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February 11, 2010

Providing a new (and needed) theoretical model for drug regulation regimes

One of my new colleagues while I am here visiting at Fordham Law School, Kimani Paul-Emile, has this terrific and terrifically important new paper available via SSRN, which develops a theoretical model for different drug regulatory regimes.  The piece is titled "Making Sense of Drug Regulation: A Theory of Law for Drug Control Policy," and here is the abstract:

This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon.  For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control. 

This article posits a conceptual model for making sense of this dissonance and applies this model to the regulation of four common drugs: cocaine, marijuana, tobacco and anabolic steroids.  Although much has been written on the topic of licit and illicit drug regulation, none of the scholarship in this literature has attempted to explain through an examination of pharmaceutical, illicit, and over-the-counter drugs how the apparent inconsistencies and incoherence of the U.S. system of drug control have been achieved and sustained.  This work fills the gap in this literature by proposing an innovative and comprehensive theoretical model for understanding how drugs can become “medicalized,” “criminalized” or deemed appropriate for recreational use, based upon little or no empirical evidence regarding the pharmacodynamics of the drug.

For those drug sentencing reformers who may be especially interested in seeing certain illicit drugs (like marijuana) becoming licit, the conclusion of this article provides important advice: 

The theory advanced in this paper also has implications for activists seeking to effect legal change with respect to drugs.  To the extent that framing influences popular attitudes towards drugs and drug use, activists would be wise to place less emphasis on lobbying legislators and policymakers by relying upon scientific data on drugs, and instead place greater emphasis on framing the issue in a way that matches the norms of the regime they prefer, and then spreading their message directly to citizens in order to shape public understanding of the drug.  Indeed, according to the model, science can be brought to bear on the meaning of drugs and it can influence how the drug will be regulated, but its influence is not dispositive.  Science is but one resource in the commercial, cultural and political battle over meaning.  Thus, those who seek to change the regulatory status of a particular drug should focus on the framing in conjunction with proving the validity of their scientific evidence.

February 11, 2010 at 08:53 AM | Permalink


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I now love the word "licit." I plan to use it in all of my written work.

Posted by: Mark Osler | Feb 11, 2010 9:51:02 AM

Britain has been a case study of this recently with the furor raised over David Nutt's firing for publicly discussing exactly the scientific ranking of drugs by actual harm and that ranking's discrepancy with drug policy or lack of. Just search on his name and pull up the stories, including the unfortunate one with the reference to Nutt Sacking.

Posted by: Michael Connelly | Feb 11, 2010 11:47:49 AM

I have a better theory.

The lawyer is a dumbass.

He prohibits a substances that kill 5,000 at most. He legalizes substances that kill 500,000 people a year.

The high IQ of the lawyer has been destroyed in law school.

Posted by: Supremacy Claus | Feb 11, 2010 6:13:05 PM

It's an interesting essay, but I didn't find it all that compelling as a blueprint for action for drug policy reformers. For one thing, the notion of framing individual drugs being the sole solution for changing status completely ignores the possibly much more important business of framing prohibition.

What Law Enforcement Against Prohibition has been doing, for example, is very effective, and yet has nothing to do with re-framing drugs. Instead, they focus on educating people about the destructive nature of prohibition. This is much more likely to achieve a significant change in policy than re-framing marijuana (although it will certainly help as well).

As far as a practical model for different regulatory regimes of currently illicit drugs, I'd look at Transform's excellent "After the War on Drugs: Blueprint for Regulation."

Posted by: Pete Guither | Feb 12, 2010 12:20:37 AM

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