<i>"The Name of Our Country is América" - Simon Bolivar</i> The Narco News Bulletin<br><small>Reporting on the War on Drugs and Democracy from Latin America
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Illicit Drugs and Globalization

Prohibition Causes Most of the Harms Associated with Drugs


By the Hon. Maria Lúcia Karam
Brazilian Federal Military Judge (ret.)

May 18, 2003

Publisher’s Note: The following, translated from the original Portuguese by Narco News, is the text of the speech given by Judge Maria Lúcia Karam at last Friday’s forum in Rio de Janeiro: “Democracy, Human Rights, War and Narco-Trafficking.”

Prohibitionist Policies and the Widening
of State Power to Punish

The globalization of the prohibitionist policy option brings a process of criminalization of conduct related to the production, the distribution, and the consumption, of some psychoactive drugs (like marijuana, cocaine, heroin, etc.), that, artificially differentiated from other substances (like alcohol, tobacco, caffeine, etc.), are qualified as illicit drugs.


Maria Lúcia Karam
Photo D.R. 2003 by Al Giordano
This is the issue where, today, the worst publicity trick is played in advertising and selling the penal system as a product-service that sells protection and security, when, in reality, this instrument is a stimulant for the negative situations and is the creator of more and bigger conflicts, the center of a policy supposedly aimed to contain an exaggeratedly frightening circulation of those substances that it made illegal.

This prohibitionist policy ends up causing a dangerous intensification of control by the State over the lives of individuals, leaving us a glimpse of the social formation of post-industrial and globalized capitalism: a maximum, vigilant and omnipresent face of the minimal State of neoliberal teachings.

Taking advantage of the mystery and fantasy related to substances that are made illegal, it gives super-dimensionality to the eventual negative repercussions of the dissemination of its supply and demand, of hurried or false information, of empty words, with indefinite and detoured meaning, of the idea of a “universal evil,” that the maximum State, vigilant and omnipresent, assigns to drugs qualified as illicit as part of the post-modern necessity of the creation of new enemies and ghosts.

Like in Europe during the 14th and 15th Centuries, in which legislative and judicial practices of execution and detailed legal codes permitted the identification and stigmatization of witchcraft and heresy, this fantasy is revived in the so-called post-modern age, to bring a more rigorous repression that is sold as more effective, and exceptional, laws, of abandonment of the principles of minimally guaranteed rights, in the area of penal measures, which are centered around a dominant policy said to be aimed at controlling the production, distribution, and consumption, of those drugs that are distinguished as illicit.

The repression of drugs qualified as illicit has a supposition: an indefinite and indefinable “organized criminality” that is pretentiously related to them, notably since the 1990s: the principal excuse for a growing production of laws that, in Brazil, as in other countries, are very similar to the exceptional laws of repression created during the dictatorships.

The law of sacred exception expands the methods of seeking proof – such as the secret spying on persons, the interception of telephone communications, observation from a distance, the infiltration by police agents – whose true effectiveness is not as it is advertised, a supposed viability of a more effective control over criminality, but, rather, a larger intervention against the privacy and liberty of all citizens.

Along with these invasive measures against the individual the State makes rewards only for itself, breaking with the necessary ethical practice that must orient penal processes or any other State activity in a Democratic State of Law. The praise and reward for treason brings the State to exercise a de-educating role in the area of interpersonal relations, of transmitting values that are at least as negative as those it says it wants to confront.

Prohibitionist Policies and the Vulnerability
of Rights to Liberty, Privacy and Health

A violent and dangerous prohibitionist policy, based on intervention by the penal system, manifests itself in an especially serious form in the area of consumption, notably when criminalization is enacted – either subtly or boldly – against personal use of drugs that are qualified as illicit.


