Families and Friends for Drug Law Reform
committed to preventing tragedy that arises from illicit drug use
waning of clear thinking in decision making:
by W.M. Bush
Note: Footnotes not included in this version.
Full text with footnotes can be downloaded in PDF format.
This paper examines how irrationality, including the rejection of scientific method, characterises much of the drug debate. Examples include misquoting or misinterpreting the results of research. Certainty is often hard to come by in social science. Thus in the case of drug policy, we should be guided by the weight of evidence from research or other sources. This principle is frequently ignored in the drug debate. The article uses the Swiss heroin trial and the relationship of law enforcement to the causes of the Australian heroin drought as case studies to examine these themes.
The article gives as examples:
• the citation by the for Justice and Customs, Mr Ellison, of research of the NSW Bureau of Crime Statistics and Research as evidence that law enforcement had brought about the drought in spite of the fact that this point was not the subject of the Bureau’s research;
• the attribution by the Federal Government of the drought to law enforcement rather than a range of other more likely causes revealed by law enforcement agencies including the existence of a commercial decision by Asian crime syndicates to promote amphetamine-like drugs rather than heroin; and
• the Prime Minister’s dismissal of the accepted beneficial results of the Swiss heroin trial on the ground that the trial did not prove that those benefits arose from the heroin prescription as opposed to the other interventions that accompanied the prescription.
It makes the point that access to information and an environment in which the implications of information can be freely assessed and debated is necessary for rational decision making to prevail. This is threatened where agencies who have a monopoly of information are restrained from disclosing it and from engaging in a dispassionate analysis of it. These constraints appear to apply in the case of the Australian Federal Police that is directed to support the Government’s Tough on Drugs Strategy. The current review of the National Crime Authority threatens to remove its capacity to provide independent assessments of the efficacy of law enforcement to control organised crime.
The waning of clear thinking in decision making:
the case of the heroin trial and the effect of law enforcement on the supply of drugs
"For judging of what you are by what you ought to be, I persuaded myself that you would not reject a reasonable proposition because it had nothing but its reason to recommend it." (Edmund Burke on conciliation with the American colonies, delivered in the House of Commons, 22 March 1775.)
Clear thinking is a stranger to much current Australian political discourse. The gap between the intellectual rigour behind the computer we use, the human genome project or the Mars probe and its meagre application to the social problems that surround us has never been greater. We never question the need for uncompromising rigour behind the technology we use but do not think to apply it in assessing whether, for example, the federal government’s "Pacific solution" is the most cost-effective, not to mention humane, policy to reduce refugee flows. In the same way there is essentially no debate between both major parties in the forthcoming NSW elections about whether building more prisons and imposing severer penalties is the most effective means to reduce crime.
That technology applies the "hard" sciences and social issues call for the "soft" social sciences goes only some way to explain this different approach. By and large rational thinking of the social science of economics is regarded as very important in determining economic policy.
Drug policy throws up stark examples of irrational policy debate and of the spins used to undermine rational argument.
The approach of the federal government to two important issues furnishes examples. The issues are the causes of the heroin drought and its dismissal of a trial of prescription heroin. The heroin drought that became evident in Australia and no where else at the end of 2000 is a phenomenon of the greatest importance for drug policy. Coming as it did after years of rising heroin availability its causes merit the closest of study. The Government has claimed victory for law enforcement despite evidence that other external factors were more important.
The Government’s response to calls for an Australian trial of heroin prescription has also ignored the weight of evidence. Such a trial has been a matter of recurrent political controversy for 10 years. A Swiss trial reported reduced overdose deaths, improved health and social functioning of long-term dependent users and big reductions in crime. Those like the Prime Minister who oppose an Australian trial regard the step as a capitulation to drug use which sends the wrong message.
Misquoting research: the Minister for Justice and Customs and research of the NSW Bureau of Crime Statistics and Research
An obvious error is to state that research produced a certain finding when it did not. The Minister for Justice and Customs, Mr Ellison, did this in a media release of 18 October 2001 commenting on research issued by the NSW Bureau of Crime Statistics and Research on the heroin drought. The release stated:
"The Report also found: That key factors contributing to the heroin drought in Sydney include the record quantities of heroin seized by Australian law enforcement agencies and the arrest by the Australian Federal Police of significant figures in importing and distributing heroin in Australia" (Ellison (18/10/2001)).
