The 'drug policy ratchet': why do sanctions for new psychoactive drugs typically only go up?
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FOR DEBATE doi:10.1111/add.12406
The ‘drug policy ratchet’: why do sanctions for new
psychoactive drugs typically only go up?
Alex Stevens1 & Fiona Measham2
School of Social Policy, Sociology and Social Research, University of Kent, Medway, UK1 and School of Applied Social Sciences, Durham University, Durham, UK2
ABSTRACT
It has been much more common for drugs to be subjected to tighter rather than looser control as drugs and evidence
about their effects have has emerged. We argue that there is in place a drug policy ratchet which subjects new
psychoactive substances (NPS) to increasing control through the continuation of historical patterns that involve the
attribution to emerging drugs of guilt by three different kinds of association: guilt by deviant association; guilt by
lunatic association; and guilt by molecular association. We use our contemporary ethnographic experience of drug
policy-making to show how these processes continue to be applied to policy on NPS, alongside selective, narrative use
of evidence and the ‘silent silencing’ by absorption of the concept of evidence-based policy. We show that the drug
policy ratchet cannot be justified as an example of the precautionary principle in action, as this principle is itself not
rationally justified. We conclude that recognition of the drug policy ratchet and its mechanisms may help researchers
and policy-makers to improve regulation of NPS.
Keywords Novel psychoactives, policy, drug.
Correspondence to: Alex Stevens, School of Social Policy, Sociology and Social Research, University of Kent, Medway Campus, Chatham Maritime,
Medway ME4 4AG, UK. E-mail: a.w.stevens@kent.ac.uk
Submitted 11 April 2013; initial review completed 3 June 2013; final version accepted 4 November 2013
INTRODUCTION dangers of various substances. We note that there is, in
effect, a ratcheting process which means that substances
The rapid emergence of a profusion of new psychoactive labelled as drugs are likely to face tighter rather than
substances (NPS) in recent years has led to increased looser control. Some seasoned observers of the drug
interest in the process of drug scheduling and control, policy scene may think that the existence of this
much of it reflected in the pages of this journal [1–4]. A ratcheting process is obvious. However, this has been dis-
common response to these new drugs in the United puted by researchers, politicians and commentators who
Kingdom has been to include them in the existing legis- have argued that drug control decisions do not tend
lative system for control, as shown in Table 1. Whatever towards increasing control and are genuinely reflective of
the benefits of this type of control, it is not without harm. scientific knowledge on harms [4]. Alternatively, it could
It makes criminals of the substance’s users and also be argued that the British downward scheduling of can-
hinders research on its potential effects, both harmful nabis to class C of the Misuse of Drugs Act (MDA) in 2004
and therapeutic. In political discussions, there is a ten- showed that there is no ratcheting process; but even a
dency both to ignore the potential benefits of new sub- heavy-duty ratchet can slip under load. This slippage was
stances and to underestimate the harms related to soon wound back, with cannabis put back into class B in
prohibition. In academic journals, the debate has focused 2009.
upon whether a rational, scientifically informed control In recent years, the ratchet has been extended by
mechanism can be developed for NPS, and what form it the practice of banning generic classes of substances
would take. (e.g. synthetic cannabinoids and the substituted
In this contribution for debate, we argue that both cathinones) instead of individual substances, with
historical analysis and contemporary experience suggest modern generic control first applied in the United
that drug control cannot be understood fully as a Kingdom in 1977 to the phenethylamine family [which
rational, scientific response to the prevalence and includes 3,4-methylenedioxy-N-methylamphetamine
© 2014 Society for the Study of Addiction Addiction, 109, 1226–1232The drug policy ratchet 1227
Table 1 Changes to drug classification under the Misuse of Drugs Act (MDA) 1971 and Drugs Act 2005.
