Correction Class- Criminal Justice Class

Zero Tolerance, Naming and Shaming: Is There a Case for it with Crimes of the Powerful? John Braithwaite and Peter Drahos

Australian National University, Australia

Zero tolerance and public shaming are increasingly advocated for bothcrimes of the powerless and crimes of the pov^erful. In this essay we argue against zero tolerance with respect to both kinds of crime. However, we defend naming and shaming with respect to crimes of the powerful. Part I of the paper begins from the assumption that both zero tolerance and naming and shaming are policies that do not merit serious consideration with crimes of the powerless. It then goes on to consider harder questions: first whether zero tolerance and then naming and shaming have a place with crimes of the powerful. Drug abuse is used in Part II as a case study to explore these distinctions. It will be contended that zero tolerance is a prescription for increasing drug abuse, but that naming and shaming is essential to the prevention of drug abuse. This conclusion is reached by viewing the drug problem differently from conventional criminological analyses in a radically reconfigured context as a corporate crime and organisational regulation problem.

Part I

The New Politics of Crime Public shaming of criminals as by putting a sign on a fence saying an assaulter lives here, Megan's Law, a bumper sticker saying I am a drink driver or a T-shirt saying I am a thief are part of a new politics of crime in the United States (US) that has had some influence in other countries including Australia (Pratt, 2002). Prime Minister Howard has said he believes in zero tolerance to the point of advocating automatic expulsion of dope smokers from school. It is hard to think of any policy better calculated to increase crime than automatic expulsion from school, with all the Stigmatisation that involves, for minor offences. Even though zero tolerance is

Paper to Australian and New Zealand Society of Criminology Conference, 30 September, 1999, Perth. Portions of this paper appear in an earlier version in Global Business Regulation (Braithwaite & Drahos, 2000).

Address for correspondence: Professor John Braithwaite, Research School of Social Sciences, Australian National University, Canberra, ACT 0200, Australia. Email: john.braithwaite @anu.edu.au

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an incoherent, uncivil and dangerous criminal policy (Dixon, 1999; Cunneen, 1999), there are aspects of its vaguely specified set of prescriptions that might actually reduce crime in the context of large US cities. The main one is reducing homicide by targeting gun carrying at the hot spots where the majority of serious crimes occur.

The new politics of criminal justice does tap an underlying truth that in order to create a society with less violence, we do want a society where people are ashamed of violence. The problem with zero tolerance and public shaming is that they leap from that truth to policies that stigmatise and degrade, even for minor incivilities on the street. It is not simply that stigmatisation is a less effective way of making people feel ashamed of wrongdoing than reintegrative shaming; it actually makes them feel less ashamed. It is not that respectful disapproval within commu- nities of care works while stigmatisation does not; stigmatisation actually increases crime. Restorative practices pave the more productive path to inducing the remorse, constituting the sbamefulness that prevents crime (and averting the humiliation that causes it) than zero tolerance.

But how are we to react to the entreaties from the progressive side of politics for zero tolerance, naming and shaming? How do we think about the critic who says to John Howard that he ought to apply his philosophy o( zero tolerance to his parlia- mentary ethics code, to members of his party who fiddle their expense accounts? How do we respond to Steve Biko's family's assertion that it was unjust for the Truth and Reconciliation Commission to extend forgiveness to so many criminals of apartheid in the name of restorative justice? In the context of East Timor, how are we to respond to pleas for zero tolerance for crimes against humanity? What do we think of the feminist who says "no excuses ever, ever" for violence against women? Or who advocates shaming punishments for campus date rapists (Baker, 1999)?

ZERO TOLERANCE OF ORCANISATIONAL CRIME? In this section we will address only one kind of public advocacy of zero tolerance and public shaming — that which we see in the corporate crime literature. Our conclusion will be that zero tolerance is always a bad prescription in this arena, but that naming and shaming is often a necessary part of an effective criminal policy.

Each year between 1985 and 1995, when one of us was a part-time commis- sioner with the Trade Practices Commission, the commission would receive around 50,000 complaints. Many of them did not involve breaches of the law, but in our opinion the majority did (obviously an opinion we cannot prove). In a good year the commission would take about 30 of them to court. Most business regulatory scholars see the Australian Trade Practices Commission as a comparatively tough agency, with a sophisticated enforcement strategy that makes the business commu- nity sit up and take notice (see Ayres & Braithwaite, 1992; Yeung, 2001).

A lot of the effectiveness of the TPC then and the Australian Competition and Consumer Commission today is about the sophistication of its triage: 1 ) This case is an allegation we can help the complainant sort out with a bit of advice as to what they should say to the trader. Or it is an allegation we can sort out ourselves with a couple of phone-calls or a conference with the principals to negotiate an informal settlement. 2) Another complaint is viewed as spurious or a hard allega-

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tion to prove and impossible to settle; the complainants are advised "no action"; they are welcome to take a private action. 3) This is one of the 30 we should take to court.

The key is to select those 30 cases so that they send out the widest possible ripples. The main significance of the cases the commission had the resources to litigate was not what they achieved in those 30 cases, but in the clout they deliver to the regulator to settle thousands of other matters on the strength of a single phone-call. Australian consumers in the long run get better protection from a regulator that vigorously litigates a modest number of strategic cases than from one that pretends to be doing something about every breach of the law that arrives in its mailbag.

Yet whenever the commission considered between 1985 and 1995 that it should be completely honest with the Australian people that this was its enforcement strategy, it would resist going far down this track. It did not want Ministers complaining that the commission was failing to prosecute large numbers of traders who had committed clear breaches of the criminal law. Commissioners were all sophisticated enough to understand that it never could be otherwise, but they could not count on the tabloid press to so view it.

