Drug laws on possession: several countries are revisiting them and these are their options
Many countries are changing the way they approach people who use drugs. The Irish government has just announced possible alternatives to criminalisation for possession of some drugs. Other countries, including Norway and Malaysia, are weighing options. But what can countries do if they don’t want to arrest or convict people because they use drugs?
To inform the Irish government’s decision, we carried out a detailed review of approaches in various countries. These countries were Australia, the Czech Republic, Denmark, Germany, Jamaica, the Netherlands, Portugal, the UK and the US. We found three main approaches: depenalisation, diversion and decriminalisation. (We did not review models of legally regulating the production and sale of drugs. Decriminalisation is not the same as legalisation.)
Depenalisation is where the crime remains in law, but the police stop imposing penalties for some people. For example, police in England and Wales can issue written warnings to people found to be in possession of small amounts of cannabis for the first time, instead of arresting them.
Diversion is when people found to be in possession of drugs are sent to education sessions, treatment or social services, instead of being charged and prosecuted. These schemes have been adopted in Australian states, such as New South Wales, and in some parts of England and the US. Some schemes, including one in Queensland, are written into law. Others, like County Durham’s Checkpoint scheme and the LEAD programme in Seattle, are based only on changes in police practice.
Decriminalisation involves legal changes so that it is no longer a criminal offence to possess a small quantity of drugs for personal use. But there are three approaches to this model.
Since the 1970s, many US states have replaced criminal sanctions and prison sentences with civil sanctions, such as fines for the possession of less than an ounce of cannabis. Similar schemes operate in the Czech Republic, Jamaica and some Australian states, such as South Australia.
Other countries and states, such as Germany and Vermont have decriminalisation with no sanction at all. Still others, like Portugal, have favoured decriminalisation with diversion to targeted health and social responses.
In 2001, Portugal decriminalised the possession of small amounts of all kinds of drugs, combined with the possibility to impose civil sanctions (such as fines or suspension of driving licences) and diverting people into treatment, via a meeting with a “commission for the dissuasion of addiction”. In practice, most cases end with no sanction. Portugal also expanded access to treatment, health and social services with positive results.
How the models stack up
Each approach has its own advantages and drawbacks. Depenalisation, for example, is easy to implement and lets police use their discretion in deciding who to arrest. But this may lead to discriminatory enforcement, as black people are often far more likely to be stopped, arrested and punished for drugs.
Decriminalisation requires legal changes to be made. Some may argue that it leaves authorities without legal opportunities to intervene in undesired activities, such as public drug use. But these can still be banned by separate rules. Indeed, possession of cannabis has been formally decriminalised in New York State since 1977, but it has still been an offence to have the drug “in public view”, leading to hundreds of thousands of arrests for low-level drug offences, again falling most heavily on people of colour.
But decriminalisation also brings the potential for health, social and criminal justice benefits, by reducing stigma surrounding drug use – a known barrier to treatment and harm reduction – and improving employment prospects and housing stability. It can also reduce the burden on police and courts. In Portugal, the extra spending on health services was offset by savings in the criminal justice system and other benefits, meaning the overall social cost of drugs fell
No models lead to increased drug use
Importantly, we did not find evidence that any of these alternative measures consistently increased the use of drugs. A study of over 100,000 teenagers in 38 countries did not show higher rates of drug use in countries with more liberal approaches. Recent decriminalisations in five US states produced big reductions in arrests but no apparent increase in cannabis use among young people.
As countries look for ways to implement UN recommendations to avoid criminalising people for using drugs, they will need to consider these different options carefully. They will, as Ireland has found, need to adapt them to their own legal, social and drug use contexts. They can do so with a fair amount of confidence that removing the harms of punishment is not likely to increase drug use. But, given some models bring greater long-term gains, there is merit in arguing that governments ought to be bold.
Our review was funded by the Department of Justice and Equality and the Department of Health of the Republic of Ireland.
Caitlin Hughes has received funding from the Australian Research Council, National Drug Law Enforcement Research Fund, Australian Institute of Criminology, and federal and state Governments (Commonwealth, ACT, WA) and the Irish Government. She undertook this research while working at the National Drug and Alcohol Research Centre which receives funding from the Australian Government, and she remains a visiting academic at this centre.