Drug Discrimination
the unequal treatment of those involved with equally harmful drugs

email: drugdiscrim at aol.com

 

There is no 'War on Drugs'. There are no prohibitionists. So-called 'prohibitionists' do not want the drugs they take, alcohol and tobacco, prohibited, they only want other people's drugs prohibited. ‘Prohibitionists’ then actually want unequal treatment, or discrimination, between those who use equally harmful drugs. In contrast drug reformers want equal treatment, an end to drug discrimination, equal rights of informed choice and equal property rights of possession, supply, production and export/import.

Drug discrimination is based on scapegoating, an unconscious method of removing social problems: the powerful majority deny they cause the problem (e.g. denial that alcohol and tobacco are 'drugs', referring to them as 'substances'), instead they identify the problem only with powerless minorities ('drugs' = illegal drugs = drugs used by minorities), thereby denying that the minorities’ drugs can be used and traded reasonably safely ("drugs are harmful and no-one should take them"); then the majority excludes the minorities and 'their' problem from society by denying them equal rights. Scapegoats are first denied equal respect, then dehumanised then finally demonised; this is reflected in derogatory language such as 'user', 'dealer' or 'pusher', terms often associated with 'evil'.

 

Tony Blair on drugs: ...

 

... "Every parent's nightmare is that
their child gets mixed up in drugs"

 

Drug discrimination is not only unfair, it is also irrational since it fails to address the major cause of drug harm, the drug harm caused by the majority using alcohol and tobacco. As a result of unfairness and irrationality scapegoating is an ineffective method that leaves legal drugs under-regulated and illegal drugs over-regulated. Those involved with illegal drugs are denied equal freedom but also those involved with legal drugs are denied equal protection. Since 1971 drug discrimination in the UK alone has contributed to over a million deaths from legal drugs and to a similar number of unjustified imprisonments for illegal drugs.

Drug discrimination was originally based on the ground of race, i.e. it began as a form of racism. Immigrants introduced unfamiliar non-traditional drugs and were then selectively blamed for their drug use. Eventually a minority of the indigeneous population adopted these drugs. Finally discrimination became grounded on unfamiliarity leading to public unacceptability leading to illegal status which then reinforced the unfamiliarity.

We have all grown up with the identification of 'drugs' with only illegal drugs. We all know that, objectively, alcohol and tobacco ARE drugs but we don't really believe it - subjectively we know they are different because society treats them differently. As social animals, dependent on our society for survival, we are programmed by Nature to believe subjective social knowledge even when our knowledge of objective reality conflicts with it. This is the message behind the story The Emperor's New Clothes. It is also the reason why there hasn't been any drug reform campaigns demanding equal rights. Campaigns have focused on the right to take drugs when no harm to others results but this ignores the highly relevant fact that citizens already have that right for equally or more harmful drugs.

The significance of the drug discrimination world view, in contrast to the War on Drugs world view, is that a clear legal argument can be made for equal treatment when one cannot be made for a right to take drugs. Equality before the law is a fundamental constitutional right both in the UK and in international law. It is referred to as a component of the Rule of Law. Without it democracies tend toward the Rule of the Majority. Equality before the law prevents the majority of voters voting for a government that promises to implement laws less strictly toward them and more strictly toward minorities, the scapegoating strategy.

Justice Jackson described this in the US Supreme Court in Railway Express Agency Inc v New York (1949), para 112:

There is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

Both UN drug Conventions and the UK's Misuse of Drugs Act are implemented unequally contrary to their legitimate aims: drugs used by the majority of voters are excluded while draconian restrictions are imposed on drugs used by minorities. Neither UN or UK law provides any indication that this unequal treatment is intended as a means of reducing drug harm, the public interest aim of both laws. No justification for the unequal treatment is given since to do so would highlight the discrimination between those involved with equally harmful drugs.

Discrimination has another complimentary side: there is a duty to discriminate between those in different situations, such as those who use drugs reasonably safely, responsibly and those who do not. The Government has recently said that this is the reason why alcohol and tobacco are not prohibited - prohibition would be unacceptable to the majority who use drugs like alcohol responsibly. But of course illegal drugs can be used just as reasonably safely. The Home Affairs Committee, 2002, para 20, said:

While around four million people use illicit drugs each year, most of those people do not appear to experience harm from their drug use, nor do they cause harm to others as a result of their habit.

So we have two levels of discrimination so far:

These provide grounds for legal arguments based on equality before the law under UK common law, under the Human Rights Act/European Convention on Human Rights and under the UN's Universal Declaration on Human Rights.