We will not labour here the conclusion that zero tolerance is an irresponsible policy for the A C C C or any other business regulatory agency because Ayres and Braithwaite have done that in Responsive Regulation (Ayres & Braithwaite, 1992). It is hardly necessary in a world where we are regularly plied with stories that " 5 % of all trading on the Australian stock exchange involves a criminal use of insider knowledge" (Coodfellow, 1999) that 14% of the Australian economy is a shadow economy where each transaction involves multiple criminal offences to avoid company tax, payroll tax, personal income tax and obligations to take out workers compensation insurance (Schneider & Enste, 1999'). We cannot aspire to put 14% or more of the Australian population in jail.

Some might say that we basically buy your argument there, but with some really serious matters like the safety of nuclear reactors, we must have zero tolerance. The evidence does not bear that out. Joe Rees's ( 1994) research shows that over the last 20 years, some lessons of disasters like Three Mile Island have been learnt. The most important one is that you do not want operators to be rule-following automa- tons as a result of a tough regime of regulatory enforcement. You want them to be thinking systemically as team players about problem prevention, not about protect- ing their backside against a prosecution. After Three Mile Island, US nuclear safety regulation became more responsive, and a more communitarian industry-wide approach to self-regulation was adopted. Rees' empirical work also found a lot of reintegrative shaming within the industry, more than stigmatisation, when things went badly. Plants which had above average numbers of automatic shut-downs for safety reasons were treated with respect and helpfulness. This restorative approach to nuclear regulation sees SCRAMS (automatic shut-downs for safety reasons) today in the US industry running at less than one-tenth the rate that they were at the time of Three Mile Island (see Braithwaite &. Drahos, 2000, chapter 13).

Air safety is another example. One of the reasons commercial air travel is comparatively safe today is that when pilots breach a safety rule they can report

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this in confidence without fear of prosecution. Their case becomes part of industry learning and is widely disseminated, but without their name attached to it.

But what about the most morally repugnant crimes of the powerful such as genocide and other war crimes? Zero tolerance in this arena could be a policy guaranteed to deliver just deserts to the lieutenants in the Timor militias and impunity for the more malevolent criminals in Djakarta. Or consider the war crimes of the Second World War committed in that part of the world. As a matter of law, it is likely that Emperor Hirohito was criminally responsible for some of the war crimes that occurred in Asia and the Pacific during the Second World War (Bix, 2000). It also seems clear today that there were junior Japanese officers who did hang as innocent scapegoats, possibly even on the testimony of Australians who were survivors because they were collaborators with the Japanese. A policy of zero tolerance for serious war crimes would standardly see rough justice for the minnows, impunity for the sharks (on the evidence for scapegoating see generally Eisse & Braithwaite, 1993). Better to be principled about it, as Ceneral Mac Arthur was in resisting the Australian government's pleas for the execution of Emperor Hirohito. In extending restorative justice to Hirohito, just as in the réintégration of Germany by the Marshall Plan and other acts of grace, the Americans showed a wisdom in building a peaceful Japan and Cermany that the allies failed to show at Versailles.

Hence with every kind of organisational crime, especially the most dangerous and evil, zero tolerance is an irresponsible policy. Its utter irresponsibility is now recognised with the 120,000 who have been awaiting genocide trials in Rwanda for 8 years.

NAMING AND SHAMING OF ORGANISATIONAL CRIME If zero tolerance is a pie in the sky policy for dealing with the crimes of East Timor, is naming and shaming? Decidedly not. John Howard named the Indonesian military and Ceneral Wiranto. He even did something Australian Prime Ministers never do. He shamed President Clinton after his announcement that the US was cutting military ties to Indonesia: Howard pointed out that this would cost $700,000, that he was looking to the President to do more in terms of diplomatic and military support for a peacekeeping operation. In all of this naming and shaming, Howard was impeccably respectful as were Mary Robinson and John Dowd in their constructive interventions in the public debate foreshadowing the prospect of strategic criminal prosecutions ofthe Indonesian military. Not all ofthe denunciation of Indonesia was in the respectful style these actors maintained. Stigmatising modalities of shaming — verbal abuse, flag and effigy burning — maximise the risks of counterproductivity. Indonesians reported feeling especially stigmatised by aspects of the "victory parade" held for returning Australian troops. Kay Pranis (1999, p. 9) has captured well what restorative justice advocates should regard as preferred practice here:

Traditional social justice activism often involves confrontational approaches to advancing social justice issues — naming and attacking social injustice. That approach is sometimes adversarial, involves emphasising distance or 'otherness' of those who hold different views, is often framed around abstract intellectual questions of rights, and may seek to achieve its agenda through power over opposing forces.

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Restorative justice includes concerns about social justice issues but relates to those issues in a different way. Restorative justice holds a vision of mutual responsibility for the welfare of everyone and uses personal narratives in a non-confrontational exchange to build from individual experiences to an understanding of broader social needs or harms.

While this is preferred restorative justice practice (and what should have happened in East Timor decades ago), rights discourse that names responsible actors is needed when restorative justice fails, as it often will. Yet even when it does, we still need to heed Pranis's message about trying to avoid "otherness", seeking to persuade through non-confrontational exchange that communicates concern via narrative rather than moral categorisation of the other.

To a degree any kind of naming and shaming is stigmatising. That is why we have sensible policies about not conducting juvenile court proceedings in public or releasing the names of young offenders. Why is it wrong to name and shame them, but right to do so with BHP when it refuses to listen to concerns about polluting the Ely River? Why should we be against mug shots in the newspapers for street criminals, but in favour of this when it is the CEO of BHP? Why does it make sense to call a press conference as one of the outcomes of corporate crime restorative justice conferences, but not with conferences for common crimes?

Nathan Harris's (1999) analysis of the RISE conferencing data shows that shaming by people the offender does not respect fails to induce shame. Indeed, the only shaming that induces shame is disapproval of the act by those who we respect very highly. Just respecting them a bit is not enough. So shaming by police, judges and mass publics who read newspapers is mostly beside the point. When we name and shame Bill Clinton for allowing slaughter of the innocents in East Timor, our target is Chelsea and the rest of his extended family, his secretary, his golfing buddy and so forth. The same targets as in a restorative justice conference. The difference is one of technique more than substance. The need for it arises from certain reali- ties of political and economic power. Presidents hire public relations professionals to render them invulnerable to shame. Their worst political enemies will regard their conduct as shameful no matter what they do. But the opinions of enemies are not at issue here. Chelsea's is. Most of the time, Chelsea is going to buy the cover story manufactured by the President's spin doctors and give her dad the benefit of the doubt. Most of the cut and thrust of politics will deliver very little shame from people whose respect the President deeply cares about.