Maria Lúcia Karam
Photo D.R. 2003 by Al Giordano
The criminalization of personal use is clearly incompatible with the postulates that a government with a Democratic State of Law should have, and this occurs when such conduct is punished with the deprivation of personal liberty, or by so-called “alternative sentencing” (monetary fines or the restriction of other rights), or through forced medical treatment. The consumer of drugs qualified as illicit, stigmatized as a criminal, a delinquent, or sick person, who must suffer an explicit punishment or one disguised as an administrative sanction, or who is obligated to submit to medical treatment, is inevitably brought to one of two alternatives: If he is sick, he is not free; if he is free, he is evil.[1]

In the event of simple possession of drugs for personal use, or consumption in circumstances that don’t involve concrete dangers for third parties, such conduct, being in the individual sphere, are in the field of intimacy and private life.

The general function of law as the protection of the dignity of the person, under Brazilian Constitutional order, surged as one of two founding principles of the Republic, expressed in the third section of Article 1 of the Federal Constitution, which limits the power of the State to punish, and considers public damage as the obligatory point of reference for the setting of parameters in the design of criminal laws. In a Democratic State of Law, everything at the disposal of criminalizing law (this, and, all rules that prohibit certain conducts under threat of penal sanction) has had as its first element the occurrence of some injury or concrete danger of injury to the general good, that it tries to protect with a prohibition, a general law that limits the field of incidence with definitive rules about criminalized conduct and that can be defined as a relation between a subject and an object, identifiable as a right of the subject to use and enjoy certain objects like life, health, property, etc.

The injury or danger of injury to the general good (this is its affectation) is revealed exactly when a conduct impedes or perturbs the availability of said objects that, thus, necessarily, are enjoyed by third parties.

In a Democratic State of Law, whose best tonic is found in the subordination of the exercise of the power of law, with a view toward guaranteeing the rights and dignity of each individual or of the general good, must always be seen from a personal perspective. The creation of general laws of a collective or institutional character is only allowed when there is a need to protect individual rights. The provision of what is called the control for the public good that is described with vague expressions such as public order or public peace, orient the attention of penal law in the direction of criminalization of conducts that obtain that illegal status only because the authority of the State merely declares its will that the conduct is incompatible with a Democratic State of Law.

In the hypothesis of drugs made illegal, the only recognizable common good in the criminalizing laws is public health, as the primitive article 281 of the Brazilian Penal Code first made explicit, and was later substituted by special legislation. Public Health – a genus and species of public purity – has, as is known, a collective character that is determined by those placed in charge of it. Its impact, as happens in relation to other legal rights of this nature, is only verified through the expansion of injury or concrete danger of injury to an undetermined number of subjects.

Thus, when the law is aimed at the person who possesses drugs, or when his consumption is done in a way that doesn’t surpass the individual realm, he has not affected public health. The law prohibits something to do with himself as opposed to behavior that is expansive to third parties. These are private behaviors that, in the absence of a concrete impact on the common good of third parties, are behaviors that, as such, cannot be the object of any form of criminalization.

He (the drug user) takes part in a liberty and intimacy of private life with the option of doing things that seem to others – or that effectively are seen – as errant, “ugly,” immoral or damaging to him self. The dignity of the human being, recognized since the origins of a Democratic State of Law, impedes the forced transformation of the individual. As long as the conduct does not affect the rights of others, the individual can be or do whatever he likes. What the others – and, these include the State – can do, under these circumstances, is to try to demonstrate to the individual that, supposedly, he is harming himself, that his behavior is not good, but the law can never obligate him to change his behavior, even less so through the imposition of a penalty, in any conduct of this nature or dimension.

Beyond that, the violent and dangerous prohibitionist policy does not exhaust its (ir)rationality through the illegitimate limiting of the rights to individual liberty, intimacy and private life.

It is also in this same level of consumption that two more carefully hidden paradoxes of criminalization surge. The false image, produced by the self-referencing system in which a criminalizing policy toward certain psychoactive substances made illegal is developed, impedes the protection of public health that it creates the very reason for the criminalization. To the contrary, it is seen affected by the same criminalization, bringing, with prohibition, greater risks to the physical and mental health of the consumers of the prohibited substances.

On this point, it’s enough to think of the effects of making a conduct clandestine that impedes the control of the quality of the substances produced and sold toward a lack of hygiene, that complicates the seeking of assistance, answers and information, that generates greater tensions, that stigmatizes, isolates, and marginalizes.