Changes that have increased penalties Changes that have reduced penalties
Selected drugs that have been placed under Drugs that have been moved Drugs that have been taken out Drugs that have been moved
control by MDA or Drugs Act since 1971 to a higher class in MDA of control by MDA since 1971 to a lower class in MDA
Phenethylamines, including MDMA Methaqualone (from C Propylhexedrine (removed Nicodicodine (from A to
(into class A in 1977) to B in 1984) from class C in 1996) B in 1973)
Anabolic steroids (into class C in 1996) Methylamphetamine Cannabinol and its
(from B to A in 2006) derivatives (from A to
C in 2004)
Unprocessed fungi containing psilocin or Cannabinol and its Cannabis (from B to C in
its esters (into class A in 2005) derivatives (from C to 2004)
B in 2008)
Ketamine (into class C in 2006) Cannabis (from C to B in
2009)
Gamma-butyrolactone (into class C in Pipradrol (from C to B in
2009) 2012)
Synthetic cannabinoid agonists
(into class B in 2009)
Piperazines (into class C in 2009)
Substituted cathinones (into class B in
2010)
Substituted pyrovalerones (into class B
in 2010)
Generically defined pipradrol derivatives
(into class B in 2012)
Methoxetamine and generically defined
analogues of ketamine and
phencyclidine (into class B in 2013)
Khat (into class C, decided in 2013)
Based on Appendix 1 of King [39], with more recent additions. MDMA = 3,4-methylenedioxy-N-methylamphetamine.
(MDMA)]. The introduction of temporary class drug Measham), reveals some of the ways in which the policy
orders (TCDOs) has added a further tool to the process of process most often continues to exemplify MacCoun’s
ratchet-tightening. This drug policy ratchet operates even ninth implicit rule of evidence use in drug policy [8]:
when evidence emerges that tight control is failing to ‘Scientific research on drugs cannot motivate a change
reduce related harms [5], or is producing unintended from tough law to lenient law, but it can motivate a
harms that are disproportionate to the benefits of control change in the opposite direction’.
[6]. Less discriminate extension of control through the
use of generic bans is even more likely than the banning
HISTORICAL PATTERNS OF CONTROL
of individual substances to have the disadvantages of
preventing research on beneficial uses and of pushing the If we look at the decisions that have been taken on drug
market towards unknown, potentially more harmful sub- control under the MDA (see Table 1), then it is clear that
stitutes [7]. Generic bans and TCDOs may also make it it has been much more common for drugs to be moved
even more difficult to loosen control. It would be very into than out of the classes of control, and for them to be
difficult to demonstrate scientifically that a whole group moved up classes and schedules than down. Often this
of substances pose a lower risk than suggested by their has been in accordance with recommendations of the
initial classification. It would be difficult politically to ACMD, but it is worth noting that the only occasions on
avoid permanently prohibiting a drug that had been which the UK government has explicitly ignored the
subject to a TCDO. advice of the ACMD—on cannabis in 1978 and 2008,
The historical work of David Courtwright, James Mills MDMA in 2009 and khat in 2013—the effect has been to
and others shows some of the past mechanisms of this subject a substance to a higher level of control than was
ratchet. Our more recent ethnographic observations of recommended by the Council. We suggest that the regu-
UK policy, both in the civil service (Stevens) and on the lation of novel psychoactive substances should be under-
Advisory Council on the Misuse of Drugs (ACMD; stood in the context of the history of drug control. We
© 2014 Society for the Study of Addiction Addiction, 109, 1226–12321228 Alex Stevens & Fiona Measham
argue that this reveals a pattern in which some psycho- task of arguing for a re-tightening of the ratchet. This
active products have been prohibited on the basis of guilt was frequently exemplified by journalists and campaign-
by various kinds of association. We further argue that ers using stories of middle-class young men whose
this pattern of increasing control cannot be justified, as schizophrenia followed their cannabis use to argue for
proponents of increasing control (particularly of NPS) reversal of the declassification. The increase in the THC
often attempt to do, by the precautionary principle. content of cannabis was often overstated in this debate
The early steps in classifying and prohibiting psycho- [15]. While the evidence for an association between can-
active substances as drugs were driven by an alliance of nabis use and mental illness and other harms has become
moral entrepreneurs and social progressives who wished stronger since Warnock’s time [16,17], questions remain
to tame the emerging, globalized markets for intoxicating about causality [18]. In justifying its decision to over-rule
substances [9], but not all such products were subjected the ACMD in 2009, the government referred again to the
to expanding control; tobacco and alcohol were treated as mental health risks of cannabis use, despite the repeated
exceptions. The substances that have been included in ACMD reviews finding these risks insufficient to justify
drug control have been those considered to be guilty by upwards re-classification. Once again, cannabis had been
deviant association, lunatic association, molecular asso- found guilty by its association with mental illness rather
ciation or a combination of the three. than a robust evidence base of significant harm.
