Approaches to Decriminalizing Drug Use & Possession

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Approaches to

Decriminalizing

Drug Use & Possession

February 2015

More than 1.5 million drug arrests are made every year

in the U.S. – the overwhelming majority for possession

only.

Since the 1970s, the drug war has led to

unprecedented levels of incarceration and the

marginalization of tens of millions of Americans –

disproportionately poor people and people of color –

while utterly failing to reduce problematic drug use and

drug-related harms. The severe consequences of a

drug arrest are long-lasting – sometimes life-long. Drug

courts, moreover, have not improved matters.

One means to reduce the number of people swept into

the criminal justice system (or deported) for drug law

violations is to decriminalize drug use and possession.

Decriminalization is the removal of criminal penalties

for drug law violations (usually possession for personal

use).

Roughly two dozen countries, and dozens of

U.S. cities and states, have taken steps toward

decriminalization.

By decriminalizing possession and

investing in treatment and harm reduction services, we

can reduce the harms of drug misuse while improving

public safety and health.

In the U.S. today, roughly 50,000 people are

incarcerated in state prison for nothing more than

possession of small quantities of drugs.

Tens of

thousands more are in jail, on probation, or sent to

prison for a technical violation of probation or

parole involving drug use or possession.

Benefits of Decriminalization

Decriminalizing drug possession and investing in

treatment and harm reduction services can provide

major benefits for public safety and health, including:

 Reducing the number of people arrested;

 Reducing the number of people incarcerated;

 Increasing uptake into drug treatment;

 Reducing criminal justice costs and redirecting

resources from criminal justice to health systems;

 Redirecting law enforcement resources to prevent

serious and violent crime;

 Diminishing unjust racial disparities in drug law

enforcement and sentencing, incarceration and

related health characteristics and outcomes;

 Minimizing the social exclusion of people who use

drugs, and creating a climate in which they are

less fearful of seeking and accessing treatment,

utilizing harm reduction services and receiving

HIV/AIDS services;

 Improving relations between law enforcement and

the community; and

 Protecting people from the wide-ranging and

debilitating consequences of a criminal conviction.

Source: Federal Bureau of Investigation, 2014.

Decriminalization Does Not Affect Drug Use Rates

Countries that have adopted less punitive policies

toward drug possession have not experienced any

significant increases in drug use, drug-related harm or

crime relative to more punitive countries.

A World

Health Organization study, for example, found that the

U.S. had the highest lifetime drug use rates by a wide

margin, despite its punitive policies – concluding that

decriminalization has little or no effect on rates of use.

82%

18%

U.S. Drug Arrests, 2013

Possession Sales/Manufacturing

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In practice, decriminalization means that otherwise

law-abiding people are no longer arrested, let

alone incarcerated, merely for possessing a drug.

The Portuguese Decriminalization Model

In 2001, Portuguese legislators enacted a

comprehensive form of decriminalization of low-level

possession and consumption of all illicit drugs and

reclassified these activities as administrative violations.

Alongside decriminalization, Portugal significantly

expanded its treatment and harm reduction services,

including access to sterile syringes, methadone

maintenance therapy and other medication-assisted

treatments.

After nearly a decade and a half, Portugal has

experienced no major increases in drug use. Yet it has

seen reduced rates of problematic and adolescent

drug use, fewer people arrested and incarcerated for

drugs, reduced incidence of HIV/AIDS, reduced drug-

induced deaths, and a significant increase in the

number of people receiving treatment.

According to

the United Nations, “Portugal’s policy has reportedly

not led to an increase in drug tourism. It also appears

that a number of drug-related problems have

decreased.”

Independent research concludes that

“there is ample evidence of a successful reform.”

“[C]ombining the removal of criminal penalties

with the use of alternative therapeutic responses

to dependent drug users… can reduce the burden

of drug law enforcement on the criminal justice

system, while also reducing problematic drug

use… [and] may offer a model for other nations

that wish to provide less punitive, more integrated

and effective responses to drug use.”

— Hughes and Stevens, British Journal of Criminology, 2010.

Other Countries’ Experiences

In recent years, many other countries have taken steps

toward decriminalization. The effectiveness of these

approaches varies considerably depending on many

factors – such as the quantities used to define

“personal possession,” and the degree to which the

policy is part of a larger health-centered agenda.

Mexico: Mexico’s 2009 decriminalization law is mostly

symbolic. The threshold limits defining “possession”

versus “trafficking” were set very low and penalties for

“trafficking” were increased. Thus, there is evidence

that Mexico’s law has actually increased the number of

people arrested and sanctioned for drug law violations,

a phenomenon known as “net-widening.” Mexico also

has not made the same investments in treatment and

harm reduction as Portugal.