Prohibitionist Policies, the Market, and Violence

On the level of the production and distribution of the selected psychoactive substances that, legally differentiated, are qualified as illicit drugs, the lack of commitment to reality by the globalized prohibitionist policy and its manipulation of fantasies and false information already seem to have created its own language.


Maria Lúcia Karam
Photo D.R. 2003 by Al Giordano
To speak of “narco-trafficking,” is to destroy all meaning of the word, in the same way that “organized crime can be used to define anything, with a minimum of scientific endorsement, translates to its contents.

The expression “trafficking,” that has the feeling of illegal business, already brings a strong emotional charge that is different than that of the equivalent expression “illegal business.” The beginning of the “war on drugs” policy’s use of this “trafficking” expression, the radical use of the English word “narcotics,” that, being present in other languages, too, permitted, at the same time, a unification of languages with a still larger emotional charge, referring to the activities of the production and distribution of the drugs qualified as illicit. The expression “narco-trafficking” passes, thus, to be repeated and internalized without being perceived – or not wanting to be perceived – with the clear lack of commitment with reality or with science, and is packaged in a distorted and functional use of language.

The creation of the useful and exacerbated emotional phrase passed quietly over the fact that the principle goal of the prohibitionist policy continued to be cocaine: that, as cannot be ignored, is not a narcotic; to the contrary, it is known evidently as a stimulant. This generalized and distorted utilization of the expression “narco-trafficking,” its obvious functionality for the consolidation of the internationalized direction of the prohibitionist policy, still serves to feed manipulated fantasies about something mysterious and powerful to be confronted at any cost.

In the same form, there surged, was installed, and consolidated, in the 1990s, the expressions “organized crime” and “organized criminality,” with what pretends to offer the idea of a supposed new species of criminality, one that is globalized, multinational, powerful, that is seen occupying the space of a new “universal evil,” constantly associated with the production and distribution of drugs qualified as illicit.

Trying to appoint characteristics that are typical of a business structure, or supposed infiltrations into the apparatuses of political power, (to the activity of drug production and distribution), the words still don’t succeed in arriving at a definition of this supposedly post-modern mode of criminal actuation. In reality, all conduct, criminalized or not, that is not limited to being an instantaneous or instinctive reaction to a determined situation. It has an organized component that is demonstrated, still more especially, when said conducts bring together more than one person with a common goal that ordinarily applies to the field of legal conduct as well as illegal conduct.

The expressions “organized criminality” and “organized crime” do not have, thus, any particular meaning at all. Like the expression “narco-trafficking,” they have the same emotional and frightening charge that already was seen, in other times, with expressions like “witchcraft” or “heresy.” Like the expression “narco-trafficking,” they only serve to scare and to permit the production of excessive laws, applied to whatever is wanted or convenient as a supposed manifestation of such an imaginary phenomenon.

The substitution of Medieval means for a minimum of compromise and attention to reality and to science, certainly, could help to untie the (ir)rationality of a globalized prohibitionist policy on the level of the production and distribution of psychoactive substances made illegal.

Taking economic science into account and thinking, for example, the expansion of the consumer markets of illicit drugs obeys the logic of capitalist economic relations as a determining factor in the production, opening new opportunities for accumulation of capital and generation of business and, beyond that, for bypassing the limited opportunities offered by legal economic activities, such as that which has already occurred in other stages of capitalist development.

This economic logic already permits the inevitable ineffectiveness of a policy of control founded in the intervention of a penal system: the businesses – large or small – and the employees of the production and distribution businesses of drugs qualified as illicit, when some prisoners are eliminated from the business, they are easily replaced by others equally desirous of the employment opportunities or the accumulation of capital; opportunities that, more than being repressed, persist when the favorable socioeconomic circumstances of demand exist, created by the incentive of the market. Where there has been demand, there will be supply.

