards, beginning with restrictions on promotion and advertising. Fatalities from the opioid epidemic have exceeded the total number of deaths by overdose from heroin and cocaine combined between the passage of the Harrison Act and the FDA’S approval of OxyContin.⁵⁸ There is no better testament to the paradoxes of the war on drugs as it has been waged in the United States. A century of drug prohibition had been for nothing.

The opioid epidemic’s effects, like OxyContin itself, have worked on extended release. Alongside, another development has had a more immediate impact on drug control. A second body blow was dealt to the system, this one more benign in human terms. In the 2010s marijuana was legalized in eleven American states plus the District of Columbia – though it has remained prohibited at the federal level – and in two countries: Canada and Uruguay.

Marijuana legalization has followed different routes in these different jurisdictions. In Canada it began with medical cannabis – a step contravening at least in spirit the international conventions, which schedule cannabis among the drugs that have no medical utility – but full legalization came suddenly and at the initiative of the government. In the American states it was also preceded by the authorization of medical use, but full legalization was the result of popular ballots. Uruguay had long tolerated drug possession. Its legalization of cannabis nevertheless came suddenly, and it was government-led. In both the United States and Canada, meanwhile, reform has followed from shifts in public perception. Even in Canada, public opinion, according to polls, had long been ready for legalization. In Uruguay, however, opinion only shifted in marijuana’s favour after the passage of the new law: opinions on intoxicants, unsurprisingly, are also shaped by their legal status.

The late 1960s and the 1970s had seen an early movement in favour of legalizing marijuana in a multiplicity of geographies. The governments of Australia, the UK, Canada, the Netherlands and the United States all convened public committees within ten years of each other. Their reports tended to dispel received wisdom on the terrible dangers of cannabis, though they felt compelled to warn about the need for more research.59 ‘We suspect that illegality may play an important role in problem definition where drugs are concerned,’ the American report drily noted.⁶⁰ In Canada, the Le Dain Commission found the prohibitionist regime ‘grossly excessive’. It recommended a number of reforms including the decriminalization of marijuana possession, though nothing came of it.⁶¹

The American commission had also opined: ‘The Commission feels that the criminalization of possession of marihuana for personal use is socially self-defeating.’⁶² President Nixon, who had just declared war on drugs, was not prepared to oblige, yet things began to change after his departure.⁶³ Such organizations as the American Bar Association, the American Medical Association and the American Academy of Pediatrics all endorsed decriminalization. Spearheading liberalization efforts was the National Organization for the Reform of Marijuana Laws (NORML), founded in 1970 by a young lawyer named Keith Stroup. ‘We do not advocate the use of marijuana,’ Stroup told a reporter, ‘but we know of no medical, legal, or moral justification for sending those to jail who do use it.’⁶⁴ Destined to return as a powerful force in the twenty-first century, NORML enjoyed its first moment in the sun under Jimmy Carter. Stroup became friendly with Peter Bourne, Carter’s drug-policy expert, and the association gained access on intimate terms to the White House.65 In 1977 Carter himself publicly expressed support for federal measures.⁶⁶ By 1978 eleven states had decriminalized marijuana possession.⁶⁷

Reform was stopped in its tracks by a scandal involving Bourne, who was forced to resign after it was discovered he had written an illegal prescription for Quaaludes, a regulated sedative, for his attractive young secretary.⁶⁸ More basically, the public was not ready for liberalization. Surveys from the period suggested that a majority might be persuaded to decriminalize possession, but three-quarters of Americans disagreed that ‘you can use marijuana without ever becoming addicted to it’ and almost as many believed that smoking it would make people want to try heroin.⁶⁹ A countervailing force to NORML soon emerged in the form of concerned parents’ associations. The backlash began with a collective founded in Atlanta in 1976 by Marsha Schuchard, aka Manatt, a mother of three living in the aptly named suburb of Druid Hills. Schuchard agitated and lobbied against liberalization and for toughening the rules such as by banning the sale of smoking paraphernalia. Perhaps her greatest coup was to enlist the backing of Robert DuPont, the head of the NIDA and a methadone maintenance pioneer. In 1979 she founded PRIDE (Parents Resource Institute for Drug Education), which had its own newsletter.⁷⁰ More parental associations formed – by 1980 there were three hundred of them nationwide – to raise the battle cries of ‘D.A.R.E.’ (Drug Abuse Resistance Education), ‘Drug-Free’ and, after Ronald Reagan’s election, ‘Just Say No.’⁷¹ Meanwhile several of the state decriminalization laws had been reversed – South Dakota’s, for example, as early as 1977.⁷²

Liberalization would only come slowly, beginning with the legalization of marijuana for medical purposes, which itself has involved two distinct steps: the approval of cannabis extracts, such as THC, for medical use, and the authorization of marijuana itself, the leaf, for use in treatment. In 1980, for example, the FDA approved oral THC for prescription to patients undergoing chemotherapy.⁷³ The authorization of plant-based preparations would take longer. Likewise, in Europe today, most countries have approved some or all of the existing, cannabis-based pharmaceutical products, but only fourteen allow the medical use of marijuana preparations themselves, several on the basis of exceptional or compassionate motives only and under special access schemes.⁷⁴

Sensing a weak link, the legalizers of the 1990s decided to press for the passage of laws authorizing medical marijuana in selected American states, beginning with California. The leaf had been identified for use in five main therapeutic areas: appetite stimulation. analgesia, controlling nausea, mastering neurologic disorders and treating glaucoma. A particular application was pain or nausea relief among cancer sufferers, including patients undergoing chemotherapy.75 Individuals who had run out of other options were demanding access.

