Summary of Key Points
Background and context
- Internationally, there is growing recognition of the harms that punitive drug policies cause, and a movement towards harm minimization and health efforts instead of traditional criminalization, law enforcement and abstinence based responses.
- There is a commitment in Scotland to reduce drug harms and the alarming recent growth of drug related deaths. However, the justice system's ability to reorient its approach towards people who use drugs is constrained by the current UK law, notwithstanding recent developments elsewhere in the UK, which illustrate the potential for localised innovation.
- This paper gives an overview of seven case studies in drug law reform approaches from five countries. It aims to support Scottish Government research and policy development regarding drug law and enforcement, and the work of the Drug Deaths Taskforce in identifying successful interventions and locating them within their legal and policing contexts.
Frameworks for Considering Law Reform
- Most drugs do not inherently cause large amounts of harm in and of themselves when used casually. Rather, the vast majority of drug harm arises from dependence.
- The hierarchy of harm is not well represented in most counties' classification laws. Data on harms in the UK make it clear that the present UK drug classification system does not correspond with the harm each substance causes.
- In particular, ecstasy and LSD are consistently ranked as two of the lowest harm drugs, despite being Class A drugs in most jurisdictions. Cannabis is also consistently ranked as less harmful than alcohol or tobacco, which are legal in most jurisdictions.
- How the law is implemented and enforced can significantly impact the effectiveness of interventions.
- The risk environment can be thought of in terms of the physical, social, economic and policy contexts in which people use drugs. Both practical policing decisions (such as physical patrols), and bureaucratic structures (such as inter-agency referral pathways) can significantly influence people's decisions about drug use and service engagement, and public health outcomes.
What doesn't work?
- There is an emerging consensus that ineffective interventions for people who use drugs tend to be ones that:
- are excessively punitive or involve excessively close monitoring
- do not involve a rehabilitative element or build skills for the future
- reinforce criminal identity
- are implemented poorly
- a common failure of many interventions, whether psychoeducational, control-oriented or deterrence-oriented, is a failure to help people to gain the skills they need to manage situations differently in the future.
Seven case studies were selected for closer examination in this paper. The case studies were not selected systematically, but on the basis of recommendations and interest from experts within Scottish Government and
- The dominant strategy in Australiafor many decades has been a policy of criminalising the use and supply of illicit drugs.
- Research on major policing crackdowns in Australia have generally found that such operations tend to make only modest impacts on supply and overall exacerbate harms rather than reduce them, by pushing drug use into more dangerous places, and more dangerous transport and consumption methods.
- In recent years, some reforms have occurred including:
- o Legal decriminalisation of cannabis possession in some States and Territories, replacing criminal sanctions with civil fines.
- o In other states, de facto reforms have taken place. These generally involve interventions such as diversionary cautions or referral to treatment. However, these schemes have strict eligibility criteria which can exclude those who may need them most.
- o In some places, police have supported harm minimisation interventions by, for example, limiting unwarranted patrols near needle exchanges.
- Evaluation of cannabis expiation schemes show some implementation problems, but have been effective at reducing enforcement costs without increasing consumption.
- Research has indicated that drug use in Australia is relatively stable over time and cannabis decriminalisation has not increased consumption. However, despite this, the number of civil penalties issued has continued to increase, suggesting that police propensity to detect and formally process cannabis possession may have increased due to the lower stakes of the civil penalty – an effect known as "net widening".
- Canada has allowed medically prescribed cannabis since 2001, and in 2018 changed the law to create a fully legal, regulated market for recreational use.
- Retail cannabis is now available in all Canadian jurisdictions, with some states using government operated retailers and others using licensed private providers
- This change was motivated by a desire to not just decriminalise cannabis consumers, but to also remove production and revenue from criminal enterprise, giving the government both control over quality assurance, and the ability to collect tax on this previously black market.
- It is too early to confidently assess the change's impact, however the data available suggest that:
- After a small initial rise, reported consumption returned to pre-reform rates and has been relatively stable since.
- Canadians report accessing significantly less cannabis directly from the illegal market.
- Vacouver also serves as an informative case study on harm minimisation for harder drugs. In 2003, Vancouveropened North America's first supervised injection facility. It initially operated under a special exemption from Canada's drug laws, and its legal status was affirmed by the Canadian Supreme Court in 2010.
- Vancouver police have adopted an organisation-wide policy that treats drug use as a public health issue and encourages police to use discretion and refer them to the safe injecting facility or other services.
- Since it began, there has never been a death at Vancouver's supervised injection facility. Extensive evaluation has indicated that the facility decreases risk of fatal overdose, improves service users' safe injecting practices, increases uptake of addiction treatment, and reduces public nuisance issues.
- There is also evidence that relationships between drug users and police have improved, police now regularly refer people to the safe injecting facility, and are more likely to view people who use drugs as needing protection.
- The supervised injecting facility has also served as an important first step for building further innovation, such as current work on heroin assisted treatment.
- Since a law change in 2011, Denmark now has five supervised Drug Consumption Rooms (DCRs) across three municipalities.
- Overdose deaths in Denmark have been falling since consumption rooms were introduced. Evaluations indicate that DCR's have contributed to reducing the number of overdose deaths in the cities that have them. There is also evidence from the Copenhagen facility that crime, violence and publicly discarded syringes have all decreased in the area.