In fact the report made no finding about the causes of the drought. It simply cited some views reported in the press and elsewhere. What it researched was the effect of the drought in Cabramatta on drug use, overdoses, health, access to treatment and crime. It included only speculation on the causes of the drought stating that: "The cause(s) of the heroin drought are not known with any great degree of certainty but there are probably a number of factors at work" (Weatherburn, Jones, Freeman & Makkai (October 2001) p. 2). It added that for the purpose of the research it did not "not matter whether the heroin drought has been caused by drug law enforcement, natural causes or some combination of the two."
The Minister was not alone in putting a spin on the report’s findings that was not supported by the actual research. A media release issued by the Bureau itself also gave a misleading impression of the research findings. The release quoted its director as saying that "[t]here are good reasons for believing that the heroin drought was at least partly caused by increased heroin seizures and the arrest of major heroin suppliers." He added that "the findings . . . provide the first direct research evidence in Australia that drug law enforcement has the capacity to limit heroin use and the public health risks associated with it."
Since the study did not research the causes of the drought such claims can only have misled and confused the public on a major social issue. The incident also raises questions taken up later about the capacity to bring political influence to bear on research and other bodies by budgetary and other controls.
Choosing conclusions not supported by the weight of evidence: the origins of the Australian heroin drought
The above were examples of misquoting research. Misinterpreting research is a more subtle way of dismissing unfavourable findings. Propositions of social science are vulnerable to such mishandling because of the notorious difficulty in achieving scientific certainty. Evidence there may be, even strong evidence, but politicians can always seize on the uncertainty to dismiss the most likely proposition in favour of a less likely one that suits their purpose. In this they can take advantage of the cautious scepticism of the social scientists who, in the absence of proof, are trained to leave all possibilities open. It is all the more easy to dismiss a likely hypothesis at odds with accepted wisdom when there has been no methodical research and this is so even where there exists substantial "non-academic" evidence warranting careful examination of the hypothesis.
The Australian Federal Police have identified a number of factors responsible for the heroin drought. They included poor weather conditions in Burma from where most of Australia’s heroin is derived, intelligence that Asian crime syndicates had decided to push amphetamine-like drugs in Australia rather than heroin, that those syndicates have carried out market surveys that showed a potentially greater market for such drugs and law enforcement successes in terms of a high level of heroin seizures and conviction of a leading importer.
In contrast to the caution of the AFP in attributing the drought to "many factors and not just isolated ones", the Government during and after the election has singled out the law enforcement of its "Tough on drugs" policy as the principal factor and thus claimed credit for the big reduction in overdose deaths that has accompanied the shortage. There has been no dispassionate assessment of the evidence. The Government has picked out law enforcement from a range of possible factors. It has not attempted to weigh the influence of all factors. Indeed, it omitted all mention of other factors. On the basis of publicly available evidence the most influential causes of the drought are the decline in heroin production in Burma and the commercial decision of the crime syndicates to promote amphetamine-like drugs rather than heroin. Such a conclusion has alarming implications for the Federal drug policy and is apparently ignored.
Dismissing a most likely conclusion because it has not been proven: the case for a heroin trial
Lack of proof of a proposition can be used as a reason not to accept that proposition even where evidence strongly supports it. This is what the Government did in order to dismiss the results of the Swiss heroin trial. The Prime Minister used the finding of an expert panel that found that the outcome of the Swiss heroin trial fell short of proving that heroin prescription was the cause of its spectacular outcomes. The panel acknowledged that the trials produced a large reduction in deaths and crime and improved the health and social integration of the patients but found, because of the trial’s design, that it was not possible to attribute those changes to the prescription of heroin as opposed to the associated psycho-social support. The absence of proof was seized on by the Prime Minister as a pretext for ignoring the greatly strengthened evidence produced by the Swiss trial in favour of heroin prescription (WHO (April 1999)).
Conditions required for rational decision making at odds with managerial tendencies in government
Rational decision making requires access to information and an environment that cultivates a questioning spirit. These conditions may be threatened by political tendencies. The Kennett years in Victoria exemplified a retreat in many places of the virtue of frank and fearless advice that for a century and a half was thought desirable in a public service. A different virtue, that of giving efficient, unquestioning effect to the programme of the elected government, has come to the fore. The Burke Government in the Northern Territory represented its more extreme form. There the will of the majority was regarded as a sufficient answer to objections to mandatory minimum sentencing.
In this managerial environment sources of independent power, advice and even of information within government are regarded with ambiguity if not hostility. It is an awkward fact that the strongest voices in government in favour of a trial of heroin prescription have come from independent offices: directors of public prosecution and the National Crime Authority (NCA). It is understandable that the Federal Government has resolved to change the NCA probably by adding its functions to those of the AFP.
The independence of the NCA is presently secured by Federal and State legislation. Within the AFP its powers and functions would be subject to the direction of Government.