In 1995 a group of long-time local activists placed on California’s citizens’ ballot a law authorizing patients to cultivate or have a caregiver cultivate cannabis for their medical use, an initiative known as ‘Proposition 215’. Their cause gained a fighting chance when they accepted the support of Ethan Nadelmann. Nadelmann brought in both Bill Zimmerman, a canny political consultant with a ballot track record, and donors for a campaign, beginning with the hedge-fund billionaire George Soros. Proposition 215 passed in 1996 with 56 per cent of the vote.⁷⁶ The Drug Policy Alliance (DPA, the Trebach– Nadelmann foundation) and an organization started by former NORML employees known as the Marijuana Policy Project (MPP) then decided to build on this success to push for citizens’ ballots in more states. Polls showing a minimum of 55 per cent support made a state eligible for targeting. The donors forked out more money for campaigns. Within four years, they won another six states: Alaska, Oregon and Washington in 1998, Maine in 1999, and Nevada and Colorado in 2000. By 2013 medical-cannabis laws had passed in twelve more states, a few by votes in the legislature but most by popular ballot.⁷⁷

Medical marijuana likewise acted as a Trojan horse in Canada, but through a different route. Hopes for decriminalization had emerged in 1992 under the Conservatives and in 1993 under the Liberals. A new law came into effect in 1996 allowing possession under 30 grams (1 oz) of marijuana or 1 gram of hashish to be dealt with by summary proceedings. The government claimed this amounted to depenalization, even if possession remained on the books as a criminal offence. Meanwhile a 1995 survey showed that 69 per cent were in favour of either a non-criminal fine or no legal restraints on marijuana possession at all.⁷⁸

It was through the courts, however, that tangible change arrived. In several cases running from the year 2000, Canadian judges began ruling that denial of access to medical cannabis was a violation of rights. This set a precedent not just for marijuana possession for medical use, but in general. The government reacted by allowing medical marijuana, in 2002, under a regime run by Health Canada, the country’s department of health. (The authority itself grew the cannabis, though it privatized production after 2012.) This, however, only consolidated the drug’s progress. The production and sale of marijuana and its derivates for medical purposes would form the bedrock of a future Canadian industry that has expanded into recreational cannabis and become a major international actor. The courts, meanwhile, continued to throw out possession charges.79

For a decade, prospects fluctuated with electoral politics. The Liberals introduced a liberalization bill in 2003 under Jean Chrétien, but it was delayed several times and never passed. A return to power by the Conservatives left the ambiguous status quo in place and even threatened a return to stricter terms, as the government promised a new anti-drug strategy based on tougher criminal penalties. Yet conditions turned favourable again as Justin Trudeau, prime minister from 2015, appointed a panel known as the Task Force on Cannabis Legalization and Regulation. Headed by Anne McLellan, a former Liberal cabinet member who had held both the health and justice portfolios, this comprised representatives from various stakeholder groups, including health research, law, policing and social work. Trudeau had made an electoral promise anyway, and opinion polls showed that Canadians strongly favoured legalization. The panel confirmed that it recommended the reform, and cannabis, medical and recreational, became legal in Canada on 17 October 2018.⁸⁰

In the United States, opinion was likewise primed by the twenty-first century’s second decade. In 2016 lifetime marijuana use among the American adult population reached 47 per cent: the number of people who had tried the drug at least once in their lives approached the majority mark.⁸¹ According to a 2013 poll 77 per cent of Americans believed that cannabis could legitimately be used as a medicine, and a majority, 52 per cent, supported legalization for recreational use.⁸² The reform campaigners pounced, though their first attempt would draw a blank.

In 2010 Richard Lee, a long-time activist who owned a cannabis dispensary in Oakland and ran an ‘Oaksterdam University’, launched a proposal known as ‘Proposition 19’ to legalize recreational marijuana in California. Lee invested $1.5 million of his own earnings to draft the proposition and gather the required 400,000+ signatures to put it on the ballot. He garnered support from libertarian public speakers and from California’s American Civil Rights Union (ACLU). The more politically savvy organizations that were NORML, the MPP and the DPA, however, withheld their active support, mistrusting the electoral dynamics – though some of their financial backers decided to contribute at the last minute. It may not have helped that one month before the vote, Governor Arnold Schwarzenegger reduced the punishment for the possession of an ounce or less to an infraction with a $100 fine. The initiative failed.83

Grassroots campaigners were luckier in Washington and Colorado, where the fight moved next. In Washington state, the lawyer and ACLU director Alison Holcomb led the campaign. In Colorado, Mason Tvert took the lead, a long-time activist with a folksy style who would go on to join the MPP. Holcomb pursued the middle-of-the-road voter, addressing upfront issues such as restrictions on youth and home cultivation. Tvert, who faced a well-funded opposition in the shape of the Save Our Society from Drugs lobby group, ran a combative billboard campaign.⁸⁴ When Governor John Hickenlooper added his opposition, Tvert attacked him for having made a fortune on alcohol – in this case the brewing business. The DPA and MPP meanwhile supported the campaigns, making essential financial contributions. In Colorado, Republican and libertarian sympathizers also weighed in, helping sway conservative voters. The vote was won with 56 per cent in Washington and 55 per cent in Colorado. Both initiatives became law in December 2012.⁸⁵