English common law - Matadeen v. Pointu [1999] AC 98, para 8:

Treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational.

European Convention on Human Rights - Thlimmenos v Greece (2000) 31 EHRR 15, para 44:

The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.

 

UN's Universal Declaration of Human Rights:

 

Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

 

 

Equal treatment requires equal legal regulation rather than equal prohibition

 

The human rights perspective:

If the State gives one group a particular right, one that falls within the scope of a European Convention on Human Rights right, then the State must give any analogous group the same right - "the prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention article, for which the State has voluntarily decided to provide" [Stec & Others v UK [2005], ECtHR, para 40].
Alcohol and tobacco consumers, traders and producers are at liberty (Article 5 ECHR, Article 3 UN's UDHR) to make informed choices (Article 8 ECHR, Article 12 UDHR) to exercise property rights of possession, supply and production (Article 1-1 ECHR, Article 17 UDHR) and to consume recreational drugs; therefore these rights must be given to the analogous group of consumers, traders and producers of drugs with illegal status since they pose no greater risks to society.
Article 8 ECHR rights given to alcohol and tobacco consumers: the UK Government has said “it is vital that individuals can make informed and responsible decisions about their own levels of alcohol consumption” and “we are not banning smoking… Government is determined not to infringe upon people’s rights to make free and informed choices”. According to Article 8 case law, informed consent is required before doctors can administer drugs to an individual; informed choice is the same but without involving another individual so it falls within the scope of Article 8.

The rational distinctions perspective: 

The general principle of Matadeen v Pointu, “treating like cases alike and unlike cases differently”, provides the key to understanding the correct distinctions, or discriminations, that any rational decisions should follow. This is an aspect of the common law principle of rationality.


Rational distinctions required when analysing regulations that restrict rights to property, autonomy and liberty:

         Those who use or trade illegal drugs are ‘like’ those who use or trade equally harmful legal drugs; therefore they should be treated ‘alike’. Discrimination between these classes is irrational.

         Those who use or trade drugs reasonably safely are ‘unlike’ those who use or trade them unreasonably harmfully; therefore they should be treated ‘differently’. Failure to discriminate between these classes is irrational.

         Those who use or trade drugs unreasonably harmfully only to themselves are ‘unlike’ those who use or trade them unreasonably harmfully toward others; therefore they should be treated ‘differently’. Failure to discriminate between these classes is irrational. This is a further 'third level' discrimination.

 

More on rational distinctions.

 

A common-sense description of a rational, fair and effective drugs policy:

  1. INTEGRATE illegal and legal drug regulations since both groups of drug cause equal harm.
  2. DISCRIMINATE instead, for each drug, between (a) reasonably safe drug use, (b) use harmful to user and (c) use harmful to others.
  3. TOLERATE (a) reasonably safe use.
  4. EDUCATE against (b) harm to users ('misuse').
  5. LEGISLATE only against (c) harm to others ('abuse').

[use = consumption, trade and production]

 

Conclusion:

1.        The ‘War on Drugs’ world view is an inaccurate description of reality; the ‘Drug Discrimination’ (or ‘drug civil war’) world view is an accurate description of reality.

2.        The ‘War on Drugs’ world view does not permit a legal challenge; the ‘Drug Discrimination’ world view does permit a legal challenge.

3. The issue then becomes one of re-framing the problem (Wikipedia).

4. Governments and the United Nations may be well aware of the rational arguments against the prohibition of some drugs while equally harmful drugs are legally available. They may however feel that their hands are tied by the politics underlying the discriminatory law and discriminatory public attitudes. They could not voluntarily change policy without admiting they have been wrong. They may then be waiting for a legal challenge so that the courts are 'blamed' by politicians and the public for reform. More likely they are waiting for a change in consensus - within the nation, public opinion, and internationally in terms of UN drug Conventions.
Such a change in public opinion is likely to depend on organisations concerned with drug reform, such as ASH, Alcohol Concern and Transform, calling for equal rights of protection for legal drug consumers and equal rights of freedom for illegal drug consumers. Equality and fairness are emotional issues that motivate people to stand up for their rights whereas rational arguments are more intellectual and fail to motivate. The history of discrimination supports this view - sexism and racism became recognised as social problems because of equal rights campaigns, not rational arguments.

 

 

Legal disclaimer:

This website does NOT provide legal advice, only legal opinion by non-professionals. Seek professional advice before relying on any information found on this website.