BILL BUSH. Drug Reform series- High drug incarceration – harms manifest and benefits hard to perceive

Aug 7, 2018

At 160 prisoners per 100,000 of population, Australia’s prison rate in 2016 was more than 3 times the rate of the 1940s and 1950s.  The steep increase correlates with an increasingly repressive drug policy and the closure of mental health institutions.

In keeping with the optimism of the new nation, Australia’s incarceration rate plunged to below 80 per 100,000 population in the First World War and remained low through much of that century of war and depression. Domestic harmony and cohesion contrasted with the violence of the external world. The low point of incarceration of 51 was reached in 1940, remained low through the prosperous 1950s – a Camelot era – but something happened in the 1960s. From that time the rate of incarceration climbed steeply. By the end of the century it had reached 114. In the present century to 2016 it has risen by another 40% to 160 so that there are now some 39,000 Australians behind bars at an annual cost to government now running at  $3.1 billion.

Tightening drug prohibition from the 1960s

One can correlate repressiveness of drug policy with the rise in prison populations. Things really got going in the 1960s when, according to Desmond Manderson in his history of Australian drug laws, From Mr Sin to Mr Big, drug law enforcement against users began in earnest. The phony war had begun in 1953 when the Commonwealth Government banned the importation of heroin, thus overriding the objections of the predecessor of the AMA which had declared there “should be no curtailment of its availability”. Australian doctors did not have the clout of their British colleagues who successfully resisted the zealous United States urgings through United Nations agencies to eliminate diacetylmorphine [i.e. heroin]. The social revolution of the 60s and the arrival in Sydney of US troops on R&R swamped the capacity of physicians. These had successfully managed a small number of older “therapeutic addicts” who had become dependent on “morphine, pethidine, opium (and occasionally heroin) “. Even after the enforcement of restrictions on maintenance treatment at state level, heroin continued to be used as an effective analgesic. Indeed, I was informed that it was still being used well into the 1970s at the Royal Women’s Hospital in Melbourne for intractable pain in childbirth until stocks ran out and it was replaced by epidurals. In contrast, heroin is still widely prescribed as an analgesic by British doctors for cancer patients.

By the 1980s heroin had transitioned to become the epitome of evil, yet an official Drug Offensive Handbook for medical practitioners published in 1994 had it that “As an analgesic heroin is safe, effective and has a wide safety margin.” That year overdose deaths were running at 425 and some 73,800 Australians were being arrested as consumers, The handbook went on to observe that heroin “…is perceived by many as a ‘horror drug’. The situation demonstrates the powerful influence of drug policies or legal status of a drug on the lives of those who choose to use the substance unlawfully.” The incongruity of drug policy was by then on full display. Against the weight of medical opinion, the very people who were supposedly being protected from drugs were now its victims.

Impact of closing psychiatric institutions on prison populations

The shift of enforcement of drug policy from the medical profession to the police was not the only big change behind the filling and expansion of prisons from the 1960s. The other was the closure in the 1980s of most of Australia’s psychiatric institutions. Although done for the best of reasons in response to the widespread abuse and human rights violations in them, the change has led to present day prisons becoming latter day mental health institutions. Bean counters stole the large sums raised from the sale of valuable urban property that should have been invested in community mental health services.

According to the Burnet Institute, mental ill health has been shown to be three to five times more prevalent in the prisoner population than in the general community. “NSW research reported an 80% 12-month prevalence of ‘any psychiatric disorder’ (vs. 22% in the community) and a prevalence of psychosis 30 times higher than in the community”. The net result is that a high proportion of those in prison are dependent on a substance, overwhelmingly illicit, and suffer from co-occurring mental health conditions. The Mental Health Council of Australia’s landmark Not for service report, which took evidence across the nation, heard from The Network for Carers Of People with a Mental Illness, Victoria that:

“During the past decade, there has been a 50% expansion in the Australian prison system yet those close to grassroots services argue that much of the recent increase in the Australian prison population can be explained by unmet mental health needs, subsequent illegal use of drugs as a form of self-medication, and the eventual intervention of the criminal justice system” ( p. 436)

The respected 2007 Senate Select Committee noted that comorbidity is the expectation rather than the exception. Criminalisation of drug users adds a level of complexity on carers seeking to cope with a loved one afflicted with a mental health disorder. In May this year the Bureau of Statistics reported that: “669 people (37.0%) who died of a drug induced death in 2016 had a mental health condition (including depression, schizophrenia and anxiety disorders) coded as a contributory factor to the death event.”

