 | NORML News: Lessons from Portugal |
 Portugal is no longer the great power it once was when it divided the world between itself and Spain. Like New Zealand, it’s a small country that has influence far beyond its size. Today, Portugal is the country that may influence drug policy reform world-wide, writes Phil Saxby.
Portugal is important because it’s the only member of the European Union whose law explicitly declares drug use to be "decriminalised". Not only that, but the law applies to ALL drug use, not just cannabis. So, while many European countries have de facto decriminalisation of some drugs – those considered less harmful – all except Portugal still have formal criminal sanctions against drug use.
Since the law was changed in 2001, its real effects can be studied – to see if it is working as intended. American lawyer Glenn Greenwald recently conducted an analysis on behalf of the CATO Institute. He says: "Whatever else is true, the empirical evidence leaves no doubt that Portuguese decriminalisation has been a resounding success."
Even a sceptic at the CATO presentation "conceded that decriminalisation achieved its policy goals and produced none of the bad results which decriminalisation opponents warned about.":
* It succeeded in reducing the health consequences of drug use.
* It did not lead to Lisbon becoming a drug tourist destination.
* Most importantly, while there was some increased usage in the age bracket 20-24, in the vital age group 15-19, and the younger, school-age group (Year 8-10) there was a decrease in almost all types of drug use since decriminalisation!
Walter Kemp, a spokesperson for the United Nations Office on Drugs and Crime, says decriminalisation in Portugal "appears to be working." He could give only one reason for his office not supporting decriminalisation: "because it smacks of legalisation." Is there any other area of public policy where officials admit something works, but remain opposed to it? Sadly, drug policy is often driven by ideology, not evidence.
And while American officials (from the Drug Enforcement Administration and the Bureau of International Narcotics and Law Enforcement Affairs) repeatedly declined to comment on the report, Newsweek magazine has noted: "A new study shows that Portugal, which became the only Western nation to decriminalize possession of ALL drugs (even heroin and meth) in 2001, saw no sharp increase in usage among the young and no drug tourism. Drug deaths are way down". (Newsweek: June 1, 2009)
What happened in 2001?
On July 1, 2001, Portugal decriminalised (not legalised) all drugs, including cocaine and heroin. The result is that drug possession for personal use and drug usage itself are still legally prohibited, but violations were removed completely from the criminal realm. Infractions of the prohibitions were to be treated as administrative violations and receive non-criminal treatment.
Personal use was defined as being sufficient for 10 days’ use by one person, and drug trafficking continues to be prosecuted as a criminal offence.
Decriminalisation or Depenalisation?
The Portuguese law of 2001 must be distinguished from other law reforms in Europe which have resulted in depenalisation – a reform sometimes promoted in New Zealand. The European Monitoring Centre for Drugs and Drug Addiction has defined "decriminalisation" and "depenalisation" as:
Decriminalisation comprises removal of a conduct or activity from the sphere of criminal law. Prohibition remains the rule, but sanctions for use …. no longer fall within the framework of the criminal law.
Depenalisation means relaxation of the penal sanction provided for by law. In the case of drugs, and cannabis in particular, depenalisation generally signifies the elimination of custodial penalties (that is, jail terms). Fines, a police record, and parole still remain as possible penalties.
One of the objectives of the law change was to take drug use out of the criminal arena so that Portugal could best meet health objectives, such as reducing drug-related deaths and the spread of HIV and Aids. Research had shown that fear of the criminal justice system was one of the major reasons for drug users not to seek help, and the new Portuguese drug policy was adopted to solve a worsening drug problem. It worked!
"Commissions of Dissuasion"
Police officers who spot drug use or possession can issue citations to the offender, but are not permitted to make an arrest. Instead of criminalisation, Portuguese law establishes "Commissions for Dissuasions of Drug Addiction" with sole responsibility for dealing with administrative drug offences. The Commission is not a "Drug Court" and avoids any such appearance. Its three members include one lawyer and two appointed members (usually with a medical or social services background). If the commission finds compelling evidence of drug trafficking, it will refer the case to the criminal court.