Public but respectful naming and shaming is the best we can do with Presidents. It mostly will not work because politicians, like hardened criminals, are profession- als at erecting shields to protect themselves from shame. When it does work, our hypothesis is it works mostly through placing a story of human dimensions on the media that touches the heart of a Chelsea Clinton, that causes someone like her to say, "Dad you must pay attention to this story". Again the psychological principles are the same as with the juvenile offender's conference. The nun's simple narrative of the suffering she saw as a result of the war crime has infinitely more power than saying shame on you for causing this crime. But the difference is that the juvenile offender does not have a PR person sitting beside her saying, "Yes it is terrible, but here is why there is nothing my President could have done to stop it." That is why

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public naming of a responsible person with political power (of the sort that Howard did with Clinton over East Timor) is often a moral imperative.

These arguments have even more power with the economic crimes of large corporations. The empirical literature demonstrates that white-collar criminals have incredibly effective power in segregating audiences. In their business dealings, they have a ruthless, exploitative ethos, while at their church on Sunday the members of their congregation view them as a paragon of gentility. The other side of this is that white-collar criminals report the experience of great shame when this segregation of audiences breaks down as a result of a criminal convic- tion reported in the newspapers (see Benson's, 1989, interviews with convicted white-collar criminals).

Powerful corporate players have the same PR experts by their side as Presidents and they enjoy greater anonymity' than Presidents when wrongdoing occurs. Hence the booming market for reputation assurance consultancies that are provided at the top end of town by firms like PriceWaterhouseCoopers. It is these realities of power that often make it necessary to push for a press conference for public corporate confession following a restorative justice conference. Piercing the corporate veil, getting the message through to the members of the CEO's congregation, is therefore the rationale for a variety of naming of shaming policies — from an environmental group publishing a list ofthe Dirty Dozen (the top 12 corporate polluters) to the UK Environment Agency's internet "Hall of Shame" (accessible at http://www.environ- ment-agency.gov.uk), to the Australian Affirmative Action Agency naming compa- nies in the parliament for failing to comply with their act.

There is typically a two-step process with corporate naming and shaming. The corporation is named, then internal compliance systems go to work to define personal responsibility for putting things right. Again, Joe Rees's (1994) work on nuclear safety and the work of one of us on coal mine safety (Braithwaite, 1985) shows how effective internal processes involve a corporate kind of reintegrative shaming. The plant or the mine with a poor accident record is displayed on a graph at a meeting of managers. The person in charge is asked to indicate what he or she is going to do to get his or her safety performance up to the level of other plants. Other managers tend to be nurturant, offering help to the shamed manager: "There but for the grace of God go 1", they think. So as Rees points out, the internal shaming by respected peers tends to be reintegrative. This is an important point. There are structural reasons why even external shaming of the corporation which is stigmatising is likely to be transformed internally into reintegrative shaming within the community of corporate peers. The corporate veil is a device whose very purpose is to protect the wealth and the dignity of the powerful men it shrouds.

While powerless common criminals do not have the structural benefit of a corporate veil, strong families can be a functional equivalent, transforming external stigmatisation into a loving, reintegrative kind of internal disapproval of the act. The trouble is that the worst juvenile offenders are those least likely to have such families; often their families amplify internally the stigmatising messages from outside. Hence with common crime it is irresponsible to promote external stigmati- sation in the hope that it will be transformed into internal réintégration.

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Of course there are other values at issue. One is accountability. The feminist might say that the adult responsible for sexual assault should be named in public because we need assurance that the criminal justice system does not operate to protect powerful men at the expense of children. Yet the restorative justice movement is helping us see that the way western criminal justice systems balance these values is flawed. Here there is much we can learn from Canadian First Nations feminists like Berma Bushdie (1999). She explains that in the remarkable accomplishments of Hollow Water in uncovering sexual abuse that afflicted the majority of children in that community, healing circles were at first confronting and private — for example "getting under the skin" of abusive men with help from other men who had already confessed who assist with piercing their pathetic ratio- nalisations (Ross, 1996). Only at the final stage is there a healing circle which is public to the whole community, at which attendances are very large. By this stage, there has been a lot of healing and forgiveness. Even many of the stoutest advocates of the victims, those who had earlier in the process been the most vigor- ous denouncers of the offender, by the stage of the final circle will be prepared to say positive things about how far the offender had come in owning responsibility for the evil he had done. The Cree wisdom here that our system lacks is to assure the community o{ public accountability for the agreements reached, but to defer the public accountability stage (often for years) until the prospects of a reintegra- tive public ceremony are at a maximum.

In summary, the simple fact is that when a child steals persistently, there is a good chance that this will eventually become known to their parents and/or teach- ers; they will not be able to escape their disapproval. When a senior company executive persistently pollutes, however, there is little prospect of their family finding out about this moral failure. In an unethical company they will even be shielded from disapproval of the moral failure by colleagues at work. Two-step processes of public naming and shaming of organisational responsibility and demanding individual responsibility from leaders is necessary. It is necessary in a way it is not with children because of a social structure of shame that leaves children vulnerable and elites invulnerable to effective disapproval.

So we have already reached the conclusion oí this article. This is that zero tolerance is a consistently bad policy for both crimes of the powerless and crimes oí the powerful. Naming and shaming is a bad policy for crimes of the powerless but can be a strategic policy with corporate or organisational crime. Readers who find the above persuasive might read no further. Part II is an extended working through of the one positive conclusion — that naming and shaming has a role with organisational crime. You may choose to read on, however, because Part II is provocative about the breadth of the relevance of the efficacy of naming and shaming. We will place drug abuse in an organisational crime framework — as opposed to organised crime or individualistic frameworks — to generate the perhaps surprising result that naming and shaming is of fundamental importance as a strategy for controlling drug abuse.