The floodgates had opened. In the aftermath, nine states introduced decriminalization bills and another nine full legalization bills.⁸⁶ In November 2014 Oregon and Alaska became the third and fourth states to legalize marijuana completely. They were followed by California, Maine, Massachusetts and Nevada in 2016.⁸⁷ Illinois, Michigan and Vermont would soon join them.⁸⁸ In 2016 a poll found that 60 per cent of Americans supported marijuana legalization.⁸⁹ Prohibition, of course, remains in full force at the federal level. Yet in 2017 another poll found that 71 per cent of Americans opposed federal intervention in legalizing states.⁹⁰ Marijuana has, moreover, become legal in the capital itself: Washington, DC, legalized the drug in 2014, allowing home cultivation of up to six plants and possession of up to 2 ounces (60 grams). The law, actively supported by Keith Stroup, who was still serving as legal counsel for NORML, passed by the largest majority in the country: 65 per cent.91

As to Uruguay, it had decriminalized the possession of all the main drugs in 1974 – although what qualified as possession was left to the judge’s discretion, so that some incarcerations for use continued. As in the United States, a popular movement eventually coalesced in the early twenty-first century in favour of the full legalization of cannabis. Formed in 2006, the Movement for Cannabis Legalization was joined by young, left-wing politicians and more discreetly by clandestine cannabis growers and users. The Federation of University Students, LGBT organizations and the National Union of Workers as well as various academics, lawyers, doctors and artists became fellow travellers. This informal coalition gained political attention when it obtained an audience with the president in 2007, and again during the campaign of 2009. Support remained too narrow, however, to force a change in legislation.⁹²

In 2011 a 63-year-old woman was imprisoned after cannabis plants had been found in her house: her case gathered media attention and convinced a cross-party group of deputies to get together and draft legislation. The disastrous violence hitting Latin America as a result of the war on drugs, though it remained less stark in Uruguay itself, acted as a backdrop. At that stage, polls showed that 66 per cent opposed marijuana legalization, with only 24 per cent in favour. The parliamentarians forged ahead regardless, motivated by public-health goals and the desire to put an end to black-market activity and the associated violence. In December 2013 the law made it onto the statute books. Cannabis had become legal in Uruguay. Remarkably, public opinion turned around as the reform cleared the chamber of deputies: 78 per cent declared it was preferable, after all, to the old status quo.⁹³

Legalization means the full regularization of cultivation, retail and use, medical and recreational, not just decriminalization. Differing sets of regulations have nevertheless been instituted in these three geographies. All keep track of production, potency and distribution, but in different ways.

Uruguay set up an Institute for the Regulation and Control of Cannabis to authorize and monitor crops, harvesting and distribution. Private growers remit the marijuana, which can only be sold in pharmacies. The institute keeps close tabs on potency, namely THC and CBD concentrations. Buyers must be eighteen or older, and they must register. The law also allows sales through regulated private clubs, and home cultivation of up to six plants and an annual limit of 480 grams (160 oz). As of February 2018, there were sixteen pharmacies dispensing cannabis for non-medical use in the country, with 34,696 people registered to buy from them. By February 2019, 115 cannabis clubs had been registered with 3,406 members, and 6,959 people had obtained a licence for domestic cultivation.94

Canada has a more complex, two-tier system reflecting its federal constitution. The federal government is responsible for setting norms for growers, including the types of cannabis products to be made available for sale. It also sets rules on promotional activity, packaging and labelling, notably to ensure that products are not targeted at underage users. Distribution and sale are governed by provincial or territorial authorities. Systems vary. In some provinces, the entire retail chain is state-controlled; in others, the province controls wholesale distribution but not retail; and in two provinces the system is fully private. Some provinces have placed caps on the number of licensed stores. Some, but not all, also allow home cultivation, generally up to a limit of four plants, and some have set the minimum age higher than the federal level of eighteen years old. Each province has its own excise stamps. Health Canada, finally, provides added oversight: it is responsible for regulating the medical-cannabis industry, but because the large growers are active in both the medical and recreational segments, in practice it also has power over what is sold to the non-medical user.⁹⁵

The system is yet more varied in the United States, where reforming states have each legalized separately and marijuana remains banned federally. Oversight has sometimes been awarded to liquor boards, sometimes to newly established cannabis regulatory bodies, and in one state to the department of agriculture. Regulations typically match those in place for alcohol, with marijuana forbidden to people under 21. Some states allow counties and municipalities to continue banning retail sales locally. Enterprises must be licensed to produce, market or sell cannabis products. With the exception of Washington, DC, possession remains everywhere limited to 1 ounce (30 grams). The legalizing states likewise permit home cultivation, typically up to a six-plant limit, and raise varying rates of excise.⁹⁶ Some states, finally, have expunged the criminal records of former cannabis offenders – a measure also seen as a matter of racial justice – notably California and Massachusetts.97 Both producers and retailers meanwhile continue to labour under federal restrictions. Cannabis cannot cross state lines, for example, even between legalizing states. The greatest restriction concerns banking and payment facilities: because banking is federally regulated, cannabis-sector participants have no access. Dispensaries have had to hoard cash or find other activities to front for their marijuana sales.⁹⁸

While legalization in the American states remains at threat from federal intervention, a countervailing factor may bolster it for the long term: the arrival of big capital. A number of cannabis companies, originally set up for the medical market but most of them having branched out into the recreational segment, have become large enough to obtain stock-exchange quotations: Canopy Growth, Aurora Cannabis, Aphria, Tilray, Cronos Group, Curaleaf, Trulieve . . . All are Canadian and primarily listed in Toronto, but some are also traded on NYSE or Nasdaq. Many have been hotly tipped stocks by Forbes and the ticker-tape boffins.⁹⁹ Canopy had, at the time of writing, a multi-billion-dollar value, and Aurora and Aphria had market capitalizations above U.S.$1 billion.