The substances that were first banned, both in the Such guilt by lunatic association is a different mecha-
United States and the United Kingdom, were those that nism to guilt by deviant association, although both may
were associated with use by groups who were considered operate in tandem for some drugs. Under the latter
as deviant from the perspective of the white, Protestant mechanism, a drug is banned when its use is associated
elite who focused on the perceived threat from minority with a group that is already considered to be deviant by
ethnic migrants and their ‘alien’ traditions [9–13]. This those in authority. Under the former, a drug is banned
pattern of prohibition of substances that are associated when it is thought that its use produces mental illness in
with foreign ethnicities and deviant subcultures contin- people who were not previously ill; perhaps especially
ued throughout the 20th century. As an example of the when this illness is observed in the children of powerful
latter, the British government has repeatedly refused to social groups, as exemplified in some of the media
loosen control of MDMA, in contradiction to ACMD rec- coverage that preceded the 2009 re-re-classification of
ommendations. This has been the favourite drug of the cannabis.
rave and dance scene from the late 1980s onwards [14], Some substances have been banned without evidence
with rave being the only musical genre ever to be that they were being widely used, or that they were par-
criminalized in the United Kingdom (in the Criminal ticularly harmful, but on the basis of their similarity to
Justice and Public Order Act of 1994). Most recently, the other banned substances. The 1912 International Opium
government has ignored the ACMD’s recommendation Convention (Article 14) banned all new derivatives of
not to prohibit khat. This provides another example of opium, morphine and cocaine if they were ‘shown by
banning a substance through a process of guilt by research, generally recognised, to be liable to similar
deviant association, whose use is associated with a abuse and productive of like ill-effects’. However, current
marginalized, migrant group. control systems do not always wait for such evidence to
The prohibition of drugs is usually justified on the emerge before banning new substances and derivatives.
basis of their health harms. In the case of cannabis, this For example, substituted pyrovalerones (e.g. naphyrone)
argument has focused on the harms to mental health. were banned in 2010 in the United Kingdom just weeks
This was a particular issue in the inclusion of cannabis in after the substituted cathinones (e.g. mephedrone).
the regimes of control that were established by both the Methoxetamine was banned in 2013 along with similar
1925 Geneva Opium Conference and the 1961 Single compounds. These generic controls were not introduced
Convention. As Mills [11,13] has shown, both decisions on the basis of evidence of significant existing use or
were informed by highly dubious data from Dr John harm, or even of desirability among users [19]; nor were
Warnock, the British colonial administrator of the Egyp- these NPS controlled, because they could be used as pre-
tian Lunacy Department from 1895 to 1923. More cursors to known illicit drugs. Rather, generic bans have
recently, in 2009, the use of the association between can- been motivated by a presumption of harm through a
nabis and mental health has been used to reverse the pharmacological comparison with other controlled sub-
2004 downwards classification of cannabis. The 2004 stances, their relative potency and effects. For example,
change is listed in Table 1 as one of the recent exceptions the ACMD review of naphyrone noted that it has a very
to the rule of tightening control. The link between similar molecular structure to mephedrone, which had
the emergence of higher tetrahydrocannabinol (THC) already been banned. The Chair’s foreword stated that
‘skunk’ cannabis and psychosis was soon recruited to the ‘the harms associated with naphyrone closely equate
© 2014 Society for the Study of Addiction Addiction, 109, 1226–1232The drug policy ratchet 1229
with compounds such as mephedrone’. Naphyrone was policy has been to support rather than to challenge the
described as a more potent form of cocaine: ‘[n]aphyrone currently dominant policy discourse [24]. As noted by an
may have a “cocaine-like” profile, but with approximately early critic of the MDA [25], ‘political parameters delimit
ten times higher potency than cocaine’ [20]. In the the possible universe of discourse for what purport to be
ACMD review of methoxetamine, not only was it charac- open-ended scientific debates’.