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Part II

CASE STUDY: SHAMING AND THE PREVENTION OF DRUG ABUSE Now we will work through this analysis to show why it is plausible that public shaming is the key to preventing drug abuse. We are not thinking of public shaming in drug courts or any kind of standard individualistic criminological analysis of the drug abuser here. The starting point is a structural analysis of political and corpo- rate power. Then this is combined with Braithwaite's standard analysis of the social structure of shame — that bank robbery is shameful, while the corporate criminals of the finance sector suffer little shame in a world where every criminologist knows the best way to rob a bank is to own it.

Structural Analysis

How do we avert the standard criminological trap of precipitate methodological individualism with respect to drug abuse? If the analytic presciption is to do a struc- tural analysis of power relationships first, what are the power relationships relevant to understanding drug abuse? We have sought to grapple with this task in Global Business Regulation (Braithwaite & Drahos, 2000), where a more detailed treatment can be found.

Mass drug addiction is a phenomenon of late modernity. It took at least 6000 years of the poppy being known to be a "plant of joy", at least 4000 years of inter- national trade in opium (starting with the Cyprus-Egypt trade) before mass addic- tion occurred in China in the second half of the 19th century. Tobacco was used for centuries in South America before it finally reached fashionable Paris in 1556, thanks to the French Ambassador to Portugal, Jean Nicot. In England, James 1 and Charles I were initially censorious of what they saw as the vanity and moral corrup- tion of a nicotine habit. Even so they end up protecting the industry because it becomes economically important, a great new source of tax revenue, and because of the political power ofthe Virginia tobacco lobby (Matthee, 1995, p. 33). Nicotine did not become a drug of mass consumption until 1890 when the Imperial Tobacco Company was on its way to becoming the biggest corporation in the British Empire and Buck Duke set up the American Tobacco Trust. They deploy new technologies of efficient manufacture and administration of the drug through the medium of the compact cigarette which is then sold as avant-garde with modem mass marketing techniques. Trade names like Vanity Eair, Napoleons, Opera Puffs, and High Life tap romantic appeals to different sorts of personal identities.

Cocaine did not become a drug of mass addiction until its mass marketing as patent medicines in the newly popular newspapers and as addictive consumer products such as Coca-Cola (Coca-Cola replaced cocaine with caffeine in 1903). Opium did not become a drug of mass addiction until the modem drug trafficking of the British East India company systematically created a Chinese market by adapting the product to Chinese taste through combining tobacco and opium in a pipe for smoking (to replace opium eating). Here the key to success was an early version of market research more than marketing, though the latter was important too. Later the German pharmaceutical industry adapted its marketing appeal in another important way by synthesising heroin.

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While the 20th-century United States fought trade wars at the GATT to force developing countries to drop restrictions on tobacco imports, the 19th-century British state fought literal Opium Wars to enforce free trade in drugs. One of Germany's hopes for winning War War I was that it would force the Allied powers to drop their plans to ban the international trade in cocaine that was dominated by the giant German pharmaceutical companies.

Alcohol, which can be brewed even in a prison cell, is a partial exception in becoming a drug of mass addiction centuries before modernity. Even there, however, mass addiction really only goes through the roof in the 18th century when gin is mass-produced and marketed cheaply through commercial taverns (Matthee, 1995, p. 44). In earlier centuries in many parts of the world (e.g., Rome, Germany, Africa; Plant, 1997: chapter 2) alcohol production is domestically a responsibility of women and to some degree self-regulated by the moral mission of women to hold families together. Modernity sees commercial taverns hold out the appeal of escaping the regulation of families. The sex industry is substantially co- located with the alcohol industry, a co-location whose latest globalising innovation is table dancing establishments where one must be wary of naked bodies knocking one's drink off the table. The marketing of sex and alcohol mutually reinforce the identity of male as free-ranging stallion. Early modern guilds monopolised mass production and promoted networks of local taverns to distribute their output. Later, private corporations, such as the Scottish whiskey manufacturers, shift gear from national to global marketing, decimating colonised indigenous populations.

With tobacco, opium, heroin, cocaine, LSD, barbiturates and amphetamines, we do not see mass addiction until modernity enables efficient production and distribution by transnationally deployed organisations like tbe British and Dutch East India Gompanies, the American Tobacco Trust, the l.G. Farben Chemicals Cartel, the Coca Cola Corporation, Hoffman-La Roche and the Mafia. Not until we see such organisations use modem market research and modern marketing to create demand do we see the therapeutic drug become the fashionable drug of mass consumption. Indeed, even with alcobol, the majority of the world's population who live away from the urban centres of developing countries still await the arrival of transnational peddlers of alcohol with sophisticated manufacturing, distribution and marketing capabilities before mass alcohol addiction becomes a problem in their villages.

Drugs of mass addiction this century become much bigger markets than thera- peutic drugs, though prescription drugs also grow after World War II at a faster rate than any other product market. Mass addiction is a product of modernity and the globalising qualities of modernity. Mass addiction requires that strong states offer protection to drug pushers for long enough to link organised production to distribu- tion/marketing systems into new consumer markets. As in Tim Costello's critique of Jeff Kennett, we might say the same thing of gambling addiction: Australia had a small problem when all the state protected was little two-up schools, a medium problem when it was protecting the Mister Big Enoughs of illegal gambling casinos, an unparalleled problem now that the sophisticated marketing of Crown is protected by the crown.