The CEO of Aurora Cannabis writes: ‘We’re in the early days of what we know is going to be a massive global industry. In fiscal 2019, our Sky Class facilities are now established as the industry standard for efficiency and scale: we are leaders in cultivation . . . We’ve now grown into 25 markets, through targeted acquisitions and strategic partnerships, and we will continue to expand globally.’¹⁰⁰ Pictures of the company’s ‘state-of-the-art’ production facility show huge greenhouses with automated pulleys lifting bushes and workers in laboratory gowns examining the leaves.¹⁰¹ Alongside its medical products, Aurora owns a number of ‘consumer’ brands: Aurora, San Rafael, Whistler, AltaVie and Woodstock. Its medical and consumer turnover remain about equally split.¹⁰² Aurora describes its AltaVie brand as follows: ‘Superior cannabis products designed for the premium customer segment. AltaVie users are curious and discerning about life and searching for physical, mental and emotional enrichment.’¹⁰³ Fifty years on, perhaps Timothy Leary’s preaching has not fallen on deaf ears after all.

The decriminalization of marijuana possession has meanwhile been catching on around the world. In 2015 Jamaica passed legislation reducing the possession of small quantities to a petty offence.¹⁰⁴ In 2018 the South African Constitutional Court ruled that the consumption of marijuana in private homes was not a punishable act – an all the more significant development given that South Africa has been, historically, a major consumer nation.105 Though a New Zealand referendum legalizing cannabis was narrowly defeated in October 2020, decriminalization remains on the agenda.¹⁰⁶

Medical marijuana has been making its own progress in Europe. A number of THC or CBD pharmaceutical products have gained approval by various national authorities: the most widely validated has been Sativex, a spray for treating muscle spasticity in multiple sclerosis. A few countries have also allowed the prescription of herbal cannabis for alleviating the symptoms of medical conditions ranging from multiple sclerosis, HIV and cancer to Tourette’s syndrome. The Netherlands took the lead in 2003, but it has been followed by a large group of countries, including the UK, Denmark, Germany, Italy, Portugal and Switzerland.¹⁰⁷ Denmark, Germany and Portugal have even allowed domestic cultivation for supplying the medical market – Aurora Cannabis runs production facilities in all three of these countries, and Aphria is preparing to do so in Germany.¹⁰⁸

The authorization of medical cannabis having been the first step to full legalization in Canada and the American states, one might expect recreational marijuana eventually to make it on the agenda in some European countries at least. This is where harm reduction may act as a brake on legalization, however. In many European countries, marijuana possession has been decriminalized in practice, potentially robbing any campaigns for legalization of their momentum.

European policies on recreational marijuana have been sitting on a broad spectrum, from the de jure decriminalization of possession in Portugal, Spain and the Czech Republic to full prohibition in Sweden or France, as well as intermediate de facto decriminalization in countries such as the Netherlands, Belgium, Luxembourg, Switzerland and Germany.¹⁰⁹ In 1994 the German Federal Constitutional Court, in a key ruling, cleared the way for the decriminalization of cannabis use. The possession of cannabis was thereafter depenalized with different thresholds in various Länder.¹¹⁰ Several German cities have proposed to allow cannabis dispensaries within their precincts, though this has gone no further than a pilot project in Frankfurt. In the Netherlands, where cannabis use has long been tolerated, multiple municipalities have asked for a relaxation of measures against cultivation; while the government has denied their requests, judges have been known to refuse to condemn growers.111 Finally, in Spain, followed by Belgium, the UK, France and Slovenia, grassroots associations labelled ‘cannabis social clubs’ have emerged and started to engage in collective cultivation for private use. As of 2014, for example, there were seventy such clubs in Britain. In Spain, where possession is legal, the clubs only break the law by growing the plant. Elsewhere, they operate completely illegally (though their members may not always be aware of it), but they have rarely been raided.¹¹²

A second factor militating against further legalizations has been pushback from the UN-led drug-control institutions. The INCB already considers that medical marijuana violates the drug treaties. The principle is at best ambiguous: the conventions allow cannabis to be used for medical research, but not treatment. But in any case, medical cannabis laws have violated articles 23 and 28 of the Single Convention, which stipulate that, if a government allows the cultivation of cannabis, it must establish an exclusive, national purchasing agency.¹¹³ This is not how medical cannabis markets have been established in most jurisdictions. Concerning the decriminalization of possession, the conventions leave the loophole that enforcing criminal penalties remains subject to each signatory’s constitutional principles.¹¹⁴ Legalizing entities such as the American states, however, can hardly claim recourse to that exception while marijuana remains prohibited at the federal level. Even policies of practical toleration have been viewed dimly by the UN organs. In 2006 UNODC reiterated that, under the conventions, cannabis must be controlled with the same severity as heroin and cocaine, complaining that the toleration of cannabis led to ‘confusion’ in the global community.¹¹⁵ As to Canada and Uruguay, of course, they are simply in open breach of the treaties.