Those experiencing common mental health conditions like depression and anxiety are at high risk of dabbling with illicit drugs. It starts as a form of self-medication to alleviate symptoms. Such people end up in prison rarely if ever for personal use or possession but because they committed another crime while under the influence of a drug or were motivated to steal property or deal to support their habit.

Prison can act as a risk multiplier

Drug dependency is a pathway to other alienating risk factors like school exclusion, unemployment, family break up, poverty and marginalisation that are themselves potent risk factors of ill health and crime. In this way the criminalisation of drug users can be a pathway by which young people growing up in a family and environment displaying few risk factors can acquire a host of them. Prison multiplies risk factors in raising the odds against a released inmate securing employment or securing insurance essential to run a business, and in boosting the likelihood of contracting blood borne diseases, suiciding upon release, running up drug debts and re-offending. In spite of the paternalistic motivation of drug laws, it is hard to think of any other law or policy that does more to undermine the capacity of people to take responsibility for their own lives and those of people dependent on them.  It is the most pernicious form imaginable of nanny state overreach.

Health and social impacts of drug policy can echo down generations, leading to a dynasty of lost opportunity and disadvantage. Through the proliferation of risk factors and undermining of protective factors, it is fair to say that drug policy is implicated in most if not all of Australia’s most intractable, chronic and costly social problems, not least child protection. The submission by The Australian Association of Social Workers for the Special Commission of inquiry into Child Protection Services in NSW drew attention “. . . to the limited public concern about the plight of young people leaving care and a ‘silence’ that reflects the powerlessness of this small group who is significantly over represented in studies on homelessness, drug and alcohol misuse, poor mental and physical health, poorer education and employment, juvenile prostitution, crime and early parenthood.”

The costs of these health and social harms have been only partially quantified. In 2004/05, the impact of crime costs on state budgets was estimated to be $3.97 billion. The Study could not separately identify any crime costs of illicit drugs impacting on the federal government. The same study estimated health costs attributable to illicit drugs to be $202 million, a small fraction of the $2 billion attributable to alcohol.

Thanks to the stubborn refusal of corrections officers and politicians to countenance the provision of sterile syringes in prisons where illicit drug taking is endemic, hepatitis C (HCV) infection is rife in prisons. This also risks a breakout of HIV as well as HCV infections into the community, imposing huge costs on the health system. In 2008 terms it cost $13,665 if a liver transplant was involved.  Were Australia to follow the example of countries like Portugal and Switzerland we would see fewer drug dependent people in prison and a serious public health threat largely circumvented.


Enforcement has proven ineffective in reducing consumption

Time and again drug law enforcement has shown itself to be ineffective in shielding the community from illicit drugs. In 1951 the consumption of heroin in Australia (as an analgesic and additive to patent medicines like cough mixtures) was 5.25 kg per million. By 1999, from conservative estimates published in August 2001 in a commentary by the National Crime Authority, Australians were consuming about 35kg per million – all of it illegal. Long standing household surveys have revealed the emergence of additional illicit drugs like crystal meths. Wastewater Surveys now confirm that use is flourishing in the Australian community.

Sadly, law enforcement agencies con themselves, their political masters and their funders that the often large seizures that they are making represent a tangible benefit to the community and a return on what governments have spent on them. The Australian Federal Police encapsulates this in its Drug Harms Index which it describes as representing “the dollar value of harm that would have ensued if illicit drugs seized at the border had reached the community.” In other words the more drugs seized, the more successful law enforcement appears to be but, according to Sutton and James, seizures “reflect more upon levels of law enforcement activity than they do ratios of interdiction and reduction”.

In 2001 the National Crime Authority contradicted the then government’s narrative that drug law enforcement was suppressing the drug trade and was taken to propose that the government reconsider its rejection of a trial of heroin assisted treatment. For its pains it was disbanded.

As fishing regulators know, the more fish caught the healthier the fish stock. A rabbiter that reported a large or increasing rabbit catch would worry the farmer; a rabbit plague is on the way. If drug law enforcement were successful one would expect to see the level of seizures decline to nothing. The drug harms index is thus, more often than not, a measure of policy failure rather than success. Families and Friends for Drug Law Reform has, in submissions to parliamentary inquiries, long stressed the value of applying market indicators of price, purity, availability and of course seizure in monitoring the success of drug law enforcement.

Bill Bush, formerly an international lawyer in the Department of Foreign Affairs and Trade, is currently president of Families and Friends for Drug Law Reform, of which he has been a member since the latter part of 1995.

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