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With casino gambling addiction as with drug addiction, initial marketing is to identity-enhancement for elites — wealthy men — witb women and the poor pursuing the identity of the casino high roller later. New drugs start out as expen- sive. Tobacco, snuff, cocaine start out as aristocratic affectations. The second wave of heroin addiction does not start out post-war with the black underclass in North America, but with bohemian off-spring of the bourgeosie (beatniks). During the first wave only Chinese men who control the family finances can afford to go to the opium dens. Women who go to them, at least in Australia (Manderson, 1993), tend initially to be viewed as fallen women seduced by men who pay for their drugs. Even with coffee and tea, the Indies companies in Europe market the new luxury drugs to the bourgeosie at first through coffee and tea houses. These were good places to be seen — even Lloyds of London starts out at Edward Lloyd's coffee house. When the lower orders and women invade them, just as they had earlier taken over taverns, which were also intitially places of relaxation for the rich' elite males retreat to new institutions called private clubs (Matthee, 1995, p. 46). In much ofthe Arab world, coffee houses where men smoke their bongs remain to this day the preserve of heads of households.

To understand why tobacco, cocaine, tea, coffee and heroin become drugs of mass appeal, we need to grasp that because of their high cost they start out as fads of the rich which therefore become identity-enhancing for lower orders as mass marketing allows their price to come down. Once drug abuse is democratised and cheap, it is hard to regulate. But when it is first introduced, it is much easier to regulate because of high prices and because rich users have more oí a stake in conformity (on the demand side), and limited points of distribution on the supply side. Again what is required is intelligence on new technologies of drug abuse and preemptive regulatory measures to nip them in the bud before there is serious money to be made by mass marketing oí them. From a global perspective, drugs of addiction ironically do not become much of a threat to the world's poor when their sites of production are limited to the periphery (tobacco in South America, opium eating in India). The damage is done by rich nations with sophisticated marketing capabilities — the United Kingdom and United States with tobacco, joined by Germany and Switzerland with cocaine, opium and heroin and to some extent Japan in Asia. Japan instantiates the awful paradoxes of modernity: it appropriates the globalising technology' of heroin production, realises early that this creates a domestic social problem and takes decisive, effective, early regulatory action to virtually eliminate Japanese addiction. Yet Japan continues to mobilise its modem marketing capabilities during the first half of the 20th century to distribute heroin throughout Asia to countries with less sophisticated regulatory capabilities. Drugs that start out as exotic, fads and affectations of the rich, do limited damage to the rich. Bismarck can be the greatest political leader of his age while being a cocaine addict; Wall Street booms as its yuppies experiment with the second wave of cocaine snorting. But once the labouring classes and the unemployed displace the wealthy in taverns, they become places of oblivion, as do 20th-century crack houses and shooting galleries in slums, places where human destruction from violence rivals that from addiction itself.

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Britain was a strong state that protected the British East India Gompany while organised opium production was linked into the Chinese, Australian and other Asian markets. Germany protected its cocaine manufacturers as they were linked into new markets everywhere. Japan protected its heroin manufacturers and pharmacy chains as they penetrated North Asian markets between the wars. Sicilian elites and the Italian state protected the Mafia. The Russian and Soviet states protected the networks of "Russian Mafia" and former nomenclatura. The GIA protected Kuomintang insurgents involved in trafficking, Burmese and Laotian drug lords in tbe Golden Triangle, the Mujaheddin in their Afghan drug trafficking, and many others like them.

European states and the US protected multinationals like Hoffman-La Roche who were the pushers of the new post-war psychotropic drugs of addiction such as Valium. The protection in the latter case was of a different kind. It was the protec- tion of legitimating aggressive marketing of the product within the medical prescription regulatory framework — allowing aggressive marketing because consumers were safeguarded by the need for a prescription. Protection by hegemonic states involved supporting their multinationals against other states which sought to keep new psychotropic drugs off their market, which sought to "unreasonably" restrict the indications for which they could be prescribed, which sought to mandate warnings to doctors and patients which were "unreasonably alarming", which sought to "unreasonably" regulate marketing practices by the pharmaceutical companies (Braithwaite, 1984).

It tended not to matter if the state protection of the drug pushers were later lifted, as it eventually was in most of the cases listed above. McGoy's work shows how a sequence of protecting X against its enemies, then withdrawing X's protec- tion, followed by protecting Y, then withdrawing Y's protection, then Z and withdrawal, can leave the world with an X, a Y and a Z all protected for long enough to become much more organised than other producers. The strong linkages into new markets are already secure by the time the state protection is lifted. Patent protection of "ethical" pharmaceuticals operates in much the same way. The state gives the patent holder a monopoly protected by the state. When it withdraws the protection upon expiry of the patent, the evidence is that the brand loyalty the old monopoly enjoys remains a barrier to competition (Slatter, 1977; Whitten, 1979; Bond & Lean, 1977). The key difference is that the street-level pushing is done by sales representatives in suits who give out free samples, even opera tickets to doctors (instead of addicts who are given free drugs and money so long as they find friends to sell to). The common element is protection under the regulatory umbrella of a strong state for long enough to organise the linkages from local demand creation to transnational supply.

So the conditions for mass addiction are conditions of modemity: protection by a sufficiently powerful state for that protection to have transnational reach, efficient mass manufacture in a form of chemical delivery that market research shows to have mass appeal, sophisticated, organised and disciplined international distribution networks, marketing that portrays consumption as fashionable or identity-enhancing (e.g., heroin chic) and a large (usually disorganised and fungible) street-level sales

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network who are corrupted by their own addiction, bribes or fraudulent claims about the safety and virtue of use.

The final connection of mass addition to modernity is through the desire to regulate bodies to comply with the industrial rhythms of modemity:

Bound to an industrial regimen which required a uniform level of performance throughout the 12-hour working day, the 19th century factory worker was pressed to use stimulants which could tune his body's rhythms to the pace of industry. After a half century of unchanging dietary habits, the average Englishman's consumption of sugar (a quick energy source) jumped four-fold from 20 pounds per person in 1850 to 80 pounds in 1900, while average per capita consumption of tea increased three- fold... The simple 18th century English diet of milled grains had given way by 1900 to one spiced with large quantities of beef (protein), coffee (stimulant), sugar (energy rush) and tea (stimulant). If an energised diet of proteins, glucose and caffeines could be used to stimulate the body artificially and make it maintain a constant level of performance through a long working day, then patent medicines could be used to sooth and relax it during the hours of rest. Patent medicine manufacturers produced drugs to assist every bodily function and to induce any desired state of mind. There were cocaine-based drugs to overcome fatigue, morphine remedies to soothe worn nerves, and heroin medications to calm the agitated mind or respira- tory system (McCoy, 1980, p. 16).

