The Law Commission’s current review of the Misuse of Drugs Act is a rare opportunity for New Zealand to drag its drug laws into the 21st century. Around the world, several other countries have also recently re-examined their drug laws. In this feature, Sanji Gunasekara reviews the global state of drug law reform and finds that, while there is a trend towards more public health-focused legislation, sometimes it is a case of one step forward, two steps back.
The ‘war on drugs’ has dominated the approach most countries have taken towards illicit drugs ever since the term was first coined by President Nixon in 1969. Restrictive and punitive national drug laws are partly a result of the global framework for drug control, which is prohibitionist in nature. Yet in recent years, several countries have sought to adopt more humane, evidence-based and public-health focused drug law.
So what is behind the growing momentum towards drug law reform?
The hard line approach has not led to a ‘drug-free world’ after all. While the United Nations Office on Drugs and Crime believes global prohibition has contained drug use, its own figures show that between 140 and 250 million people worldwide reported using illicit drugs at least once in the past year. Even if some kind of plateau might have been reached, over the past 40 years, there has been a “massive increase in the scale and diversity of international markets for illegal drugs and increasing rates of drug use in almost every country” according to the International Drug Policy Consortium.
The consequences of a zero tolerance approach to drugs have often been more harmful than the drug use itself, with overly punitive drug laws contributing to serious violations of human rights. According to Navanethem Pillay, UN High Commissioner for Human Rights, “Individuals who use drugs do not forfeit their human rights. Too often, drug users suffer discrimination, are forced to accept treatment, marginalised and often harmed by approaches which over-emphasise criminalisation and punishment while under-emphasising harm reduction and respect for human rights.”
Shifting resources towards prevention, treatment and harm reduction is more effective in reducing drug-related harms than relying solely on the criminal justice system. Such a rebalancing also frees up law enforcement, courts and prisons to focus on more serious crime, including large-scale drug trafficking, while removing barriers for drug users to access treatment. Recent advances in addiction science support the notion that drug use should be viewed through a health and social policy lens instead of a criminal justice one.
Despite growing consensus about the need for drug law reform, there is little agreement on the form this should take. Public debate is often reduced to prohibition versus legalisation. This oversimplification obscures what is actually a continuum between the poles of harshly enforced punitive prohibition at one end and completely unregulated commercial drug markets at the other. Legislative reform aims for a point somewhere in between these extremes.
Until recently, Western Europe was the centre of gravity for drug law reform. Similar reform has also taken place in Canada and in certain states in Australia and the US. Across Latin America, the most innovative legislative changes are taking place, while in some countries, legislative changes have been decidedly retrograde.
While drug laws still vary widely across the European Union (EU), many states are moving towards a more health-based approach. The European Monitoring Centre for Drugs and Drug Addiction describes a “trend to conceive the illicit use of drugs (including its preparatory acts) as a relatively minor offence, to which it is not adequate to apply sanctions involving deprivation of liberty”.
In practice, this has meant that many EU states have adopted formal or de facto forms of depenalisation – drug use remains a criminal offence but imprisonment is no longer imposed for possession or usage. With specific regards to cannabis, de facto decriminalisation is virtually unanimous across the EU. Only very few countries – Sweden, Latvia and Cyprus – still exercise the option to impose prison sentences for possession of small amounts of cannabis. Legalisation has not been adopted in any EU state.
In 2001, Portugal formally decriminalised the use, possession and acquisition of all types of illicit substances for personal use, which was defined as being up to 10 days’ supply of that substance. The law change ended the use of criminal sanctions for drug possession and introduced a system of referral to the Commissions for the Dissuasion of Drug Addiction, regional panels comprising social workers, legal advisors and medical professionals that aim to dissuade new drug users and encourage dependent drug users into treatment.
The commissions are mandated to use targeted sanctions including community service and fines. These changes did not legalise drug use in Portugal. Possession remains prohibited, and criminal penalties still apply to drug growers, dealers and traffickers. The law change stemmed from the desire to focus police resources on those who profit from the drugs trade while enabling a public health approach to users and occurred during a period of problematic drug use, primarily related to heroin.
After nine years, the impact of decriminalisation in Portugal remains controversial. This is largely because drug use is influenced by many factors in addition to the underlying legislative framework, so attributing any change in the patterns of drug use or harm to the law change alone is difficult.