Scope for political control of the Australian Federal Police
Ministerial Directions in accordance with section 13(2) of the Australian Federal Police Act 1979 allow the Government a lot of control over the force. For example, under current directions the AFP is charged with "providing an effective contribution to the implementation of the Government’s ‘Tough on Drugs’ strategy" and "to the whole-of-government approach to unauthorised arrivals".
Public reaction of AFP to an NCA assessment on the extent to which law enforcement is able to control the drug problem
Some indication of politically charged responses that such directions may induce can be gauged from reactions of the AFP to some comments about drugs over the past 6 months. In a commentary issued in August, the NCA reported that ". . . the illicit drug trade continues to flourish in our country. To the NCA’s knowledge [there is] an observable trend towards increased involvement in drug trafficking and an ongoing preparedness of criminals to meet market demand for different illicit substances." In this context the NCA advised that: "Among the many measures worthy of consideration is to control the market for addicts by treating the supply of addictive drugs to them as a medical and treatment matter subject to supervision of a treating doctor and supplied from a repository that is government controlled."
The AFP Commissioner publicly promptly responded by stating that that the NCA commentary did not reflect the current situation namely the existence of a heroin drought, the reduction in overdose deaths and recent law enforcement successes. "It is also timely to reflect upon the fact," added the Commissioner, "that these seizures are striking at the heart of organised and transnational crime." The AFP’s media release to this effect did not address the substance of the concerns raised by the NCA about the Government’s drug policy: that the drug problem ". . . simply is not a battle that can be won by law enforcement alone or in partnership with the health sector. A co-ordinated and holistic approach is required, building upon and updating the foundation already established." It would have been hard for the AFP to enter this debate on the merits of the NCA’s claims without breaching its ministerial direction to make "an effective contribution to the implementation of the Government’s ‘Tough on Drugs’ strategy". The Government also avoided engaging in a rational debate by refusing to apply rules of clear thinking: the AFP media release was available to it to neutralise the NCA comments by the technique of setting one expert against another.
Changing emphasis of AFP public statements on the reasons for the heroin drought
There is more evidence to suggest the susceptibility of the AFP to political influence. In mid-June the AFP Commissioner, Mr Keelty, revealed the important intelligence that: "A major [cause of the heroin shortage] was a business decision by Asian organised crime gangs to switch from heroin production as their major source of income to the making of methamphetamine, or speed, tablets." Subsequently the AFP has reacted defensively to observations that this may have had more to do with the heroin drought than law enforcement. For example, in an article on 9 December in the Canberra Sunday Times Mr Keelty did not include reference to this business decision among the causes of the drought. His article also dealt "with broader issues than law enforcement": it ranged over injection rooms, ethics and the dangers of legalisation. The Commissioner evinced no unease that this amounted to a defence of the federal government’s drug policy.
The AFP also reacted defensively to an opinion article by Dr Wodak in the Sydney Morning Herald on 4 December in which Dr Wodak cited the intelligence revealed by the Commissioner in June. Responses by Dr Gordon, a former intelligence co-ordinator of the AFP, prepared for media release by the AFP argued that Australian law enforcement success "either disrupted or warned off" large syndicates and that this rather than the longer term business decision revealed by the Commissioner was the dominant cause of the drought (Gordon (Dec. 2001) & Gordon (Jan. 2002)). Such a construction of the facts does not line up with either what the Commissioner disclosed and or with Dr Gordon’s own analysis in the September issue of the AFP’s Platypus magazine of the decline in South East Asia of heroin production and diversification into amphetamine-like drugs (Gordon (Sept. 2001)). Dr Gordon’s December piece seeks to explain away the decision of Asian crime syndicates revealed by Mr Keelty and referred to by Dr Wodak to promote amphetamine like drugs in place heroin. For example, Dr Gordon cites the higher price that heroin can command in Australia compared to Asian markets to suggest that it did not make business sense for Asian crime syndicates to forgo exporting heroin to Australia and that the decision could be explained only on the basis of Australian success in law enforcement.
Dr Gordon’s December article did not address the large increase in imports into Australia of amphetamine-like drugs organised by the same Asian crime syndicates, their market research that showed a bigger potential market in Australia for those drugs rather than heroin, a higher profit margin for amphetamine-like drugs than for heroin at least throughout Asia and the fact that the syndicates are reaping the high Australian rewards for heroin during the drought on the limited quantities they have continued to export to Australia.