Penalties that the Commission may set:
* The commission usually issues a warning, and penalties cannot be imposed for non-addicted consumers with no prior offences.
* As “a last resort”, non-addicted consumers might have to pay a fine or a non-monetary penalty, ranging from 25 euros upwards.
* An addict with no prior offences who agrees to treatment cannot be penalised.
* Addicts cannot be forced to seek treatment, but the Commission may (and usually does) make suspension of sanctions conditional on the offender seeking treatment. If treatment is completed and there is no subsequent offence, the proceedings cease.
* The Dissuasion Commissions are able to impose on addicts a wider range of sanctions, including suspension of the right to practice a licensed profession; a ban on visiting high-risk locales (such as nightclubs); a ban on associating with specified individuals, and so on. Penalties would depend on factors including the type of drug consumed and whether consumption was public or private.
* Minors (those under 18) who are cited for drugs enter the same process and are assisted by a legal representative.
* Providing drugs to a minor (or people with mental illness) continues to be forbidden. Trafficking is punishable by imprisonment of between 4 to 12 years.
Decriminalisation in Practice
The effect that the decriminalisation regime has had on police conduct with regard to drug users is still being debated, according to Greenwald. There may be a generational difference within the Police. "Younger officers (may) view the administrative process as the best hope for containing addiction."
Officials familiar with the Dissuasion Commission process "emphasize that the overriding goal of that process is to avoid the stigma that arises from criminal proceedings. Each step of the process is structured so as to de-emphasize or even eliminate any notion of 'guilt' from drug usage and instead to emphasize the health and treatment aspects of the process… At all times, respect for the alleged offender is emphasized."
In 2005, in a country of 10 million, there were 3,192 commission rulings (compared to 15,000 arrrests per year in New Zealand, with a population of 4 million). Of those, 83 percent suspended the proceeding, and only 15 percent imposed actual sanctions. Of the cases where sanctions were imposed, the overwhelming majority merely required the offenders to report periodically to the authorities.
Drug Tourism fears prove groundless
Before the enactment of the decriminalisation law, opponents insisted that the proposed change in law would make Portugal a centre of so-called drug tourism.
Such fears have turned out to be misguided. Roughly 95 percent of those cited for drug offences every year since decriminalisation have been Portuguese. Next were Angolans. Citizens of all other European Union nations made up barely 1 percent.
Political Climate for Reform
Greenwald reports that the political impetus for decriminalisation was the perception that drug abuse was becoming an uncontrollable social problem, and the main obstacles to effective policies were the treatment barriers and resource drain imposed by the criminalisation regime.
Decriminalisation was driven not by the perception that drug abuse was an insignificant problem, but rather by the consensus view that it was a highly significant problem, that criminalisation was exacerbating the problem, and that only decriminalisation could enable an effective government response.
The law change occurred only after extensive study by an elite commission, the Commission for a National Anti-Drug Strategy, which in 1998 recommended decriminalisation as the optimal strategy for combating their drug problems.
Portugal – lessons for New Zealand?
New Zealand, like Portugal in 1998, is widely perceived to have increasing social problems arising from illegal drug use, and has given the task of finding solutions to its Law Commission. Internationally, the trend is towards a health-based approach, as in Portugal, and the Law Commission is likely to follow this trend.
Long term, New Zealand needs to look at alternatives to prohibition itself, not merely the decriminalisation of drug use. However, as a working model of how to improve health outcomes and combat addiction effectively, the Portuguese model offers considerable hope.
Drug law reform requires political will – and the most hopeful sign that Portugal could be a model for New Zealand is that decriminalisation has become increasingly popular in Portugal since 2001. Very few politicians are agitating for repeal.
Changes may need to be made to Portugal’s new law to make it more efficient and effective, but there is no real debate about whether drugs should once again be criminalised. New Zealand MPs, take note!
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This article draws mainly on a study on the success of drug decriminalisation in Portugal by Glenn Greenwald for the CATO Institute. Click here for the CATO Portugul Report and here for the Portugal video presentation.
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