More and more jurisdictions are decriminalising drugs. The policy may appear radical but it is a pragmatic response to help the most vulnerable
The news that Oregon had voted to “decriminalise all drugs, including heroin, cocaine and meth” made for some striking headlines around the world, even if they were somewhat drowned out by presidential dramas. But before diving into the arguments around decriminalisation, it is important to be clear what it actually means. It is not a formally defined legal term, but is generally understood to mean removing criminal sanctions for minor drug possession offences. “Not criminal” does not, however, have to mean “not punishable”. Possession generally remains an offence, albeit not a criminal one, and the option for civil or administrative sanctions remains, as with a speeding offence. This can mean a fine or a requirement to attend a drug education class or treatment assessment. It is also important to be clear that “decriminalisation” of possession is distinct from “legalisation” which generally refers to legally regulating drug production and supply. The supply of heroin, cocaine, etc, remains prohibited in Oregon and other decriminalised jurisdictions, even if cannabis has, in fact, already been legalised for retail in Oregon, and a growing list of US states and countries.
The details of different “decriminalisation” approaches around the world vary quite widely making generalisations tricky. Almost 30 countries have adopted some form of decriminalisation approach for cannabis, or in many cases, all drugs. Some countries, such as Portugal, formally change the laws (de jure decriminalisation) while others, such as the Netherlands and Switzerland, maintain criminalisation on the books, but simply don’t enforce it (de facto decriminalisation). Some have quite severe non-criminal sanctions (in Italy you can have your passport or driving licence confiscated), while others have few if any penalties at all (80 per cent of possession offences in Portugal have no further action taken). The common thread, however, is that the individual found with drugs does not receive a criminal record. So “decriminalising drugs” is more usefully understood as “ending the criminalisation of people who use drugs”.
For many, the idea of decriminalising something so widely seen as a source of health and social harms is very counterintuitive. So why are more and more jurisdictions adopting this policy? The most obvious answer is because criminalisation has failed so spectacularly on its own terms. The threat of criminalisation is supposed to “send out a message” and deter use, but the opposite has happened. Despite growing resources directed toward enforcement, global illegal drug use has been rising relentlessly for most of the past 50 years.
It is easy to cherry-pick data in support of a particular narrative. Sweden and Japan, for example, are often used to argue more punitive approaches can result in lower levels of use—whereas the US, with 450,000 jailed for non-violent drug offences and still amongst the world highest consumption rates, would seem to show the opposite. Equally there are other countries with less punitive regimes, with both higher and lower levels of use. In fact, global comparisons and studies tracking impacts of policy changes, suggest that different levels of punitive enforcement don’t seem to correlate with levels of use at all. Any deterrent effect is marginal at best, with patterns of use driven primarily by social and cultural trends, rather than enforcement policy.
But while criminalisation has failed to reduce drug use, it has succeeded in increasing drug-related harms, encouraging use of more risky drugs, in riskier ways, and in riskier environments. The rise in UK drug deaths is perhaps the clearest and the most alarming signpost of this failure. Now at unprecedented levels, a third of all EU drugs-related deaths occur in the UK, with cocaine-related deaths alone rising five-fold since 2012. Ironically for an approach designed to protect health, criminalisation actually makes addressing problematic use more difficult; driving the very people we are trying to help away from services, and burdening the most vulnerable (disproportionately black urban youth) with potentially lifelong stigma. Criminal records make securing personal finances, employment, and housing more difficult, undermining life chances and relationships, and in turn increasing the likelihood of problematic drug use and criminal involvement.
The idea that more or tougher punishments would somehow allow us to “turn the corner” and finally win the “war on drugs” needs to be exposed as the empty posturing it is. Many countries with even the most draconian punishments, including mandatory treatment, floggings or even the death penalty, still have very high levels of use. Drugs are a health and social policy challenge and require health and social policy responses.
While ending criminalisation would be a positive in itself, freeing up police time and ending the stigma carried by millions, it is important to see it in the context of a broader reorientation away from the failings of the punitive approach towards proven health based models. Since Portugal decriminalised in 2001, the country has seen dramatic drops in drug-related deaths (to rates now 20 times lower than in the UK), and far from the feared explosion in use, injecting and school age drug use both fell, while adult use has risen marginally, in line with patterns in EU neighbours. But these outcomes also resulted from substantial investment in drug treatment services that took place alongside, and were facilitated by the law reform. Decriminalisation is what the World Health Organisation describes as a “critical enabler” of a meaningful health response to the drug problem.
So what may appear superficially radical is actually an approach to drugs that mirrors the way in which we approach other risky behaviours. We don’t criminalise smokers, people who engage in unsafe sex, or people who eat too much chocolate. We encourage safer behaviours and healthier choices, and provide help and support when needed. This is why decriminalisation has been endorsed by not only the WHO, but in the UK, by the Government’s own Expert Advisory Committee, the Royal Society for Public Health, and The Royal College of Physicians, amongst others. Five UK police authorities have already implemented pre-court “diversion” schemes that divert people caught in possession into tailored health interventions instead of prosecutions—functionally very similar to the Portugal model. Far from being the pipe dream of drug liberalisers, decriminalisation is a pragmatic health response well on its way to becoming national policy.