Cannabis in the USA Part II: … losing the (drug) war?

Reforms represent just one battle in a bigger war that is far from over

Matthew BishopIn the previous post, I discussed how cannabis reforms in parts of the US were gathering pace. Yet, paradoxically, progress in this area could actually conceal an intensification of the general ‘War on Drugs’.

Legalising states in the US remain in violation of the federal Controlled Substances Act (and cannabis is a Schedule I drug, higher than opium or cocaine, which are Schedule II). The US itself is also in breach of its UN drug treaty obligations. Washington’s disingenuously expedient defence is essentially that, because the federal government signed the treaties and cannabis remains nationally illicit, nothing has changed.

However, a crunch is coming. In 2016, seven more states – Massachusetts, Maine, Nevada, Ohio, California, Missouri and Hawaii – are holding ballots on whether to create legal markets for recreational cannabis. April 2016 also sees a Special UN General Assembly (UNGASS) on ‘The World Drug Problem’, with many members – particularly Russia and some Asian countries – opposed to the American direction of travel. These two conjunctural processes are placing the US under increasing pressure to clarify domestic policy and law, as well as its external orientation; many observers feel that the trigger for federal action will be if California decides to follow the legalisation trend.

There is a degree of hubris evident in the opinion of the more excitable reformists, who believe radical change is inevitable. Others are more circumspect: they are cautiously optimistic – and rightly so, for the reasons I suggested previously – but they also recognise that serious dangers lie ahead.

Domestically, the Republicans – who dominate both houses of Congress and have been gerrymandering busily to ensure this remains so, even if Hillary Clinton becomes President – could push back. They have grudgingly reconciled themselves to cannabis reform by constructing it as a ‘states’ rights’ issue, and therefore not something that should invite federal interference. This has allowed them to take a principled stand without having either to accept change wholesale or, indeed, lose face.

Nonetheless, a Republic President in 2016 could easily reverse Obama’s reforms, particularly if some of the seven ballot initiatives fail, momentum is lost and more conservative states also begin to voice opposition. As one lobbyist in Washington also suggested, ‘it only takes one intoxicated driver to have an accident with a bus full of kids and power will shift decisively to opponents of reform’. (Never mind, of course, that the American right rarely talks about banning guns when they are deployed to murder groups of children.)

In short, without national legislation, reform rests entirely on executive goodwill: the ‘Cole Memo’ could be revoked at any time and the Department of Justice could order the enforcement of federal drug law in those states that have legalised. This would imply an enormous cost in terms of political capital and many doubt whether the government has the resources to do it anyway. But that doesn’t mean it is impossible: the disaggregated nature of the US state means that certain institutions – not least the State Department’s Bureau of Narcotics – are populated with people who built careers in tandem with the intensification of the drug war. Many would take little convincing to reverse-engineer novel drug-policy experiments.

Internationally, the US is in an extremely thorny position. James Cockayne and Summer Walker of the United Nations University have identified three groups of states: ‘sceptics’, such as Uruguay, Jamaica, Colombia, Mexico and, to some extent, the US, which favour treaty change of some kind, even if only limited to greater flexibility – as encapsulated in the Brownfield Doctrine – around cannabis; ‘orthodox’, meaning those that remain committed to the ‘War on Drugs’; and ‘swingers’ (i.e. those which could be convinced to shift if the cost-benefit calculation made it worthwhile). They argue that there will be little treaty change at UNGASS: the ‘sceptics’ have not done enough to convince the ‘swingers’ to move towards their position, thereby perpetuating Washington’s discomfort and, as others have argued, its broader damage to international law. This became clear in October 2015 when a leaked briefing paper by the United Nations Office on Drugs and Crime (UNODC) was shelved due to pressure from an (unnamed) orthodox country; the fiasco was only revealed when Richard Branson – himself an active member of the authoritative Global Commission on Drug Policy – complained vocally to the media.

(By the way, Britain is in a comically bizarre position: it has one of the highest levels of recreational drug consumption in the world and a public firmly in favour of reform. Yet it is saddled with a Home Secretary who is seriously proposing a blanket ban on any substance with psychotropic effects, presumably therefore to include chocolate, coffee or essential oils with aphrodisiac qualities! As Matthew Scott of the Daily Telegraph put it, ‘Theresa May wants to ban pleasure’.)

The broader challenge, as Cockayne and Walker note, is that ‘flexibility’ can have multiple interpretations. Indonesia brutally executed eight drug traffickers by firing squad in April 2015: it is quite possible that Asian countries could use the space that those in the Americas are claiming for the de-escalation of the drugs war to intensify their own domestic apparatuses of repression and violent retributive punishment. Moreover, if cannabis reform was to occur at UNGASS, ‘sceptics’ could easily claim this as evidence that the system works and does not, therefore, require fundamental reform.

This is my biggest worry. Cannabis is only one battle in the wider conflict to end the catastrophic era of drug prohibition. As an effective discursive strategy to crowbar open debate with an ill-informed public and political class – and thereby claim their initial victories – reform proponents have necessarily emphasised the (intuitive, but misleading) idea that cannabis is less harmful than other drugs. The danger is that their opponents could push such ‘marijuana exceptionalism’ to its logical conclusion: they could concede defeat on cannabis legalisation, but then isolate it as a unique issue, drawing a line under it and using this apparent concession as a springboard to re-animate and re-intensify other aspects of the wider ‘War on Drugs’ as a whole, including the escalation of violent anti-trafficking operations.

As it is, though, there are three reasons for optimism. First, the genie is out of the bottle: US policy experimentation has opened up space for others to do the same, which many Latin American countries are gratefully seizing. Second, the recent election of Justin Trudeau in Canada has added another powerful reform advocate to the growing list of ‘sceptics’. Third, the other changes that I noted previously – especially criminal justice reform – imply an end to the harshest aspects of the drugs war, at least in the Americas; it is hard to imagine them all being wound back.

There is no doubt that a large crack has emerged in the edifice of the ‘War on Drugs’. However, the ‘drug warriors’ and their vested interests have not gone away: they are in the process of losing one battle, but they remain a long way from being decisively vanquished.

My research on this issue is supported by the Drugs, Security and Democracy Program of the (US) Social Science Research Council in New York.