Czech Republic: The Czech Republic, by contrast, has

long integrated many elements of harm reduction and

treatment into its drug policy, including low-threshold

opioid substitution treatment and syringe access

programs that are some of the most expansive in

Europe. After its post-Soviet transition, personal drug

possession was not criminalized, but in the late 1990s,

the government imposed criminal penalties on

possession of a “quantity greater than small” (though

this quantity was never defined). The Czech

government conducted an in-depth evaluation and

found that criminal penalties had no effect on drug use

or related harms and were therefore unjustifiable.

2009, the country formally adopted a decriminalization

law that defines personal use quantities, establishing

some of the most pragmatic threshold limits of any

country to have yet decriminalized. What data are

available indicate that the Czech model seems to be

producing net societal benefits.

Netherlands: The Netherlands has a long-standing

policy to instruct prosecutors not to prosecute

possession of roughly a single dose of any drug for

personal use. Neither civil nor criminal penalties apply

to possession of amounts equal to or lesser than this

threshold. The Netherlands has lower rates of

addiction than the U.S. and much of Western Europe.

The Dutch also have much lower heroin overdose

rates and prevalence of injection drug use compared

to the U.S. The number of young people who use

drugs problematically has also decreased.

Colombia: A series of court decisions in Colombia

essentially decriminalized small amounts of marijuana

and cocaine for personal use. In 2012, the Colombian

Constitutional Court reconfirmed its decriminalization

ruling – followed by the passage of a new law that

makes drug addiction a matter of public health and

obliges the state to guarantee comprehensive

treatment for those who seek it voluntarily.

Argentina: In 2009, Argentina’s Supreme Court ruled

that criminalizing possession of drugs for personal use

is an unconstitutional violation of the right to privacy

and personal autonomy. As a consequence,

substantial reforms have been introduced in Congress

to formalize the Court’s ruling.

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“What would drug reform look like? Most serious

commentators call for decriminalization – that is,

downgrading of the status of personal drug use –

so that using drugs is not a crime or is a lesser

one….This is not the same as legalizing drugs.”

– British Medical Journal, 2012.

Efforts to Reduce Drug Penalties in the U.S.

State Efforts to Reduce Penalties. Eighteen states and

Washington, DC have reduced or eliminated criminal

penalties for personal marijuana possession. Fourteen

states, as well as Washington, DC and the federal

government, already treat personal possession of

other drugs as a misdemeanor – not a felony.

California became the most recent state with the

adoption of Proposition 47, “The Safe Neighborhoods

and Schools Act,” in November, 2014. Prop. 47

changed six low-level crimes, including drug

possession, from felonies (or wobblers) to

misdemeanors. The independent Legislative Analyst’s

Office projected the state could save up to $250 million

annually, and counties will also save hundreds of

millions of dollars each year. Savings will be invested

in treatment and mental health services, K-12 schools,

and victim services. Prop. 47 is already significantly

easing jail overcrowding in California counties.

In the nation’s capital, a 2013 Public Policy Polling

survey found that more than half (54 percent) support

decriminalizing possession of small amounts of drugs

other than marijuana.

Legislation introduced in

Vermont would make it the first state to commission a

study of the likely impact of decriminalization.

A 2014

Pew poll found that roughly two-thirds of respondents

believe that people should no longer be prosecuted for

possession of drugs like cocaine or heroin.

In addition, 21 states and the District of Columbia have

adopted 911 Good Samaritan immunity laws, which

essentially decriminalize simple possession and other

minor drug offenses at the scene of an overdose.

U.S. jurisdictions with reduced penalties do not have

higher rates of drug use. In fact, many states that treat

possession as a misdemeanor have slightly lower

rates of illicit drug use and higher rates of admission to

drug treatment than states that consider it a felony.

Seattle’s LEAD Program. Seattle recently instituted a

pilot program known as “Law Enforcement Assisted

Diversion,” or LEAD, that aims to bypass the criminal

justice system entirely. Instead of arresting and

booking people for certain drug law violations,

including drug possession and low-level sales, police

in two Seattle neighborhoods immediately direct them

to drug treatment or other supportive services.

LEAD

is a promising step in the direction of decriminalization

– though to be most successful, programs like LEAD

must empower health professionals, rather than law

enforcement, to assess and deliver services.

Supporters of Decriminalization

World Health Organization:

“Countries should work toward developing policies and

laws that decriminalize injection and other use of drugs

and, thereby, reduce incarceration. Countries should

work toward developing policies and laws that

decriminalize the use of clean needles and syringes....

Countries should ban compulsory treatment for people

who use and/or inject drugs.”

American Public Health Association:

“[E]liminate federal and state criminal penalties and

collateral sanctions for personal drug use and

possession offenses and avoid unduly harsh

administrative penalties, such as civil asset forfeiture.”