In January 2002 the AFP emphasised again the view that law enforcement was principally responsible for the heroin drought. A reworked version of Dr Gordon’s December article was printed in the Sydney Morning Herald (Gordon (Jan. 2002)) and the AFP co-operated with the ABC 7:30 Report in an item on the drought (ABC (Jan. 2002)). As broadcast the police did not acknowledge the possibility of causes other than law enforcement. The Government’s espousal of the view that law enforcement caused the heroin drought and its direction to the AFP to support the Tough on Drugs Strategy leaves the AFP with little room to engage in a dispassionate debate on the causes of the heroin drought and growth in importation of amphetamine-like drugs.
Contradictory statements of the AFP on the efficacy of off-shore law enforcement
Inconsistent statements of the AFP on the efficacy of off-shore law enforcement benefit also suggest that it necessary to tailor its comments to the politics of the moment. The most recent AFP annual report was critical of the utility of crop substitution schemes in source countries:
"A strategy aimed at reducing heroin supply is crop substitution in opium growing areas, but this has been difficult to implement. It is hard to establish a crop that will compete in the marketplace, such as coffee, because these new crops have to survive in an already competitive marketplace and the returns to the people involved are very poor" (AFP, Annual report 2000-01, p. 3).
Mr Keelty has also revealed other enormous obstacles in the way of overseas law enforcement.
• Asian and Russian criminals have adopted a strategy of taking advantaging of unrest in countries in the Asia-Pacific region and lax and poorly resources immigration regimes in "weak Pacific Island countries".
• There is deep rooted criminal activity in weak and corrupt regimes among "our Asian neighbours".
• It is difficult to stage offshore operations "in countries where regimes are weak and law enforcement resources poorly developed"; "it was very difficult to get convictions when sophisticated organised crime syndicates moved in to unsophisticated criminal justice systems".
The United States which has many times more resources and influence than Australia has summarised the recalcitrance of the Burmese authorities in the following terms:
"Although the Government of Burma took various measures to combat counter-narcotics production and trafficking, those efforts pale in comparison to the scope of the problem and showed little progress from 1999. The Government of Burma has also been unwilling or unable to take on the most powerful trafficking groups directly, and continues to refuse to surrender major drug traffickers under indictment in the United States, including the drug lord Khun Sa."
The Department of State also paints the Burmese economy as significantly corrupted by drug money. This is highly relevant because Burma, the AFP tell us, is the source of 80% of Australia’s heroin and of much of the amphetamine-like drugs now being promoted.
Add to all these difficulties the much reduced vulnerability to detection of synthetic drugs like amphetamines compared to cultivated ones and the prospect of law enforcement making meaningful inroads seems hopeless. As if to make this point, Mr Keelty has ingenuously pointed out the difficulty of suppressing even the production of Australian made amphetamine-like drugs, that is in a law enforcement environment where hopefully none of the foregoing obstacles exist.
In spite of all this, the AFP appears to be putting great store on the success of off-shore law enforcement. "Unless we can do something at the source for these drugs we are absolutely going to be inundated with them in Australia," Mr Keelty has said. He has also contradicted the assessment quoted above from his annual report that there was little hope in the effectiveness of crop substitution. In October he said "there had also been major successes in other opium growing regions with crop substitution programs that were dramatically reducing the world supply of heroin".
The Government believes in the importance of overseas law enforcement effort. According to the Prime Minister: "In the fight against the drug menace nothing is more important than having a capacity overseas to identify a potential threat by drugs to this country." On the other hand the contradictory statements from the AFP on the effectiveness of that effort strongly suggests that the Government’s law enforcement policy is ill thought out. At the very least we know from an important United States study on cocaine that that, measured in terms of expenditure, source country control is 3 times less effective than domestic law enforcement in achieving a given reduction in drug consumption and a massive 23 times less effective than treatment (Rydell & Everingham (1994)).
The need to base drug policy on a rigorous analysis of evidence
The value of law enforcement in connection with illicit drugs stands or falls according to extent it makes those drugs less available. This is why it is imperative that we analyse clearly, dispassionately and thoroughly this rare phenomenon of the Australian heroin drought. The 2001 Illicit Drug Reporting System (IDRIS) and other studies have shown that the drought has had some big effects, some of which, like the reduction in overdose deaths, are most welcome.
If, as the weight of publicly disclosed evidence shows, the principal causes of the heroin drought were the series of poor opium harvests in Burma and the marketing decision of the crime syndicates to promote amphetamine-like drugs, then the Government is seeking to take the credit for the decision of criminals and weather conditions. In that case the implications for drug policy are enormous. A return of favourable weather conditions will mean that heroin is again plentiful. In the mean time there has been a big displacement to other drugs: particularly to cocaine in NSW and to amphetamine-like drugs in most other jurisdictions.
