A War that Can’t Be Won: Binational Perspectives on the War on Drugs

10. Regulating Drugs as a Crime: A Challenge for the Social Sciences

258 Introduction In this chapter we examine the problem of drug trafficking and drug use with an eye to decriminalization and legalization. We analyze the current legal and regulatory framework built around psychotropic substances and present some key challenges to the prohibitionist framework that has prevailed for the last forty years. We further explore what these challenges imply for the penal and criminological sciences. To accomplish this, we focus on four perspectives on the issue: (1) the criminological; (2) the politicalcriminal ; (3) the penal-dogmatic; and (4) the prosecutorial. The ultimate goal of this chapter is a fourfold examination of drug trafficking and drug use in order to identify the tipping points where the penal and criminological sciences can help on the road to a new framework on illegal drugs. In the process of analyzing these tipping points, we hope to show how the traditional penal and criminological approaches around drug trafficking and drug use, designed around the individual trafficker or user, are inadequate to address the phenomenon of group organized crime. Similarly, we draw attention to the way in which the modern state seems to react vis-à-vis the dual problem of prohibition and the decriminalization/ legalization of the use of drugs by reinforcing a patently inadequate normative framework that regulates activities linked to so-called crimes against public health or drug trafficking/drug use criminal activities. We also deal with the discussion of whether public health is really the public good being affected by drug-related criminal activity, or whether the dischapter ten Regulating Drugs as a Crime A Challenge for the Social Sciences1 Israel Alvarado Martínez and Germán Guillén López Regulating Drugs as a Crime · 259 course that places public health at the center of the debate on drugs, something done heavily in Mexico, is merely a red herring to hide the inadequacies of the overall framework to deal with illegal drugs. Finally, we highlight the ineffectiveness of the traditional system of criminal investigations and prosecutions when it comes to drug offenses and the government ’s claim that it requires exceptional means to investigate and prosecute such crimes, including sometimes the violation of human and due process rights. Crime or Public Health: A Definitional Perspective From a strictly criminological point of view, drug trafficking is not first and foremost a crime against public health as it is often claimed by the government, the legal profession, and the media in Mexico. Instead, drug trafficking is simply an aberrant activity typified by the penal code as a crime because it profits from the exploitation of the chemical dependence of a group of individuals (García-Pablos 1986). It must be emphasized that it is classified as a criminal activity in part because it seeks to exploit this chemical dependence of a group of individuals for profit. In fact, a major point often made when analyzing drug trafficking is the fact that its economic profits have skyrocketed since the 1960s, although this is particularly because of an increase in the consumption of psychotropic substances in the developed countries, such as the United States, but increasingly in other less-developed nations as well (Herrero 2007). The profit motive is seen as particularly heinous. The combination of addiction and profit is not easy to deal with when it comes to drug consumption and drug trafficking. Disentangling these issues is not a trivial debate either, given that this link is the foundation of the current prohibitionist regime. For over four decades , governments all over the world, as well as legislators, jurists, hygienists , moralists, religious leaders, law enforcement agents, psychiatrists, and sociologists, among others, have insisted, depending on where they sit, that it is, among other things, a criminal problem, although others have also insisted that it is a public health issue. Each of these groups conceives the problem through its own lens, however, but most agree on a prohibitionist approach. The prohibitionist approach to drug dependence, with all the strategies and tactics that it generates, however, has failed to stop drug trafficking and drug use. In fact, nearly all of these groups agree that there has been a considerable increase in drug consumption even as they agree in maintaining the current antidrug framework. Each of these groups has 260 · Ending the War made these paradoxical claims in conferences, reports, and legislation, even when they move to tweak regulations, create health institutions, and design programs to tackle the...