On 12 February 2019 a New York jury convicted Joaquín Guzmán Loera, aka El Chapo, on multiple charges of drug trafficking and money laundering.¹¹⁶ The cartel leader, once Mexico’s most powerful, faced life in prison. He might have twice escaped from Mexican jails, but there was no prospect of freedom this time. El Chapo boasted a longer career and had trafficked more narcotics than the once legendary Pablo Escobar. He was responsible for cartel wars, assassinations, rapes, mutilations and the wholesale corruption of his country’s law enforcement and political classes. His victims, direct and indirect, numbered in the thousands. His conviction was a red-letter day for justice.

Anyone who thought it would make any difference to the volume of drugs trafficked into the United States or elsewhere had not been paying attention. El Chapo’s Sinaloa cartel, after having defeated its Tijuana enemies, had briefly established a claim to dominance over Mexico’s drug traffic. After that, it had gone to war with the Gulf cartel, and then with Los Zetas. At the same time as it was diversifying into methamphetamine and fentanyl, it had spread its tentacles deep into South America but also into Europe, where it sold drugs, and into Asia, where it purchased precursor chemicals. While El Chapo sat in court, the business had continued to boom, for Sinaloa as for the others. Worldwide, as confirmed by seizure data, cocaine, fentanyl and meth trafficking had all been expanding. Behind one kingpin, besides, stood another: Ismael ‘El Mayo’ Zambada, the man who had held the fort while Guzmán had been imprisoned the first time, and possibly the real brains behind the operation.117

As a corollary, violence had likewise spiralled upwards. Mexico had degenerated, in the opening decades of the twenty-first century, into dark and disturbing practices as Los Zetas broke up into yet another splinter group, La Familia, and as new cartels arose to defy Sinaloa, such as Tijuana’s Jalisco. Instances of cartel torture have included starvation, beatings, sexual abuse, knee-capping and wounding with knives or industrial tools in various parts of the body prior to murder, as well as the use of acid, fire, electricity, water, excrement and animals. Cartel violence has produced dismembered bodies and bodies partially dissolved in vats of acid. Beheadings have become common. In 2009 the retired general Mauro Enrique Tello Quiñonez was kidnapped along with his aide and driver, then killed. He had just been hired to set up a hundred-man anti-drug unit. His body had burns on his skin, and his hands and wrists were broken. An autopsy revealed he had suffered broken knees and been shot eleven times.¹¹⁸

Felipe Calderón, president of Mexico between 2006 and 2012, attempted to bring down the cartels through military means. The offensive and the associated violence, whether on officials, between cartels or on bystanders, left an estimated 60,000 dead and 20,000 missing.¹¹⁹ Nor has the escalating brutality been confined to Mexico or even Latin America. In 2001, for example, when he took office, the Thai prime minister Thaksin Shinawatra vowed to eradicate drug trafficking. In 2003 he proclaimed a nationwide ‘war on drugs’. Human Rights Watch has calculated: ‘The government crackdown has resulted in the unexplained killing of more than 2,000 persons, the arbitrary arrest or blacklisting of several thousand more, and the endorsement of extreme violence by government officials at the highest levels.’120

Neither of these so-called wars produced any effect on the drug supply. Nor were they ever likely to. In 2016 UNODC estimated that the world’s total area under poppy cultivation was 305,000 hectares. This is half the size of the state of Delaware, or about the size of Luxembourg. Global coca acreage was even smaller.¹²¹ Poppy and coca fields have always been able to find somewhere to hide. Traffickers, likewise, have never lacked a supply of poor or desperate youths to recruit. Even safeguards against money laundering are being circumvented: traffickers have become adept at using Bitcoin and the ‘darknet’.¹²²

Even if poppy and coca plants could somehow all be fumigated or uprooted, besides, the cartels have already discovered other avenues for expansion. Fentanyl, heroin’s deadlier cousin, has been one of them. Another has been methamphetamine, commonly known as yaba in Southeast Asia. In 2015 methamphetamine became the most widely used drug in China, Japan, the Philippines and Singapore, and the region turned into the main recipient of methamphetamine worldwide.¹²³ But Southeast Asia has also become an important centre for meth production in its own right.

In 2018 the Australian police led an operation combining twenty agencies from Asia, North America and Europe against a man named Tse Chi Lop. Tse, a Canadian national born in China, has like many of the drug lords of the past spent a stint in prison: in 1998 he was sent to jail for a few years by a New York court. Tse was a member of a heroin-smuggling ring from the Golden Triangle, and this is where he disappeared again thereafter. He soon became the kingpin or one of the barons of an organization, nicknamed Sam Gor by police forces, spanning East Asia, Australia and New Zealand and specializing in crystal meth.

UNODC has estimated Sam Gor’s meth revenues at $8 billion per year. It is believed to be handling the drug in tons, exporting it to at least a dozen countries. Anti-narcotics officials have described the Sam Gor syndicate as ‘enormously wealthy, disciplined and sophisticated – in many ways more sophisticated than any Latin American cartel’.¹²⁴ (Like Latin American kingpins, too, Tse is rumoured to fly family on private jets to extravagant parties, bet big on horses and maintain a team of bodyguards, this time consisting of Thai kickboxers.) Perhaps the most notable, though, is the location of Sam Gor’s production facilities. In late 2016 a young Taiwanese man was caught at Rangoon airport carrying bags of white powder. His captured phone pointed towards a local address where police found over a ton of crystal meth. Further investigations led into the Shan state, Khun Sa’s old home base. A reporter has described the scene:

Along the road to the village of Loikan in Shan State . . . high-end suvs thunder past trucks carrying building materials and workers.