Beyond that, please think, also, in the worst consequence of this artificial variable introduced into the market: the violence as a corollary of illegality. When it makes certain goods and services illegal, the penal system functions as a true generator of criminality and of violence, a phenomenon that can also be perceived in relation to games. To the contrary of what is claimed, it is not the drugs that generate the criminality and violence. It is the very fact of their illegality that produces and inserts criminalized businesses – more or less organized – into the market – while simultaneously bringing violence as a necessary sub-product for the economic activities that are developed in this way.

Being the true creator of the criminality and violence related with drugs made illicit, through the intervention of the penal system over the market, the maximum State, vigilant and omnipresent, makes use of this same criminality and violence, manipulating the fear and insecurity provoked by real or imaginary actions of these currents, to widen the punitive power and intensify control over the lives of individuals.

Conclusion

If we want to end the fear and insecurity, and the contemporary hysteria created by the violence associated with criminality, this is already a decisive argument to walk a path to decriminalization.

It’s enough to follow the example of history. It is always valuable to repeat that what defeated the violence in Chicago of the 1920s and 30s was not the work of the Untouchables of Eliot Ness: Only the end of the Dry Laws did it.

What’s more, the reduction of violence isn’t even the best reason to walk the path to decriminalization. More important is to remember the warning of Nils Christie that the worst danger of criminality in modern societies is not crime itself, but, rather, that the fight against it ends up conducting those societies to totalitarianism.[2]

This significant warning should direct our attention to the need to break with the tricky savior of intervention by the penal system, to break with the revived Medieval fantasy that permits a post-modern sacrifice of new heretics and witches, to break with the unmeasured control, demonstrated through the exercise of the State’s power to punish, to bring with the threats to fundamental principles of a Democratic State of Law, packaged in excessive laws, the need to break with a globalized prohibitionist policy, the major cause of the damages related to the drugs made illicit.

This globalized political policy is only sustained by the distortion of reason. Only a distorted reasoning can believe that the criminalization of the conduct of producers, distributors and consumers of some among innumerable psychoactive substances could serve to deter the seeking of the means of alteration of consciousness that has roots in the very history of humanity.

Only a distorted reasoning can permit that, in exchange for an illusory search, the same State foments the violence, that this is done only through what it does to the activities of production and distribution of the drugs qualified as illicit, because their market is illegal. Only a distorted reasoning could authorize that, below this same illusory pretext, restrictions of liberty are placed on those who, eventually, could cause damage to their own health. Only a distorted reasoning can find peace with an expansion of the power to punish, that, utilizing a militarized repression, a growing disrespect for the classic principles of rights, is threatening the very foundations of the Democratic State of Law.

Freed from the negative effects of criminalization, the drugs that, currently differentiated, are today qualified as illicit would certainly cause less damage. Eventual excesses or incentives to careless or uncontrolled consumption of psychoactive substances, whatever they may be, must be the object of measures that are disconnected from what is the harmful, counterproductive, or painful intervention by the penal system. We can rescue the commitment to reason by demonstrating truly effective Harm Reduction in dealing with the causes of excessive, careless, or uncontrolled consumption.

The Hon. Maria Lúcia Karam is a retired Law Judge, a former Public Defender for the State of Rio De Janeiro, and ex-Auditing Judge of the Federal Military Justice system. She is a member of the Brazilian Institute of Criminal Sciences, the Judges Association for Democracy and of the Carioca Criminology Institute. She is a professor of the course “Jurisdiction and Competence” in the Masters of Penal Sciences program of Cândido Mendes University.

Notes:

[1] Cf. Alessandro Baratta, “FUNDAMENTOS IDEOLÓGICOS DA ATUAL POLÍTICA CRIMINAL SOBRE DROGAS”, in SOCIALMENTE , org. Odair Dias Gonçalves e Francisco Inácio Bastos, Rio de Janeiro, Relume Dumará, 1992, páginas 35 a 49.

[2] in LA INDUSTRIA DEL CONTROL DEL DELITO LA NUEVA FORMA DEL HOLOCAUSTO?, Spanish language edition, translated by Sara Costa (Editores del Puerto, Buenos Aires, 1993, página 24).

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