A Regulation-Based Approach to Drug Control: How the United States Can Stop the Illicit Drug Trade
The international approach to drug control is overwhelmingly prohibitionist.[1] Three UN Conventions have established this approach by requiring member states to “limit and criminalize possession, use, trade, and distribution of drugs outside of medical and scientific purposes, and work together to stop international drug trafficking.”[2] The biggest problem with this is its creation of a massive black market, which thrives on the inability to acquire drugs through other means.[3] Criminal organizations control this market and profit over US$320 billion annually.[4] The markup on heroin alone is a staggering 16,800%.[5] The United States is uniquely situated to end the need for these criminal organizations by shifting to a regulation-based approach to drug control.
The United States accounts for US$100 billion of the drug trade annually.[6] By shifting to a regulation-based approach, this portion of the market would be removed. Criminal organizations would be less inclined (and less able) to continue operating. The President of the United States currently submits to Congress a list of countries failing to meet the standards set in the three treaties.[7] Countries on the list may be subject to economic sanctions.[8] Despite there being no international law enforcement or judicial body to address noncompliance,[9] economic sanctions from one of the world’s most powerful nations is a good deterrent for any country wanting to introduce drug regulations. If the United States itself switches approaches, this threat would be removed and other nations could begin shifting their approaches, as well. This is how an illegal market operating on par with the global textiles trade[10] could be eliminated.
It is important to understand the prohibitionist approach is not failing for lack of effort – it is failing because it is fundamentally flawed. This is best exemplified by the balloon effect. The balloon effect is the idea that eradicating drug production in one area merely pushes that same production to a different area.[11] In other words, even if law enforcement successfully shuts down all the drug production in Chile, drug producers will simply move production to Argentina.
Despite the balloon effect, many believe that cracking down more severely on drug traffickers will solve the problem. Global law enforcement spends US$100 billion a year trying to control the drug trade and its effects.[12] The United States has at least ten law enforcement and financial agencies fighting drug trafficking.[13] The US Drug Enforcement Agency, stated in its 2019 Report that the drug trade is only worsening, with opioid continuing at epidemic levels.[14] Around 500,000 of the 2.3 million incarcerated Americans are behind bars for drug charges.[15]
A new approach is necessary, not more money or resources to continue persecuting those trafficking. Regulation would not only save countries money spent fighting traffickers, but would earn countries money from taxes on these substances. The attempts to stop drug trafficking in our prohibitionist system has been a massive failure, and the United States is perfectly situated to enact global change.
Emily Lowe is a staff member of Fordham International Law Journal Volume XLIV.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] A prohibitionist approach means that countries criminalize drugs (using, possessing, selling) and law enforcement uses severe sentencing and force to enforce these laws. See Against Drug Prohibition, Am. C.L. Union, https://www.aclu.org/other/against-drug-prohibition (last visited Feb. 8, 2021).
[2] Biju Panicker, Legalization of Marijuana and the Conflict with International Drug Control Treaties, 16 Chi.-Kent J. of Int’l and Compar. L. 1, at Abstract (2016).
[3] The same problem arose in the United States during alcohol prohibition, and the same problem disappeared with prohibition’s repeal. See Against Drug Prohibition, supra note 1 (explaining that prohibition led to widespread organized crime, police corruption, and violence, which all ended with the passage of the Twenty-First Amendment to the US Constitution).
[4] See The International Drug War, Drug Pol’y All., https://drugpolicy.org/issues/international-drug-war (last visited Feb. 8, 2021). Some estimates show numbers significantly higher. See, e.g., Terrorism and Drug Trafficking, United Nations Off. on Drugs and Crime, https://www.unodc.org/e4j/en/organized-crime/module-16/key-issues/terrorism-and-drug-trafficking.html (last visited Jan. 8, 2021) (estimating the annual revenue of illicit drug trade between $426 and $652 billion).
[5] See Global Commission on Drug Policy, Regulation: The Responsible Control of Drugs 32 (2018) [hereinafter The Responsible Control of Drugs].
[6] See United Nations Off. on Drugs and Crime, The Drug Problem and Organized Crime, Illicit Financial Flows, Corruption, and Terrorism in World Drug Report 2017 23 (United Nations ed., 2017).
[7] See Panicker, supra note 2, at 12.
[8] See id. at 12.
[9] See Heather J. Haase, et al., The International Drug Control Treaties: How Important Are They to U.S. Drug Reform?, 2 (New York City Bar Ass’n Comm. on Drugs & the L. eds., 2012).
[10] The global textiles trade earns roughly the same amount as the illicit drug trade – around US$320 billion annually. See The Responsible Control of Drugs, supra note 5, at 19.
[11] See Global Commission on Drug Policy, Enforcement of Drug Laws: Refocusing on Organized Crime Elites 9 (2020).
[12] See id.
[13] The DEA, INL, Border Patrol, FBI, Immigration and Customs Enforcement (“ICE”), National Guard, FinCEN, Office of National Drug Control Policy (“ONDCP”), National Institute on Drug Abuse, and the Department of State.
[14] See U.S. Dep’t of Just. Drug Enf’t Agency, 2019 National Drug Threat Assessment, 4 (2019).
[15] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.