[AG-Drogen] Drug law reform - A global snapshot

[Maximilian Plenert <kontakt AT max-plenert.de>]

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1


Drug law reform - A global snapshot

Thursday, February 18, 2010
http://drugfoundation.org.nz/moda/drug-law-reform-a-global-snapshot

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.

Europe

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.

United States

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.

Latin America

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.

Indonesia

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.

Conclusion
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.

    * Sanji Gunasekara is a Senior Policy Analyst at the Drug Foundation.

-----BEGIN PGP SIGNATURE-----
Version: GnuPG v1.4.9 (GNU/Linux)
Comment: Using GnuPG with Mozilla - http://enigmail.mozdev.org

iEYEARECAAYFAkuCkyMACgkQ8wIvRbpDIpLaLwCguBWcBosiNZKh7nypCSs+x16T
RhcAn1SVGZQuLTNd6bZ03SM3bNpJzf/E
=qSMu
-----END PGP SIGNATURE-----