Nevertheless, some observations are worth noting. Since the law change, cannabis use appears to have increased although levels are still lower than in most other European countries. This may simply reflect an increased willingness to report use. Heroin use appears to have decreased, and there has been a marked drop in drug-related disease and deaths. This has been accompanied by a large increase in the uptake of treatment.
While the Portuguese experience has been described as ‘a resounding success’ by the Cato Institute, the Beckley Foundation concluded that the beneficial impact of the Portuguese initiative has not been as positive as expected. What is clear is that decriminalisation has not heralded a rampant increase in drug use or made Portugal a haven for drug tourism. Overall, drug usage rates in Portugal remain among the lowest in the EU, and drug-related harms have decreased dramatically since the reforms. A major drawback has been the bureaucratic and resource-intensive nature of the system of commissions.
Contrary to widespread belief, drug use remains illegal in the Netherlands. Rather, the Dutch government has adopted de facto decriminalisation. Cannabis remains prohibited, but there is a formal policy of not prosecuting offences that involve a small amount of cannabis for personal use. Retail sale of cannabis is tolerated, providing outlets meet certain criteria such as no advertising, no hard drugs, no underage persons and no sale of large quantities.
Despite open sale at these ‘coffee shops’, levels of cannabis consumption are similar to those of neighbouring countries such as Germany and Belgium and much lower than in the UK, France or Spain. The Dutch approach also appears to have been particularly successful in separating the market for cannabis from those for other more harmful substances. But critics have accused the Netherlands of undermining global efforts against drug control, and in recent years, the Netherlands has progressively tightened its approach. New restrictions have been introduced, and the number of ‘coffee shops’ had declined from about 1,500 in 2000 to 702 in 2007.
A major drawback to the Dutch approach relates to the ‘back-door problem’ – while the sale of cannabis to users is tolerated, supply to the retailer is subject to law enforcement, and suppliers can still be prosecuted for transporting cannabis to the shops.
Criminal organisations have taken over a large part of the cannabis industry. According to police, at least 80 percent of what is grown in the Netherlands is exported. Various initiatives to address this, such as allowing cannabis cultivation for ‘coffee shops’ within a closed system and hence decriminalising its production, have so far failed.
While the US is the cradle of drug prohibition, there is a remarkable diversity of drug law at state and county level. Currently, 13 states have decriminalised the use or possession of cannabis and 13 states have recognised its medicinal use. Some states fall into both categories. Nevertheless, US law enforcement and prison systems are overwhelmed by prosecutions on drug-consumption charges.
In a sign that the federal position is slowly changing, the Obama administration has signalled its intent to deal with drugs as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration. Federal authorities have been instructed to end raids on medicinal-marijuana dispensaries, and the ban on federal funding of needle exchange programmes has been lifted.
In a tacit admission that hard line anti-drug policies in the broader region have not worked, the US House of Representatives has voted to create an independent commission to review its anti-drug policies related to Latin America. Since 1980, the US has spent nearly $14 billion trying to stop drugsmuggling from Latin America yet there are still over 25 million users of marijuana, 5.3 million users of cocaine and nearly half a million users of heroin in the US.
Despite differences across counties and cities, the state of California comes closest to the de facto legalisation of cannabis anywhere in the world. Cannabis is now available as a medicinal treatment in California to almost anyone who tells a willing physician they would feel less discomfort if they smoked it. There are over 200,000 Californians with a medical letter from a doctor entitling them to purchase cannabis and hundreds of dispensaries selling it. Cannabis sold for medical purposes represents only a small fraction of the total California cannabis market but diversion to this wider market clearly occurs. The wholesale price of cannabis has fallen by half since the legalisation of medicinal marijuana.
No region has had greater incentive to reform its drug laws than Latin America. The continent has borne a heavy cost in the war on drugs. Thousands of lives have been lost, drug lords have taken over entire cities and corruption is undermining governance. Despite billions of dollars spent in supply eradication, the region remains the world’s largest exporter of cocaine and marijuana, and domestic drug use is also growing.
Recognising the need for a new approach, the Latin American Commission on Drugs and Democracy, convened by the former presidents of Brazil, Colombia and Mexico, has proposed a paradigm shift away from a prohibitionist strategy to one that embraces treatment and prevention at its core. In a report released in 2009, the commission calls for the status of addicts to change from that of drug buyers in the illegal market to that of patients cared for in the public health system. It also argues that it is essential to differentiate between illicit substances according to the harms they inflict and emphasises the need for better strategies to reduce demand.