The Kaung Kha militia’s immaculate and expansive new headquarters sits on a plateau nestled between the steep green hills of the jagged Loi Sam Sip range. About six kilometers away, near Loikan village, was a sprawling drug facility carved out of thick forest. Police and locals say the complex churned out vast quantities of crystal meth, heroin, ketamine and yaba tablets – a cheaper form of meth that is mixed with caffeine. When it was raided in early 2018, security forces seized more than 200,000 liters of precursor chemicals, as well as 10,000 kg of caffeine and 73,550 kg of sodium hydroxide – all substances used in drug production.125

The Sam Gor syndicate has a lineage that can be traced back to the Opium Wars, via Chinese opium networks, the British colonial regime in Burma, the flight of the Kuomintang generals into the region and Khun Sa’s Shan insurgency. Drug trafficking cultures and networks possess a resilience that can span multiple generations. Their durability and their adaptability, as the switch from opiates to meth manufacturing shows, defy the imagination. Perhaps Tse will be caught, but will it have any impact?

The mounting violence, its futility, the inexhaustible permanence of trafficking networks: all this increasingly made the case for policy relaxation. In practice, in spite of the continuing rise in trafficking, incarceration flattened out, in the first two decades of the twenty-first century, in a number of national systems. In the United States, drug-offender prison populations stopped climbing. America had been incarcerating a dramatically growing number of people for drug offences in the three previous decades: from 38,680 in 1972 to 480,519 in 2002. In 1997, the last year for which such data were available, 172,797 people were sitting in prison on possession offenses alone.126 Based on federal and state prison data, these numbers plateaued thereafter and even began to decline: from 337,872 offenders on drug charges in 2003 to 268,900 in 2017.¹²⁷

Drug-related incarceration rates were likewise stable in most European countries: the EU total was 57,048 in 2002 and 62,601 in 2019.¹²⁸ Incarcerations have fallen in Germany, the Netherlands, Spain and Sweden, though not in the UK, France or Italy. How many prison inmates were purging possession charges has not been tallied, but sentencing in selected countries provides a glimpse. At the period’s approximate midpoint, the Netherlands boasted the highest likelihood of incarceration for a possession arrest: 20 per cent. (The absence of marijuana possession charges artificially drives this rate up, compared to other countries.) France stood at 12 per cent, Germany at 7 per cent and Britain around 4 per cent. Scandinavian countries exhibited rates in the low single digits, with Finland at zero.¹²⁹

Many countries in Asia have kept a zero-tolerance approach to drugs, for example Indonesia, the Philippines and Singapore. Indonesian drug laws prescribe the death penalty for narcotics trafficking. In the Philippines, the possession of 5 grams of marijuana is an offence punishable with twelve years in jail.¹³⁰ In China, nevertheless, though drug use remains unlawful, possession was downgraded in 2008 from a criminal offence to a contravention punishable by administrative sanction. Though the new rehabilitation centres to which offenders have been assigned often resemble custodial environments, the law also envisages community-based rehabilitation.¹³¹

The UN’S decade for achieving a drug-free world was coming to a close in 2008. As the deadline approached, UNODC wrote: ‘Drugs are everywhere, say alarmed parents. The drug problem is out of control, cries the media. Legalize drugs to reduce crime, say some commentators. Such exasperation is understandable in the many communities where illicit drugs cause crime, illness, violence and death. Yet, worldwide statistical evidence points to a different reality: drug control is working and the world drug problem is being contained.’¹³² The claim for containment was twofold, based first on a supposed flattening in trafficking trends in the last quarter-century, and second on lower rates of opiate addiction compared to a century before. In reality, any recent flattening was hard to see, based on UNODC’S own statistics: it relied entirely on marijuana, while the evidence was that trafficking in heroin and cocaine had increased twenty- to fiftyfold in that time span.133 The trend would continue upwards in the years to come. As to century-long comparisons of opiate-abuse rates – themselves based on the dubious assumption that smoking opium is the same as injecting heroin – they would soon be vitiated by the opioid epidemic.

In a small concession, the CND became empowered, after 2008, to endorse some harm-reduction measures. The commission, for example, asked member states to scale up ‘evidence-based interventions to prevent HIV infection among people who use drugs’. It recommended to their attention a WHO, UNODC, UNAIDS Technical Guide for Countries to Set Targets for Universal Access to HIV Prevention, Treatment and Care for Injecting Drug Users, which endorsed needle exchange programmes.¹³⁴ For the first time, in 2012, it considered recommending alternatives to incarceration. In a resolution, the CND encouraged member states ‘to consider allowing the full implementation of drug-dependence treatment and care options for offenders, in particular, when appropriate, providing treatment as an alternative to incarceration’.¹³⁵

The question was whether this was not, from the perspective of the drug-control consensus, a case of too little, too late. The last decade has seen an increasingly direct challenge to the international drug-control system. The violence had not stopped by 2008, and the UN’S 1998 call for one last push against drugs had visibly failed. The critique of prohibition that had first emerged in the 1990s resurfaced. The novelty, however, was that it now came from state actors themselves. It also burst the banks of the developed world. In the last ten years, two powerful calls for reforming the drug-control system have emerged, both originating in Latin America.

