I am frustrated by the lack of clarity which politicians, journalists and other commentators demonstrate when talking about legal options in relation to drug use, often confusing arguments for decriminalisation of penalties with legalisation. Although people have different perspectives about the way forward, any claims of certainty about outcomes which relate to drug policy must be treated with a huge degree of scepticism. Without the possibility of having a control group to compare against, causality is impossible to measure. However, it is clear that decriminalisation of penalties for personal drug use is consistent with UN Conventions and guidance:
“Serious offences, such as trafficking in illicit drugs, must be dealt with more severely and extensively than offences such as possession of drugs for personal use. In this respect, it is clear that the use of non-custodial measures and treatment programmes for offences involving possession for personal use of drugs offer a more proportionate response and the more effective administration of justice” (Costa, A.M. 2010, p.7).
The official Commentary to the 1988 UN Convention states: “It will be noted that, as with the 1961 and 1971 Conventions, paragraph 2 does not require drug consumption as such to be established as a punishable offence”. The Commentary suggests establishing a strategy regarding the range of offences relating to personal use, similar to that practised by many states, in which such offences are distinguished from those of a more serious nature by a threshold in terms, for example, of weight. However, different countries, while embracing the concept of separating out less serious from more serious offences, have established national arrangements specific to their own setting. Some countries have opted to decriminalise personal drug use, shifting to administrative rather than criminal sanctions. Others instead have opted for a policy of depenalisation, whereby they cease to apply criminal or administrative sanctions, though the laws still exist to prohibit activities. Legalisation has not been adopted by any country and would be a clear breach of UN Conventions. Thus, for example, in Portugal possession of a small quantity of drugs for personal use has been completely decriminalised, whereas in other countries the approach has been not to decriminalise but simply to treat the offence as a low priority for law enforcement. For example, in the Netherlands, Germany and the Czech Republic, possession for personal use remains unlawful, but guidelines are established for police, public prosecutors and courts to avoid imposing any punishment, including fines, if the amount is considered to be insignificant or for personal consumption. Very few EU countries (Sweden, Latvia, Cyprus) exercise the option to impose prison sentences for possession of small amounts.
Antonio Costa, former UNODC Executive Director has argued eloquently against the criminalising and incarceration of people with drug problems (Costa, A.M. 2010). According to Costa, incarceration in prison and confinement in compulsory drug treatment centres often worsens the already problematic lives of drug users and drug dependent individuals, particularly the youngest and most vulnerable. Exposure to the prison environment facilitates affiliation with older criminals and criminal gangs and organizations. It also increases stigma and helps to form a criminal identity. It often increases social exclusion, worsens health conditions and reduces social skills.
Hughes and Stevens (2010) have argued that most studies have found there are no significant increases in use as a result of decriminalisation. They have also suggested that it is difficult to make any certain judgment on the effects of decriminalisation on drug use, given the absence of adequate comparators. However, the financial and other costs associated with a focus on law enforcement and incarceration can be high and reducing the cost of arresting and punishing drug users would enable resources to be focused on maximising the other factors that protect against drug abuse, such as prevention and treatment. It has been argued that one of the biggest impacts of changes in the law has been the reduction of pressure on overburdened penal systems and prison overcrowding (Jelsma, M. 2009). A study which considered data from the Netherlands, United States, Australia and Italy concluded that the removal of criminal penalties appeared to produce positive but slight impacts. The primary impact was reducing the burden and cost in the criminal justice system. This also reduced the intrusiveness of criminal justice responses to users (Hughes, C.A. & Stevens, A. 2010, P. 1000).
It is important to note, however, that there is little evidence that the removal of criminal penalties on its own will be likely to lead to significant increases or decreases in the overall prevalence of drug use or drug-related health harms (Hughes, C.A. & Stevens, A. 2010, P. 1000). The Portuguese experience has been arguably the most studied example of drug policy review. Portugal is the only country which has fully decriminalised personal drug use (in 2001) and it has reported outcomes which include reductions in drug use among young people and reductions in use of opiates, the most problematic type of usage. It has also noted the lack of negative outcomes, such as increased street drug use or drug tourism. However, the Portuguese legislative changes cannot be considered in isolation from the country’s corresponding investment in a range of social and health support services, intended to offer support to drug users where it is needed, while retaining the intention to deter drug use. The Portuguese evidence suggests that combining the removal of criminal penalties with the use of alternative therapeutic responses to dependent drug users offers several advantages. It can reduce the burden of drug law enforcement on the criminal justice system, while also reducing problematic drug use. Outcomes that have been reported include:
- small increases in reported illicit drug use amongst adults;
- reduced illicit drug use among problematic drug users and adolescents, at least since
- reduced burden of drug offenders on the criminal justice system;
- increased uptake of drug treatment;
- reduction in opiate-related deaths and infectious diseases;
- increases in the amounts of drugs seized by the authorities;
- reductions in the retail prices of drugs (Hughes, C.A. & Stevens, A. 2010, P. 1017).
Opponents of the legal change had expressed concerns that decriminalisation would lead to mass expansion of the drug market in Portugal. This did not happen and, in contrast with market expansions in neighbouring Spain, the numbers of problematic drug users and the burden on the criminal justice system in Portugal have reduced. It is not possible to state that any of these changes were the direct result of the decriminalisation policy. However, it is clear from the Portuguese experience that decriminalisation does not necessarily lead to increases in the most harmful forms of drug use. While small increases in drug use were reported by Portuguese adults, this was arguably less important than the major reductions in opiate-related deaths and infections, as well as reductions in young people’s drug use. Other countries, such as Sweden and Switzerland, though adopting different legislative approaches, have also claimed successful outcomes from their drug policies but, as with Portugal, these countries’ substantial investments in health and social care services must be considered as at least as important as the legal framework.
Costa, A.M., 2010. Drug control, crime prevention and criminal justice: A Human Rights perspective: Note by the Executive Director UNODC, Vienna: Commission on Narcotic Drugs, 53rd session.
Hughes, C.A. & Stevens, A., 2010. What can we learn from the Portuguese decriminalization of illicit drugs? British Journal of Criminology, 50, Pp. 999-1022.
Jelsma, M., 2009. Legislative Innovation in Drug Policy:Latin American Initiative on Drugs and Democracy, Amsterdam: Transnational Institute.