And then there was Viagra.

W h a t Defeated t h e First Wave of Mass Opiate Addiction?

A social movement against the opium trade emerged in the West. The Society for the Suppression of the Opium Trade was founded in 1874 and the Woman's Anti-Opium Urgency Gommittee at around the same time in England. It had inter- locking membership with the temperance movement. In India, campaigners simul- taneously picketed liquor shops and opium dens as integral to the same social movement against drugs (Ghandi, 1952). From 1893, Mahatma Ghandi had been a campaigner working with the Women's Christian Temperance Union and other Christian and women's groups not only in India and South Africa, but also in other parts of Asia, such as Burma, against both the opium and alcohol trades (Ghandi, 1952). Both social movements had enormous success in naming and shaming drug pushers and politicians who protected them and in persuading people to reject or moderate their use of drugs of addiction. The temperance movement, after decades of success in making drunkenness progressively more shameful, threw these gains into reverse through the error of successfully compaigning for zero tolerance (prohibition) in the US.

The temperance movement in the English speaking world in the 19th century was huge in its following and many of its followers were progressives and radicals, preeminently most of the first wave feminists. It is important to note here, foreshadowing our conclusion, that it was "cool" or progressive to denounce the commercial exploitation of the liquor industry.

From the 1912 Opium Convention at the Hague, as incorporated into the Versailles Peace Treaty of 1919, the European multinationals, such as Bayer, Merck and Hoffman-La Roche, got out of the opium, heroin and cocaine trades as US

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companies had already begun to do after the 1906 Pure Food and Drugs Act. Similarly, the successful US-led efforts to intemationalise the prohibition, then criminalisation of the distribution and use of marijuana took the transnational "ethical pharmaceuti- cal companies" (as they liked to call themselves) out of this market.

This first campaign against opiates and cocaine was something of a success. Most of the world, including nations such as Japan, which was deriving consider- able economic benefit from export of heroin to China and other parts of Asia, agreed to control promotion and usage of narcotics, then to prohibit exports, and eventually to restrict medically supervised supply to addicts.

Using League and United Nations figures, McCoy (1992, p. 268) concludes that global opium production fell from a peak of 41,600 tons in 1906 to 7600 in 1934, continuing to fall to 1000 tons by 1970 after which (according to the US Drug Enforcement Agency) it rose to 4200 tons by 1989. While the earlier figures can be questioned because they reflect generally licit production voluntarily reported by governments, the 1989 US government estimate includes estimated illicit produc- tion, suggesting that while the drop in opium consumption was not as sharp as the League of Nations figures suggest, it still almost certainly was substantial. The International Narcotics Control Board in 1969 estimated illicit production oí opium at around 1200 tons a year (Bruun, Pan & Rexed, 1975, p. 24).

After the 1925 Geneva accord tightened controls and the League's Limitation Convention of 1931, legal heroin production dropped from 9000 kilograms in 1926 to 1000 five years later (McCoy, 1992, p. 268). Again, we do not know to what extent this must be counterbalanced by a rise in illegal heroin production in the years before the Depression. Here we must be especially careful because rising regulation increased the comparative attraction of illicit demand for heroin over opium, because heroin is more concentrated and less bulky. Seizures of raw opium internationally peaked in 1936 at 124,497 kilos, falling to a low of 35,970 kilos in 1960. Between 1936 and 1960, prepared opium seizures fell from 18,063 to 672 kilos, heroin from 867 to 390, and cocaine from 70 to 10 kilos, notwithstanding improved international enforcement capabilities. This improved capability is reflected in the massive growth in cannabis seizures from 16,283 kilos in 1936 (before cannabis prohibition in most countries) to 875,849 in 1960 (Bruun, Pan and Rexed, 1975, p. 229). In the United States, as in China, it seems that the peak of opiate addiction occurred "about tbe tum of the century, when the number lof addicts] probably was close to 250,000 in a population of 76 million, a rate so far never equalled or exceeded" (Musto, 1996, p.2).

With cocaine as well as opiates, there is no doubt that getting big business to stop indiscriminate use in their products reduced addiction and demand, with cocaine trafficking almost disappearing by the 1950s before the rebound ofthe 70s and 80s. But the period of decline in opiate and cocaine trafficking lasted only as long as the new illicit trade remained a totally disorganised small business activity. That period of disorganised marketing lasted for only two or three decades mid- century. One must also bear in mind that big phannaceutical companies, such as Hoffman-La Roche, covertly supplied the illicit opium trade through the 1920s before they finally got right out of the illicit opiate and cocaine trade in response to intemational shaming of their illicit opiate sales in the Canton Road Smuggling

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Case of 1925 (Bruun, Pan, & Rexed, 1975, pp. 223-224). Eifty years later we saw the same phenomenon, with 20% of US amphetamine manufactures diverted to the illicit traffic (Bruun, Pan & Rexed, 1975, p. 236).

In the 1960s, the possibility of drug trafficking becoming an organised activity that generated new demand was barely recognised, as reflected in the quaint optimism of a 1966 review of "Twenty Years of Narcotic Control Under the United Nations":

By now the problems have been clearly defined and some of them have been solved, or the instruments of their solution have been created: non-medical consumption of opium, coca leaf, cannabis, and of the drugs manufactured from them is outlawed in principle and is bound to disappear after transitional periods of adaptation (Bruun, Pan, «SL Rexed, 1975, p. 33).

Closure of shipping lanes during World War II greatly disrupted the organising of drug trafficking, with merchant seamen important in the limited and disorganised trafficking in opiates that occurred during the 1940s.