terized as a more potent form of the Class C dissociative The narrative that evidence is often selected to fit is
anaesthetic ketamine, it was also compared with phency- one of toughness. During the ethnographic study by
clidine (PCP or Angel Dust, a Class A drug withdrawn Stevens, frequent use was made of the word ‘totemic’ to
from use as a human dissociative anaesthetic); yet the describe policies that showed the government to be tough
conclusion to the ACMD review acknowledged the lack of in its quest to protect the public from harmful people and
harm in that methoxetamine ‘does not seem to be a drug substances. This desire to use drug policy to send a tough
of choice; it is not particularly prevalent and is not a message has frequently informed drug classification deci-
crime generator’ [21]. Despite the acknowledged lack of sions, including the swift passage of legislation banning
evidence of significant existing use or harm, whole substituted cathinones in April 2010. This was given
groups of chemical compounds have been identified and cross-party support fewer than 3 weeks before a general
controlled through generic bans in a process of guilt by election. Indeed, while many liberal commentators criti-
molecular association. cized the ‘pre-election prohibition fast-track’ [26,27], the
criticism from the Conservative Opposition was that
action had been taken too late [28]. The ACMD recom-
PATTERNS IN CONTEMPORARY
mendation was pre-empted both by the national press,
POLICY-MAKING
reporting that a ban was ‘likely’ [29], and by the Labour
The history of drug policy-making shows that decisions Prime Minister, who declared that once he heard the
on drug control have not resulted solely from dis- ACMD’s advice he would ‘take immediate action. We are
passionate analysis of relative harms. Instead, it reveals determined to act to prevent this evil from hurting the
consistent patterns of thinking about the control of young people of our country’ [30]. It is this type of politi-
psychoactive substances. Our experience of working with cal rhetoric that would make it so difficult to reverse a ban
policy-makers shows some continuing systematic influ- made under a TCDO.
ences on evidence use in policy-making that tend to Of course, the narrative of ‘totemic toughness’ is not
support the drug policy ratchet. Some of this experience the only one that is told in policy discussions. There is also
has been published by Stevens [22] in a paper which the narrative of evidence-based policy; but what happens
called attention to the use of ‘killer charts’ to boost the when the evidence conflicts with the desire to appear
persusiveness of narratives in policy documents. Evi- tough? It is worth reflecting here on the work of Thomas
dence was often selected for use on the basis of whether or Mathiesen [31]. He coined the phrase ‘silent silencing’ for
not it supported the existing direction of policy. the processes by which inconvenient truths are diverted
One example of the selection of persuasive evidence is from impacting on policy. One of these processes, which
a graph that was shown at ACMD and other NPS meet- Mathiesen calls ‘absorption’, occurs when an alternative
ings after the ban on mephedrone. This graph showed a vision that opens up possibilities of long-term fundamen-
trendline of mephedrone-related deaths, with rapidly tal change is accepted in name and partially in practice,
escalating deaths in the months leading up to legislative but is then set to the task of continuing the existing
control and a sharp decline thereafter [23]. This ‘killer system of control. This can be seen in the absorption of
chart’ fitted the narrative that prohibition immediately the idea of evidence-based policy-making in the field of
reduces drug-related deaths by reducing availability and drug policy. Evidence is often called upon to provide jus-
use. The fall in these deaths is welcome, of course. tifications for drug control decisions. However, decisions
However, this graph does not contextualize this fall in in the last decade on cannabis, MDMA and khat show
wider trends, such as the potential displacement of that politicians sometimes choose to ignore the recom-
mephedrone users to other substances—some of which mendations of independent experts, despite their pledges
may be more harmful (e.g. cocaine, MDMA potentially of allegiance to evidence-based policy. Please do not read
adulterated with PMA)—and of the creation of an illegal this paragraph, or indeed this paper, as a plea for scien-
market for mephedrone, with other attendant risks. Nor tists to be left alone to make policy decisions without ref-
can it take into account other potential causes of a reduc- erence to the democratic process. Please do note the way
tion in mephedrone-related deaths, such as adulteration in which political rhetoric absorbs and reproduces the
of mephedrone with other, less harmful NPS or improved demand for evidence to be respected, while political prac-
clinical responses to mephedrone-related casualties. With tice continues to insert other, unacknowledged interests
this graph and other examples, the role of evidence in into the process of decision-making.