- Research has highlighted the important role consumption rooms have played in helping people access health, social and addiction services.
- Research on police attitudes also suggests that the advent of decriminalization zones around consumption rooms has caused more police to view drug users as people in need of police protection rather than as police targets.
- Cannabis has been decriminalised for personal use since 1971. The current day 'coffee shop' model has developed through a dialogue between informal police tolerance policies and legislative/regulatory reform.
- Today, coffee shops may sell cannabis as long as they are licensed and adhere to a range of regulations, including limits on the volume that can be traded, a minimum age of 18, and not selling alcohol or contributing to public nuisance.
- The consumer side of this model has been largely successful, and cannabis use in the Netherlands is about average for Europe despite its laws being significantly more liberal than most.
- However, because the law only permits and regulates small scale, consumer transactions, the cultivation and wholesale supply to coffee shops remains unregulated and criminal enterprise is significantly involved.
- For harder drugs, the Netherlands has developed a comprehensive health-based harm minimisation approach, with many of their most notable policy developments arising from informal or experimental practices that were subsequently codified by the government. Needle exchanges, safe injecting facilities and heroin assisted treatment are all examples of this.
- Research on the impact of a period of intensive policing crackdowns in the 1990s has consistently shown that such enforcement crackdowns contributed to moving drug scenes outdoors and into suburbs, increasing both the number of people involved and the degree of risk they faced.
- The Netherlands has very low rates of problematic drug use, and arrests for minor possession are extremely rare. Drug users in the Netherlands also tend to use safer practices (for example, a very low proportion of opiate users inject), and this has led to relatively high survival rates and longer life expectancy for people who use heroin in the Netherlands.
- Due to substantial investment in sheltered housing, integrated drug treatment, public mental health care, services for the homeless and criminal justice interventions, most problematic drug users now live in supported housing where they receive welfare and treatment.
- In 2001 Portugaldecriminalised the purchase, possession and use of all illicit drugs. The change went beyond depenalisation, which removes custodial sentencing, but did not amount to full legalisation, as the production, manufacture and large-scale distribution of illicit drugs remain a criminal offence.
- Low-level offenders are now dealt with administratively by informal "dissuasion commissions". People found to suffer from addiction typically receive a suspended penalty in order to allow them to seek treatment. The commission may also impose fines or various personal restrictions on people's drug use.
- The implementation of this model is supported by investment in a systematic approach to treatment, harm reduction and social reintegration across the country.
- Studies have generally found that the change did not significantly increase consumption or decrease drug prices. Moreover, research estimated that decriminalisation has decreased the social costs of drug use by 18%.
- Initially, decriminalisation had a clear direct impact on prison populations in Portugal, with substantially drops in the prison population and fewer incarcerated people reporting drug use. Incarceration rates began to rise again in 2008, although the profile of incarcerated offenders is now different and it is likely other external trends contributed to this.
- There is some evidence of "net-widening, similar to that seen in Australia, leading to increasingly low level offenders being brought before commissions. This is an important implementation lesson in ensuring laws are explicitly designed to prevent mission creep.
Key themes from the international literature
- Research on drug criminalisation generally indicates that criminal sanctions for drug use or possession tend to exacerbate harm or undermine efforts at harm minimisation, particularly around safe injecting and treatment access.
- Major policing crackdowns and enforcement operations tend to increase harms to people who use drugs. Research from a number of countries has shown that crackdowns are more likely to move drug dealing and usage geographically than to reduce them, incentivise more unsafe transport practices, and discourage people from carrying clean injecting equipment.
- Incarceration is associated with increased risk of drug death after release, while decriminalisation is associated with improved social integration and employment.
- Decriminalisation has also been shown to reduce the strain on justice systems.
- A large proportion of drug revenue is reinvested in other organised crime activities such as extortion, fraud, pornography, illegal poaching and weapons trafficking. Creating legitimate drug markets can help to divert income that perpetuates other crimes.
- Moreover, research indicates that decriminalisation does not lead to significant increases in drug use or other crimes.
- A growing number of countries have implemented supervised injecting facilities or drug consumption rooms. Such interventions have consistently been shown to:
- Provide care in instances of overdose, preventing them from becoming fatal.
- Improve service users' knowledge and practice of safe injecting practices.
- Improve uptake of addiction treatment.
- Provide healthcare for other issues, particularly injection-related infections, to drug users who may otherwise not access mainstream clinics.
- Research on cannabis decriminalisation consistently finds that decriminalisation does not significantly increase demand or consumption, but there is some evidence that liberalising cannabis laws causes some people to substitute away from higher harm drugs such as opioids or alcohol.
- In general, cannabis decriminalisation provides an opportunity to divert people away from the harms of the justice system. However, there is some evidence that making low level drug offence processing easier creates a "net-widening" effect that catches more people who might otherwise have benefited from police discretion. This pitfall should be guarded against in the design of any decriminalisation approach.
- Fully legal cannabis markets can be implemented and regulated in a number of different ways to reduce illegal trafficking and drug revenue supporting other criminal activities.
- Decriminalisation, diversion schemes, and the limited instances of legalisation suggest that similar benefits can be found for "harder" drugs than cannabis. Punitive enforcement is associated with increased crime, while less punitive approaches like diversion are associated with higher rates of treatment and safer injecting practices.