Unfortunately US-led global enforcement policies increased the competitive advantages of more organised (networked is a better descriptor), politically protected drug traffickers by crushing their less networked opposition. An additional important factor here was the way anti-communist insurgency movements learned that they could combine their capacity for systematic violence, their discipline, experience in money laundering and ability to call on the political protection ofthe US Central Intelligence Agency (and other intelligence agencies, such as that of Taiwan) to fund their military activities through tbe drug trade.

Scholars such as McCoy (1972, 1980) have documented how the CIA supported a variety of anti-communist forces who relied on drug trafficking: Kuomintang insurgents against the Peoples' Republic of China from bases in the Golden Triangle, Burmese and Laotian drug lords during the period of Indo- Ghinese instability from the 1950s to the 70s (Lintner, 1992; McGoy, 1992), the Contras in Nicaragua (Block, 1992; Scott, 1992), Miami and Tijuana Cubans (Kruger, 1980; Marshall, 1992; Scott, 1992) the Mujaheddin in Afghanistan and elements in the Pakistani military (Lifschultz, 1992), and Noriega in Panama (Scott, 1992). In Asia the result was that:

By attacking heroin trafficking in the separate sectors of Asia's extended opium zone in isolation, the lUS] Drug Enforcement Administration inadvertently diverted heroin exports from America to Europe and shifted opium production from South West Asia to Southeast Asia and back again — raising both global consumption and production with each move (McCoy, 1992, p. 267).

Eor example, shutting down the export of Turkish production through Marseilles expanded opportunities for Golden Triangle traffickers protected by the CIA. Then when the post-Vietnam US turned its war on drugs against these very Golden Triangle producers, they responded by shifting their supply to Europe and Australia, which were then flooded with heroin dealers.

What the GIA did was protect new narcotic entrepreneurs from regulation for long enough for new production areas to be linked into the world market and new trafficking organisations to be established. Drug organisations are most

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vulnerable during the periods when these linkages are being established. Once these were networked, they continued to flourish after GIA protection was withdrawn, just as the Russian organised crime groups continued to flourish after KGB protection evaporated.

While mass alcohol addiction is a partial exception, appearing prior to organised capitalist trafficking and marketing of drugs under state protection, Australia is the exception to the exception. One important reason Australia became an extraordi- narily heavy drinking society in the 19th century is that the NSW Gorps became its first capitalists, trafficking rum under the protection of successive Governors.

Modernity and the Mobilising of Disapproval

Most drugs of modernity are appropriated from pre-modem states {coííee from Ethiopia, tea from China, opium from India, tobacco and cocoa from South America and Java). Marijuana is the only word that comes into the English language from Mexico. Our structural analysis of modemity is a pessimistic one: once misguided or corrupt states protect organised drug pushers for a period, their marketing becomes established to the point where they do not need protection. Mass addiction disasters are therefore cumulative. But only to a degree, as the successful campaigns against opium, heroin, marijuana and cocaine until the 1960s and the successful campaign against alcohol for a century until 1930 showed. In the U S , alcohol consumption had been five times as high in 1830 (Levine & Reinarman, 1993, p. 167). As in the US, the big falls in Australia occurred before the advocacy of prohibition: Tasmanian spirits consumptions fell from 2 gallons per head in 1857 to 0.69 gallons in 1889 (Reynolds, 1969, p. 22), but also fell more sharply than in the US during the prohibition era (Room, 1988; Levine & Reinarman, 1993, p. 169). Just as modernity delivered globalising mass addiction, it also delivered globalising social movements politics, with the anti-slavery, temper- ance and anti-opium movements being the first of these. Just as the contemporary women's and environmental movement have more important effects on crime than the criminal justice system (by rendering domestic violence and environmental crimes shameful; Braithwaite, 1995) so did these early social movements have an enormous impact on drug use.

The message is that the most important thing we can do to prevent drug abuse is to stop new surges of state-protected marketing of addiction before the new markets they create are permanently established. Preventing cigarette manufactur- ers from moving on from marketing to boys to marketing to girls, from marketing in Australia to marketing in New Guinea. It is easier to prevent new damage than to undo the damage Charles I did in protecting the American tobacco lobby as it extended distribution of its product to adult males in the West. Preventing drug companies from persuading men they cannot live a full life without Viagra. Have we ever accomplished that since the cocaine was taken out of Coke? Yes.

Bex and Vincents (combining phenacetin, aspirin and a megadose of caffeine) was the most dangerous new addiction in Australia since tobacco. It was marketed particularly aggressively on radio and television during the 1950s to mothers as a pick-me-up to deal with the stresses of family life (Hennessy, 1993). You cannot buy this drug in Australia today and there are no addicts left, though many ended

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their addiction through death. Police peddling zero tolerance enforcement had nothing to do with this accomplishment. The key actors were a social movement against the drug led by the Australian Kidney Foundation, certain specialist colleges of the medical profession, certain journalists who campaigned against the drug, and health regulators who eventually banned advertising and negotiated reintegratively with the manufacturers to withdraw the product from the market in a way that gave them time to diversify into safer drugs. In fact they were allowed to continue selling a safe formulation of Bex and Vincents, weaning many off their addiction without them realising it. But without the naming and shaming in the Women's Weekly, they never would have been brought to this responsible reaction. It was a noble moment in Australian history. Australia was the only nation in the world that had Bex and Vincents addiction. And it had the highest death rate in the world from kidney failure to prove it. The product's enormous commercial success was evidence of a global marketing opportunity that was voluntarily relin- quished. Note in terms of our conclusion that the social movement against Bex and Vincents left our generation in the 1960s thinking our parents' generation had been decidedly uncool to be swayed by advertising urging upon them "a cup of tea, a Bex and a good lie down" or to "take Vincents with confidence".