In 2009 three former presidents – Fernando Henrique Cardoso of Brazil, César Gaviria of Colombia (the same man Escobar had tried to kill by blowing up the Avianca plane) and Ernesto Zedillo of Mexico – joined with a wider group of Latin American personalities to demand fundamental change. Two years later, the Global Commission on Drug Policy was born, a caucus encompassing South American luminaries – the ex-president of Chile Ricardo Lagos and the writer Mario Vargas Llosa, for example, in addition to the original three – but also American and European business and political figures such as Richard Branson, George Shultz, Javier Solana and Paul Volcker. Most spectacularly, its roster included Kofi Annan, former Secretary-General of the United Nations, the very man who had issued the 1998 call for a ‘drug-free world’.136

The Global Commission on Drugs has called for a paradigm shift in the war on drugs. In its own words it ‘broke the taboo’ on drug control’s supposed successes and actual consequences, drawing from data on health, trafficking, legal trends and economics. It has called the war on drugs a war on people: farmers losing their crops or lands, citizens denied health and sometimes life, individuals sentenced to long prison terms. It has also rebutted two of supply suppression’s central tenets: that it raises drug prices, thereby reducing demand, and that pursuing trafficking kingpins has been a useful strategy – though at the same time it has called for concentrating policing efforts on ‘the most dangerous . . . actors of the illegal market’.¹³⁷ Finally, it has made ambitious proposals ranging from harm reduction to extensive legalization measures. In 2018 the Global Commission made the case for unrestricted legalization:

A fundamental question regarding illegal drugs is still rarely asked. Who should assume the control of these substances that bear serious risks for health – the state or organized crime? We are convinced that the only responsible answer is to regulate the market, to establish regulations adapted to the dangerousness of each drug, and to monitor and enforce these regulations. This is already the case for food, for legal psychoactive substances, for chemicals, for medications, for isotopes and many other products or behaviors that comprise a risk of harm . . . The regulation of currently illegal drugs is not only possible, it is necessary.¹³⁸

The formation of the Global Commission on Drugs echoed the address to Kofi Annan of 1998, with a larger, more geographically diverse and yet more high-profile backing – as well as the difference that the former UN Secretary-General had now switched sides. Yet to translate into change, it needed political action. The second attack on the drug-control order has taken place in the diplomatic arena itself, and it has demonstrated the potential for mustering a coalition for reform beyond what had long looked conceivable.

In 2013 a meeting of the presidents of Mexico, Colombia and Guatemala called, independently of the first initiative, for a reevaluation of UN drug policies. In the same year, this was picked up by the Organization of American States. Though the OAS’S message was eventually toned down at the behest of the United States, the UN agreed to move its next ten-year review session up to 2016 to accommodate the need for a debate.139 The session itself was the occasion for preparations at the CND in 2014, including a set of subsidiary meetings known as a high-level segment. Both sets of debates were characterized by open tension between the partisans of the entrenched order and a reforming coalition ranging from Latin America (Mexico, Uruguay and Guatemala having been the most vocal nations) to Europe (the Czech Republic, Norway, Portugal, Switzerland, the EU as a block) as well as Asia and the Pacific (India and New Zealand).¹⁴⁰ While some demanded more flexibility in drug control, the Japanese delegate belittled ‘so-called harm reduction’.¹⁴¹ When Uruguay proposed to amend the treaties, the Algerian representative responded: ‘We must cover our ears.’¹⁴²

The 2016 UN session itself contained no radical resolutions. Though the debates were less triumphant than they had been in 1998, the policy menu remained heavy on traditional supply-suppression and demand-reduction recipes.¹⁴³ The speeches, most of them lacking in originality, were nevertheless leavened by defiant declarations by Enrique Peña Nieto, the Mexican president; Milton Romani Gerner, the representative of Uruguay; and the Colombian president Juan Manuel Santos Calderón. ‘The approach essentially based on prohibition – the so-called war on drugs that began in the 1970s – has not succeeded in diminishing the worldwide production, trafficking or consumption of drugs,’ said Peña Nieto. ‘A consensus is beginning to emerge in favour of meaningful reform of the international drug regime.’¹⁴⁴ Romani extolled harm reduction and his own country’s marijuana legalization. ‘The war on drugs has ended. It was a senseless war with a fundamentalist approach characterized by rigid exhibitionism and one-track thinking, which has also been brought to an end,’ he declared.¹⁴⁵ As to Santos Calderón, he asked: ‘After so many lives cut short, so much corruption and violence and so many young lives wasting away in prisons, can we say that we have won the war? Can we say, at least, that we are winning it? Unfortunately, the answer is a resounding no.’¹⁴⁶

Such talk, in the context of the staid, diplomatic lingo that is deployed at these conferences, was revolutionary. It remains to be seen how much effect it will have. The obituary of drug prohibition has been written before, no doubt. The global drug-control order is governed by treaties which, in the absence of a broad momentum to do so, cannot be changed. Its institutions – the CND, INCB and UNODC – respond ultimately to impulses from their member states. So long as a majority, or even just a few powerful countries, remain opposed to alterations to the prevailing order, none will take place. That Russia remains a prohibitionist champion and that China has so much vested, ideologically, in looking tough on drugs does not bode well for reform. At the same time, the position of another prohibitionist heavyweight, the United States, has been weakened, first by its high-profile failure to contain the home-made opioid epidemic and second by its stateled legalization of marijuana. Canada’s open defiance of the conventions will be difficult to overlook. Adding to dissention, a number of countries, no longer confined to Europe, have begun pushing the envelope ever further on harm reduction.