© 2014 Society for the Study of Addiction Addiction, 109, 1226–12321230 Alex Stevens & Fiona Measham
We have observed these biases in operation in discus- preference that is too often taken for granted. It deserves
sions of drug policy, with their cumulative impact being more examination.
the tightening of the drug policy ratchet. The conflict
between the commitment to totemic toughness and
CONCLUSION
the application of evidence-based policy is particularly
noteworthy. When the evidence base (as distilled by Both historical analysis and contemporary ethnographic
the ACMD) points to less toughness it is usually experience suggests to us that the metaphor of the
absorbed, but ignored, as anticipated by MacCoun’s ratchet is a useful device for understanding developments
ninth law. in drug control and classification decisions. Legislative
control tends to be tightened. Occasionally, the ratchet
slips and a drug moves down a class. The ratchet can then
THE PRECAUTIONARY PRINCIPLE
be re-tightened in due course.
IN ACTION?
Of course, illicit drugs are not the only area of govern-
It could be argued that the banning of substances which ment policy where irrational decisions, often involving
are yet unknown and unused is justified under the pre- the precautionary principle, are taken on the regulation
cautionary principle, and so does not reflect systematic of risk. We have suggested that the drug policy ratchet
bias in policy-making. This is indeed the argument that cannot be justified or explained by invoking the precau-
has been used by successive UK Home Secretaries, includ- tionary principle. As an explanation, the precautionary
ing Jacqui Smith in her decision to ignore the ACMD principle only throws us back to the preferences that it is
recommendation that MDMA be reclassified downwards used to support; preferences which themselves are in
to class B. It was also invoked by a junior minister with need of justification and explanation. We suggest that, in
responsibility for drug policy in his statement justify- the field of drug policy, these preferences involve various
ing the 2013 banning of O-desmethyltramadol. Jeremy forms of bias which produce long-standing tendencies to
Browne said: ‘[t]he drug has not yet been detected in the criminalize users of substances that become associated
United Kingdom, but there is compelling evidence of with stigmatized groups, with mental illness or with
the potential threat that it poses. We want to control chemically similar substances that have been banned
the drug as a precaution, to protect the United Kingdom already. In addition, there are patterns of speech and
public from its harms’ [32]. The precautionary prin- action within the contemporary ‘thoughtworld’ [36] of
ciple is used by politicians as a justification for generic civil servants and politicians that tend to extend, rather
controls, TCDOs and for control of specific NPS which than limit, the scope of legislative control of NPS. When
are not yet producing significant harm in the United evidence conflicts with the preference for toughness,
Kingdom. toughness is likely to win, despite rhetorical commit-
However, Cass Sunstein has pointed out a substantial ments to evidence-based policy. This is evident in, among
problem with such use of the precautionary principle in other developments, the shift to TCDOs and generic con-
public policy; it can be used to justify both sides in argu- trols in the United Kingdom, compared with a shift
ments on regulation and therefore promotes both action towards alternative regulatory models in response to
and inaction simultaneously [33]. As this is the case, the NPS, as has happened—for example—in New Zealand
precautionary principle does not provide a rational justi- [37]. We suggest that these biases, which we have
fication for the operation of the drug policy ratchet. For observed among civil servants and other policy-makers in
example, the prohibition of a NPS may have the effect of our work with them, help to explain the tightening of the
fulfilling a precaution against harms that arise from use drug policy ratchet in ways that the precautionary
of that substance (assuming that prohibition actually principle cannot.
reduces use), but it may also have the effect of producing The policy-making process is essentially complex and
the known harms of prohibition [6,34]. Therefore, it contested [38]. We have discussed just a few of the
would also be possible to use the precautionary princi- mechanisms that produce the ratchet of drug control
ple’s blocking of actions that may produce harm to argue and have not discussed in any detail, for example, the
against prohibition. As Peterson has pointed out in a conditions under which it slips (as for cannabis in
more formal, logical demolition of the precautionary 2004). This slippage suggests that ratcheting is not a
principle [35], arguments that are put forward on the fully determined, inevitable process. It can be contested
basis of the precautionary principle usually rest on mere by a range of researchers, writers and campaigners.
‘epistemic preferences’; in this case, the preference to They can put load on the ratchet and grease in the
attempt to keep new drugs away from young people works. We suggest that recognition of the ratchet
rather than to exploit the research, therapeutic, pleasure- and some of the ways in which it works can help us
producing and tax-earning potential of NPS. This is a to use evidence and public deliberation to fit drug
© 2014 Society for the Study of Addiction Addiction, 109, 1226–1232The drug policy ratchet 1231
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