Another Australian innovation in social movement politics of which we can be proud according to this analysis is the Medical Lobby for Appropriate Marketing (MLAM). This Adelaide-organised global network of medicos nips failures of supply-side regulation in the bud by the simple means of letter writing campaigns to pharmaceutical companies and regulators combined with the occasional press release. Along with the UN, the consumer movement and others, the evidence is that they are a useful strand in a web of controls against commercial marketing of new dangerous drugs (Braithwaite & Drahos, 2000, chapter 15).

The drug abuse prevention strategy commended here has two elements. First, active social movement politics to denounce failure of state regulators to prevent highly organised linkage of drug marketing into new markets (from MLAM to grass roots campaigns against political corruption by the Mafia in Sicily to Transparency Intemational's more global work using institutions like the IMF and World Bank as weapons against corruption). Once supply linkages are disorganised rather than networked, there is good reason for hope that restorative justice in local communi- ties, social investment in drug education and rehabilitation, can keep demand at low levels. There are centuries of experience (millennia with opium) of community control and community help working to manage demand in the face of disorganised supply which is not allowed to market for identity-enhancement. We might say the same with problem gambling and other addictions that only really spin out of control under the influence of mass marketing that projects favourable identities like "high roller" and disseminates opportunities for the poor to mimic that identity.

This experience of community control of disorganised supply gives us confl- dence that drug abuse can be kept under reasonable control with minimal police involvement (see Braithwaite, 2001). The web of drug regulatory and rehabilitative arrangements needed is a complex topic which we do not seek to resolve here. Organised criminal drug traffickers need to be given an incentive to shift their capital out of the shadow economy into the legal economy (see Braithwaite, 2002),

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simultaneous with their markets being threatened by legal state supply to addicts. The conditions that induce demand for drug-induced oblivion — homelessness, unemployment, sexual abuse of children, crushed identities of oppressed racial minorities — need to be attacked. Licenced private supply of tobacco and alcohol could continue (subject to the kinds of regulatory checks documented as effective in the work of Homel et al., 1997) a total ban on any kind of marketing, gradually- expanding regulation of exposure to passive smoking and heavy taxation dedicated to funding education and rehabilitation. And much more. There is also every reason for confidence that sophisticated webs of controls and counter-marketing could reduce this kind of drug addiction, that drug abuse could become decidedly uncool if social movements against drug abuse could succeed in recruiting the kinds of cool people that the temperance movement recruited in the 19th century and the social movement against Bex and Vincents recruited in the 1960s.

Zero addiction would never be achieved, just as it never has been in the past. But then neither could zero tolerance achieve this. The error of zero tolerance seems transparent in the disaster that was prohibition. The potential of naming and shaming seems evident in the demise of cocaine addiction after its removal from patent medicines at the tum ofthe century. It seems evident in the 1960s demise of Bex and Vincents addiction.

Conclusion

The pessimistic side of the Part 11 case study is that modernity brings continual market innovation with new technologies of addiction — more efficient, compact and appealing ways of delivering drugs. New synthetic drugs are marketed at club and dance venues that are decidedly cool. At the same time, these venues are often financially backed by paragons of respectability who are vulnerable to naming and shaming. We cannot expect a decline in the rate at which new drugs of abuse are designed and marketed with appealing names like ecstasy. If states continue to make the mistake of initially protecting the marketing networks for new drugs, as they did with tobacco, opium, cocaine and heroin, then there will be a cumulative acquisition of new tastes for addiction.

The optimistic side of the analysis is that this cumulation of linkages of new products into organised distribution networks can be seen for what it is and preempted. If naming and shaming the commercial exploiters of new drugs of abuse and the states that protect them can secure effective regulation before market research and marketing networks a product as a drug of oblivion for the poor, then mass addiction can be nipped in the bud. Social movement naming and shaming of organisations that seek to commercially exploit drugs of abuse are crucial in keeping states honest about regulating supply. If the activist identity in opposition to commercial exploitation of a new drug becomes as cool as the drug-using identity, then social movements can also reduce demand. It seems the less plausible theory that the massive fall in alcohol abuse that followed the rise of the temper- ance movement was accomplished by the regulation of supply than by tempering demand. The social movements for the regulation of opium, licit psychotropic pharmaceuticals, Bex and Vincents and tobacco were probably also progressive social movements that indirectly communicated the message that drug abuse is not

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cool. Put another way, naming and shaming irresponsible capitalist supply may be more identity-enhancing than naming and shaming abusers. There is evidence that parents who are users of tranquilisers, barbiturates and stimulants are more likely to have children who are users of marijuana, LSD and other drugs (Pekkanen, 1973, pp. 97-98). Hence, some of the indirect effect on demand-reduction of campaigns against supply may be generalised. For example, campaigns against marketing that portrays smoking as relaxing or identity-enhancing, against marketing a little pill for every ill, may communicate more general messages about finding chemical solutions to one's problems.

The drugs case study illustrates the counterproductivity of zero tolerance. Equally, it shows that social movement naming and shaming of organisational abuses of power is only one element of a multifaceted regulatory and educative response, but perhaps the most important one for preventing matters from getting even worse. We hope it also shows the limits of an organised crime framework compared with the organisational regulation framework we have advanced. One of the referees commented on an earlier version that, "the tendency to blur 'licit' and 'illicit' drugs [in the case study] begs questions about the nature of organised crime... Has the state been purged in Italy of organised crime influences post Falcone etc?". To us, this seems to perpetrate the sin of thinking too much like a criminologist. The implication of the regulatory analysis wherein naming and shaming plays an important part is to nip licit vices in the bud before they are defined as a crime problem and before they spin out of control. Once economically powerful organised groups are entrenched in their marketing of a new vice, be it ecstasy, internet gambling, people smuggling, or a new form of tax shelter, the point of greatest effectiveness in regulatory control is already past.

Acknowledgement Thanks to Brent Fisse for the influence he has had on our thinking in this area over more than two decades.

Endnote 1 In Germany, legislation even mandated certain inns as exclusive preserves of craftsmen's

guilds (Plant, 1997, p. 43).

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