Drug law reform across Latin America was well underway even before the commission’s clarion call for change. In August 2005, Argentina’s supreme court ruled that it was unconstitutional to impose criminal sanctions for the personal possession of drugs, paving the way for new legislation to decriminalise the possession of illicit drugs for
personal use. In Brazil, legislative changes early last decade led to the partial decriminalisation of possession for personal use, with diversion into treatment and community service instead.
Some of the most far-reaching legislative reform is occurring in Ecuador, a country long known for having one of the toughest anti-drug regimes in the region. In an attempt to address the issue of proportionality and solve a prison crisis, in 2008, Ecuador pardoned more than 2,000 drug ‘mules’ who met three criteria – they were first-time offenders, had been caught with a maximum of two kilograms of any drug and had completed 10 percent of their prison sentence or a minimum of one year. New legislative proposals will have to consider the judicial precedent of this bold move.
Not all drug reform across the continent is progressing in the same direction. While Colombia’s Constitutional Court declared in 1994 that the possession of illegal drugs within fixed limits was not subject to prosecution, the hard-line government of President Uribe believes this is inconsistent with efforts to curtail drug trafficking and has been trying to undo that decision with a constitutional amendment to recriminalise consumption.
Other apparently progressive drug law reform has been double-edged. In Mexico, new legislation was enacted in August 2009 that decriminalised possession of small quantities of all drugs and mandated increased prevention and treatment programmes. Despite many positive aspects, there are real concerns that the new law may end up sending even more people to jail. It sets a very low threshold in differentiating between a consumer and a seller and applies even harsher penalties for small-scale dealing. While cocaine is sold by the gram on the street, the maximum amount deemed for personal use is half a gram. Possession of more than this is punishable by three or more years in prison.
The new law is likely to create additional incentives for police corruption and the extortion of consumers and small-time dealers. Whatever action Mexico takes is unlikely to have a major impact on the violence without a major reduction in demand from across the border in the US.
Many drug users in Indonesia experience abuse and extortion at the hands of police during regular ‘crackdowns’. In September 2009, Indonesia passed a new narcotics Bill. Contrary to what drug reform groups such as the Indonesian Coalition for Drug Policy Reform were hoping, the new law maintains the death penalty for some drug offences, continues to criminalise drug addiction and makes it a crime for parents to fail to report their addicted children to authorities. The law also transfers responsibility for fighting drug trafficking from the government to civil society.
Nevertheless, the new Bill does introduce some positive measures. For example, public health concerns are addressed through the requirement to provide medical and social rehabilitation for drug addicts.
Many countries have grappled with drug law reform. Today, we have a much better understanding of what works and what does not. As New Zealand reviews its 35-year-old drug law, there is much to be learned from overseas. While there is no simple one-size-fits-all solution, it is clear that overly punitive approaches to drug use have failed elsewhere. Alternative approaches to drug law need to be guided by evidence, grounded in public health principles and must firmly embrace human rights.
A drug-free world might not be possible but a world free of the harms from the war on drugs ought to be.
Barrett D, Nowak M.(August, 25 2009) The United Nations and Drug Policy: Towards a Human Rights-Based Approach. Aristotle Constantinides and Nikos Zaikos, eds., Brill/Martinus Nijhoff.
Blickman T, Jelsma M. (2009) Drug policy reform in practice. Experiences with alternatives in Europe and the US. Transnational Institute.
Greenwald G. (2009) Drug decriminalization in Portugal. Lessons for creating fair and successful drug policies. Cato Institute.
Human Rights Watch. (November 2009) Drugs, punitive laws, policies, and policing practices, and HIV/AIDS.
Hughes C, Stevens A. (December 2007) The effects of decriminalization of drug use in Portugal. Briefing paper 14. The Beckley Foundation Drug Policy Programme.
Jelsma M, (October 2009) Legislative innovation in drug policy. Latin American Initiative on Drugs and Democracy. Transnational Institute.
Latin American Commission on Drugs and Democracy. (2009) Drugs and Democracy: towards a paradigm shift. February
Rolles S. (2009) After the war on drugs: blueprint for regulation. Transform Drug Policy Foundation.
Tinajero JH, Angles CZ. (October 2009) Mexico: the law against small-scale drug dealing. Series on Legislative Reform of Drug Policies Nr 3. Transnational Institute.
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