The Latin American states, in addition to their inherent diplomatic weight, moreover hold the card that they are the home of coca cultivation and much else. That Bolivia has been able to thumb its nose at both the United States and the CND on the matter of coca chewing is instructive. It will be remembered that the 1961 Single Convention gave it 25 years to phase out the practice. Not only has Bolivia done nothing of the kind, but in 2006 it elected as president Evo Morales, a former coca grower who took an enthusiastic view of traditional chewing. At a session in 2009 the CND gave Bolivia another ten years to comply.147 Morales at first tried to have the treaty amended, but when this failed Bolivia simply denounced (that is, withdrew from) the convention. Yet within a year, in 2013, it was able to accede anew, the number of states opposing its re-accession falling below the required quorum. Even better: it was permitted to do so with a ‘reservation’ on coca-leaf chewing.¹⁴⁸ When, in 2015, the United States attempted to punish the country by decertifying it, the Bolivian government shrugged its shoulders and signed off the associated aid.¹⁴⁹

In one of its reports, the Global Commission on Drug Policy foresaw the possibility that selected states might withdraw from the conventions, taking Bolivia for a model, or enter into ‘respectful noncompliance’, like Canada.¹⁵⁰ Even if no change is ever made to the conventions, the risk to the drug-control order is that, in the absence of reform, it sinks into irrelevance. Piecemeal non-compliance, alongside harm reduction, raises the threat of systemic destruction from the inside.

UNODC has been sounding increasingly concerned over the last few years. The agency has evidently been aware that its member states are divided. Harm reduction has appeared with rising frequency in its recommendations. ‘The flexibility inherent in the international drug control conventions should, to the maximum extent possible, be used to offer individuals (men, women and children) with drug use disorders the possibility to choose treatment as an alternative to conviction or punishment,’ it noted in the aftermath of the 2016 UN session.151 Following the stormy CND meetings of 2014, UNODC remarked that there were no ‘simple answers’ to the drug problem.¹⁵² In its language, demand reduction has become increasingly leavened with references to human rights and to development. This draws the lessons from the ceaseless failures of supply suppression, though also from its occasional successes – the rare instances when suppression efforts have prevailed, as in Thailand, having been accompanied by important strides in economic development and the large-scale deployment of physical and social infrastructure.¹⁵³

Chiefly, however, the realization has crept in that far from having been defeated or even contained, drug trafficking has been constantly spreading. Drug dealing has been conquering new geographies: in Africa, for example. Benin, Tanzania and Kenya were serving as platforms for distribution into Europe from South America or Pakistan and increasingly into African countries themselves.¹⁵⁴ In 2019 UNODC drastically revised its worldwide numbers upwards, in part to reflect a new estimate for opiate and other drug users in Nigeria.¹⁵⁵ Even more ominous than geographical expansion has been the traffic’s ever wider product diversification. Amphetamines have been overtaking opiates and cocaine in user terms. New psychoactive substances (NPS), new synthetic or plant-based intoxicants, have appeared in an ever more bewildering array. ‘The problem of NPS is a hydra-headed one in that manufacturers produce new variants to escape the new legal frameworks that are constantly being developed to control known substances. These substances include synthetic and plant-based psychoactive substances, and have rapidly spread in widely dispersed markets,’ the agency has noted.¹⁵⁶ Scheduling cannot keep up. There have been too many NPS – 251 of them by 2012 – and their composition is changing constantly. Some countries have been independently introducing ‘emergency scheduling’, such as the UK, the Netherlands and Germany (Britain passed a contested, blanket Psychoactive Substances Act in 2016), but others have given up and now track them through their weaker pharmacy laws.157

Finally, there is the sheer size of the traffic. The 2019 UNODC report made for grim reading. More people used illicit drugs than ever, and 30 per cent more than a decade before. Opiates, cocaine, amphetamines and other stimulants, hallucinogens such as LSD or Ecstasy: all were at record highs. The number of NPS had doubled compared to a few years before, reaching a total of five hundred. Poppy acreage in Afghanistan, after twenty years of reduction efforts, was at its second largest ever and up 60 per cent compared to a decade earlier.¹⁵⁸ All this while trafficking, ever plastic and malleable, was yet again running rings around law enforcement:

The monitoring of the modi operandi of drug traffickers and their trafficking routes needs to capture the dynamics and incentive systems inherent to drug trafficking. There is a need to understand, in particular, the complexity and variability of the spectrum of drug trafficking modalities. The dynamics of the recent opioid crisis in North America, which are now coming to light, highlight the need to address both sophisticated trafficking of large shipments in containers and the smuggling of small packages containing NPS and synthetic opioids (fentanyl analogues) via the postal system. Some end users buy their products directly online or via the darknet, posing additional challenges. This changing landscape is a far cry from the situation of just two decades ago, with mostly organic psychoactive substances being trafficked across borders.¹⁵⁹

The Latin American statesmen’s appeal for change in 2013 had given rise to a report by the Organization of American States. This was less a discussion of prohibition’s successes and failures or even a policy document than an effort to peer into the future. The idea was to alert policymakers to what could happen. Though designed for the Americas, it could equally have applied to the world drug-control order.

The document envisaged four scenarios: together, pathways, resilience and disruption. The first scenario, ‘together’, was the closest to business as usual, with the difference that confronting trafficking would be met by stronger public-safety institutions. ‘Pathways’ included trying out ‘alternative legal and regulatory regimes’, beginning with cannabis. ‘Resilience’ supposed that states enhance their education and healthcare-based response to drugs and drug violence, foreseeing the triumph of harm reduction. ‘Disruption’, finally, supposed that states go their separate ways, with key producer and transit countries deciding that the fight, too costly and unbalanced, was best abandoned.160 Continuing prohibition, legalization, harm reduction or a disorderly breakdown: two hundred years into the war on drugs, it remains impossible to predict which of these potential realities will come to pass.