The AFP "presumes" that the drought has meant that "a new cadre of users that would otherwise have come onto the market has not done so." At the same time Mr Keelty has observed that "Amphetamines had quickly become the illegal drug of choice, especially for young people, during the heroin drought" (Ludlow (29/10/2001)). Police intelligence indicates that "Asian organised crime gangs have made a business decision to swamp the nation with pills deliberately made to look like ecstasy, but which contain no MDMA, ecstasy's main ingredient. . . . The gangs are aiming these pills at a whole new type of drug user. . . . ‘These drug gangs are very clever marketeers,’ Mr Keelty said. The way they market these pills as a Love Drug or party drug is obviously directed at young people’" As if to emphasise this point, "Harry Potter" pills are now on the streets. In other words whatever might be gained from discouragement of recruitment to heroin use is more than being countered by "clever" marketing of dangerous amphetamine-like drugs appealing to an even younger and wider audience. The Commissioner of Police has warned that it is unlikely that law enforcement alone can prevent this and that there is a need for demand reduction and harm minimisation strategies. This is close to what the National Crime Authority was getting at:
"Whatever steps are taken, the scale of the illicit drug problem and its onward progression is such as to demand the highest attention of government and the community - it simply is not a battle that can be won by law enforcement alone or in partnership with the health sector. A co-ordinated and holistic approach is required, building upon and updating the foundation already established" (NCA (August 2001) p. 23).
Establishing the conditions for a rational debate on drug policy
When expert agencies are bound to defend the Government’s policy it is difficult to have a rational debate of public policy issues. The heroin drought debate shows what we stand to lose from making such agencies the lap dogs of the government of the day. It was thanks to the relative independence of the AFP that the Commissioner could make his frank disclosure about the existence of business decisions by drug importers to promote amphetamines rather than heroin and of the threat posed by the promotion of amphetamine-like drugs. Even so, it is clear that there is little or no scope for rational debate on those facts.
Before the reform of Australia’s law enforcement apparatus proceeds far we would all do well to recall the words of Edmund Burke "that the discretionary powers which are necessarily vested in the monarch . . . should all be exercised upon public principles and national grounds, and not on the likings or prejudices, the intrigues or policies, of a court" (Burke (1905)).
It is fair to say that the Federal Government’s refusal to subject drug policy to rational assessment as it has clearly refused to do is a menace to the social fabric and even security of our nation. We are not in control of our own house. Instead we are reacting to the bidding of criminals. To use the words of the National Crime Authority we need what we do not have, "a co-ordinated and holistic approach" that will reduce the availability and use of dangerous drugs as the community clearly wants, minimise the suffering and other harms of drug users and their families and cut the cost to the wider community in crime, loss of social amenity and taxes to pay huge health and law enforcement bills.
ABC (Jan. 2002): Australian Broadcasting Corporation, 7:30 Report, "Federal Police claim heroin victory," transcript at http://www.abc.net.au/7.30/s469896.htm visited 2/02/02
AFP, Annual report 2000-01: Australian Federal Police, Annual Report 2000–2001 (Australian Federal Police, Canberra, 2001)
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Burke (1905): Edmund Burke, Burke’s thoughts on the cause of the present discontents, F.G. Selby (ed.) (London, Macmillan, 1905) p. 30
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Howard (7/05/1999): Media release of Prime Minister, 7 May 1999
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Patterson (7/12/2001): Media release of Senator Patterson, no. KP02/01 of 7th December 2001
Rydell & Everingham (1994): C. Peter Rydell and Susan S. Everingham, Controlling cocaine: supply versus demand programs prepared for the Office of National Drug Control Policy, United States Army (RAND, Drug Policy Research Center, Santa Monica, 1994) pp. 14 & 24
US, DOS, United States, 2000 Narcotics Certification Determinations (1 March 2001): Department of State, 2000 Narcotics Certification Determinations: comments of Randy Beers, Assistant Secretary for Narcotics and Law Enforcement, Robert Brown, Office of National Drug Control, Policy Deputy Director (ONDCP), Washington, DC, 1 March, 2001 at http://www.state.gov/g/inl/rls/rm/2001/jan_apr/index.cfm?docid=1011
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Weatherburn, Jones, Freeman & Makkai (October 2001): Don Weatherburn, Craig Jones, Karen Freeman and Toni Makkai, "The Australian Heroin Drought and its Implications for Drug Policy" in Crime and Justice Bulletin (NSW Bureau of Crime Statistics and Research) no. 59 (October 2001)