Approaches to Decriminalizing Drug Use & Possession

Approaches to Decriminalizing Drug Use & Possession February 2014 More than 1.5 million drug arrests are made every year serious and violent crime; in the U.S. – the overwhelming majority for possession Addressing racial disparities in drug law only.1 Since the 1970s, the drug war has led to enforcement and sentencing, incarceration and unprecedented levels of incarceration and the related health outcomes; marginalization of tens of millions of Americans – Minimizing stigma and creating a climate in which disproportionately poor people and people of color – people who use drugs are less fearful of seeking while utterly failing to reduce problematic drug use and and accessing treatment, utilizing harm reduction drug-related harms. The severe consequences of a services and receiving HIV/AIDS services; and drug arrest are life-long. Drug courts, moreover, have Protecting people from the wide-ranging and not improved matters.2 debilitating consequences of a criminal conviction. One solution to reducing the number of people swept U.S. Drug Arrests, 2012 into the criminal justice system (or deported) for drug law violations is to enact various forms of decriminalization of drug use and possession. 18% Decriminalization is the removal of criminal penalties for drug law violations (usually possession for personal use).3 Roughly two dozen countries, and dozens of U.S. cities and states, have taken steps toward 82% decriminalization.4 By decriminalizing possession and investing in treatment and harm reduction services, we Possession Sales/Manufacturing can reduce the harms of drug misuse while improving public safety and health. Source: Federal Bureau of Investigation, 2013.6 More than 55,000 people were incarcerated in U.S. Decriminalization Does Not Affect Drug Use Rates state prisons at year-end 2011 for nothing more Countries that have adopted less punitive policies than possession of small quantities of drugs.5 toward drug possession have not experienced any significant increases in drug use, drug-related harm or 7 Benefits of Decriminalization drug-related crime relative to more punitive countries. Decriminalizing drug possession and investing in A World Health Organization study found that the U.S. treatment and harm reduction services can provide had the highest lifetime drug use rates by a wide margin, despite its punitive policies – concluding that several major benefits for public safety and health, 8 including: decriminalization has little or no effect on rates of use. Reducing the number of people arrested and The Portuguese Decriminalization Model incarcerated; In 2001, Portuguese legislators enacted a Increasing uptake into drug treatment; comprehensive form of decriminalization of low-level Reducing criminal justice costs and redirecting of all illicit drugs resources from criminal justice to health systems; possession and consumption and reclassified these activities as administrative violations. Redirecting law enforcement resources to prevent Drug Policy Alliance | 131 West 33rd Street, 15th Floor, New York, NY 10001 [email protected] | 212.613.8020 voice | 212.613.8021 fax Alongside decriminalization, Portugal significantly opioid substitution treatment and syringe access expanded its treatment and harm reduction services, programs that are some of the most expansive in including access to sterile syringes, methadone Europe. After its post-Soviet transition, personal drug maintenance therapy and other medication-assisted possession was not criminalized, but in the late 1990s, treatments. the government imposed criminal penalties on possession of a “quantity greater than small” (though After more than a decade, Portugal has experienced this quantity was never defined). The Czech no major increases in drug use. More importantly, it government conducted an in-depth evaluation and has seen reduced rates of problematic and adolescent found that criminal penalties had no effect on drug use drug use, fewer people arrested and incarcerated for or related harms and were therefore unjustifiable.13 In drugs, reduced incidence of HIV/AIDS, reduced opiate- 2009, the country formally adopted a decriminalization related deaths, and a significant increase in the law that defines personal use quantities, establishing number of people receiving drug treatment. According some of the most pragmatic threshold limits of any to the United Nations, “Portugal’s policy has reportedly country to have yet decriminalized. What data are not led to an increase in drug tourism. It also appears available indicate that the Czech model seems to be that a number of drug-related problems have producing net societal benefits.14 decreased.”9 Independent research concludes that “there is ample evidence of a successful reform.”10 Netherlands: The Netherlands has a long-standing policy to instruct prosecutors not to prosecute “The Portuguese evidence suggests that possession of roughly a single dose of any drug for combining the removal of criminal penalties with personal use. Neither civil nor criminal penalties apply the use of alternative therapeutic responses to to possession of amounts equal to or lesser than this dependent drug users… can reduce the burden of threshold. The Netherlands has lower rates of drug law enforcement on the criminal justice addiction than the U.S. and much of Western Europe. system, while also reducing problematic drug The Dutch also have much lower heroin overdose use… [and] may offer a model for other nations rates and prevalence of injection drug use compared that wish to provide less punitive, more integrated to the U.S. The number of young people who use 15 and effective responses to drug use.”11 drugs problematically has also decreased. — British Journal of Criminology, 2010. Colombia. A series of court decisions in Colombia has Other Countries’ Experiences essentially decriminalized small amounts of marijuana In recent years, many other countries have taken steps and cocaine for personal use. In the summer of 2012, toward decriminalization, either through legislation or the Colombian Constitutional Court reconfirmed its the courts. The effectiveness of these approaches decriminalization ruling – followed by the passage of a varies considerably depending on many factors – new law that makes drug addiction a matter of public especially the quantities used to define “personal health and obliges the state to guarantee possession,” and the degree to which decriminalization comprehensive treatment for those who seek it is part of a larger health-centered agenda. voluntarily. The law recognizes “that the consumption, abuse, and addiction to psychoactive substances – licit Mexico: Mexico’s 2009 decriminalization law is mostly or illicit – are an issue of public health and family, symbolic. The threshold limits defining “possession” community, and individual well-being”. Importantly, versus “trafficking” were set very low and penalties for Colombia did not stop at decriminalization but is also “trafficking” were increased. Thus, there is evidence expanding its voluntary treatment capacity. that Mexico’s law has actually increased the number of people arrested and sanctioned for drug law violations, Argentina. In 2009, Argentina’s Supreme Court ruled a phenomenon known as “net-widening.” Mexico has that legislation criminalizing possession of drugs for also not made the same investments in treatment and personal use is an unconstitutional violation of the right harm reduction as Portugal.12 to privacy and personal autonomy. As a consequence, substantial reforms have been drafted and introduced Czech Republic: The Czech Republic, by contrast, has in Congress to formalize the Court’s ruling. long integrated many elements of harm reduction and treatment into its drug policy, including low-threshold Drug Policy Alliance | 131 West 33rd Street, 15th Floor, New York, NY 10001 Page 2 [email protected] | 212.613.8020 voice | 212.613.8021 fax “What would drug reform look like? Most serious Supporters of Decriminalization commentators call for decriminalization – that is, downgrading of the status of personal drug use – Organization of American States: so that using drugs is not a crime or is a lesser “The decriminalization of drug use needs to be one. The aim is to prioritize health considerations considered as a core element in any public health over criminal ones in personal users, but with the strategy.”22 secondary goals of reducing criminal behavior and improving the health of the population. This is not Human Rights Watch: the same as legalizing drugs.” “Drug control policies that impose criminal penalties for – British Medical Journal, 2012.16 personal drug use undermine basic human rights… Subjecting people to criminal sanctions for the personal These laws – and similar efforts around the world – use of drugs, or for possession of drugs for personal reflect an increasing awareness that prohibitionist use, infringes on their autonomy and right to privacy… policies are counterproductive, at least with respect to The criminalization of drug use has undermined the right drug possession. 17 to health… [G]overnments should rely instead on non- 23 penal regulatory and public health policies.” Efforts to Reduce Drug Penalties in the U.S. State Efforts to Reduce Penalties. Seventeen states Global Commission on Drug Policy: have reduced or eliminated criminal penalties for “End the criminalization, marginalization and personal marijuana possession. Some states, such as stigmatization of people who use drugs but who do no 24

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