Organization of American States:

“Decriminalization of drug use needs to be considered

as a core element in any public health strategy.”

Human Rights Watch:

“Drug control policies that impose criminal penalties for

personal drug use undermine basic human rights…

Subjecting people to criminal sanctions for the personal

use of drugs, or for possession of drugs for personal

use, infringes on their autonomy and right to privacy…

The criminalization of drug use has undermined the right

to health… [G]overnments should rely instead on non-

penal regulatory and public health policies.”

NAACP:

“The U.S. government [should] pilot the Portugal

Decriminalization program in three U.S. cities and apply

the lessons learned… throughout the United States.”

National Latino Congreso:

“[T]he 2010 National Latino Congreso…urge[s] state and

federal governments to follow the successful example of

countries like Portugal that have decriminalized personal

adult possession and use of all drugs, which has

improved the health of drug users, reduced incarceration

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and death, and saved taxpayer money with no negative

consequences to society.”

International Federation of Red Cross and Red

Crescent Societies:

“Injecting drug use is a health issue. It is an issue of

human rights. It cannot be condoned, but neither should

it be criminalized.”

Global Commission on Drug Policy:

“Stop criminalizing people for drug use and possession –

and stop imposing “compulsory treatment” on people

whose only offense is drug use or possession.”

Recommendations

The Drug Policy Alliance supports eliminating federal

and state criminal penalties and collateral sanctions for

drug use and possession violations.

Arresting people simply for using a drug is

ineffective, unjust, costly and harmful.

Administrative penalties that unduly interfere with a

person’s life – such as civil asset forfeiture,

administrative detention, driver’s license suspension,

or excessive fines – should be avoided.

Federal Bureau of Investigation, "Crime in the United States, 2013," (Washington, DC:

U.S. Department of Justice, 2014).

Eric L. Sevigny, Harold A. Pollack, and Peter Reuter, "Can Drug Courts Help to Reduce

Prison and Jail Populations?," The Annals of the American Academy of Political and

Social Science 647, no. 1 (2013); Drug Policy Alliance, Drug Courts Are Not the Answer:

Toward a Health-Centered Approach to Drug Use (Drug Policy Alliance, 2011).

See Caitlin Elizabeth Hughes and Alex Stevens, "What Can We Learn from the

Portuguese Decriminalization of Illicit Drugs?," British Journal of Criminology 50, no. 6

(2010): 999.

Ari Rosmarin and Niamh Eastwood, "A Quiet Revolution: Drug Decriminalisation Policies

in Practice across the Globe," (London: Release, 2012).

E. Ann Carson, "Prisoners in 2013," (Washington, DC: U.S. Department of Justice,

Bureau of Justice Statistics, 2014), Tables 13 & 14.

Federal Bureau of Investigation, "Crime in the United States, 2013."

See Hughes and Stevens, "What Can We Learn from the Portuguese Decriminalization

of Illicit Drugs?; Robert J. MacCoun and Peter Reuter, Drug War Heresies: Learning from

Other Vices, Times, and Places (Cambridge University Press, 2001); Robin Room et al.,

Cannabis Policy: Moving Beyond Stalemate (Oxford University Press, USA, 2010); Eric

W Single, "The Impact of Marijuana Decriminalization: An Update," Journal of public

health policy (1989); Mike Vuolo, "National-Level Drug Policy and Young People's Illicit

Drug Use: A Multilevel Analysis of the European Union," Drug and Alcohol Dependence

131, no. 1-2 (2013); Organization of American States, "The Drug Problem in the

Americas: Analytical Report," (2013), 6; National Research Council, The Growth of

Incarceration in the United States: Exploring Causes and Consequences (Washington,

D.C.: The National Academies Press, 2014), 154.

Louisa Degenhardt et al., "Toward a Global View of Alcohol, Tobacco, Cannabis, and

Cocaine Use: Findings from the Who World Mental Health Surveys," PLoS medicine 5,

no. 7 (2008).

See, for example, Hughes and Stevens, "What Can We Learn from the Portuguese

Decriminalization of Illicit Drugs?; Serviço de Intervenção nos Comportamentos e nas

Dependências (SICAD), "Relatório Anual 2013 – a Situação Do País Em Matéria De

Drogas E Toxicodependências," (2014).

United Nations Office on Drugs and Crime (UNODC), "World Drug Report 2009,"

(Vienna: United Nations Office on Drugs and Crime, 2009).

Caitlin Elizabeth Hughes and Alex Stevens, "A Resounding Success or a Disastrous

Failure: Re‐Examining the Interpretation of Evidence on the Portuguese Decriminalisation

of Illicit Drugs," Drug and Alcohol Review 31, no. 1 (2012).

"What Can We Learn from the Portuguese Decriminalization of Illicit Drugs?," 1018.

See Kellen Russoniello, "The Devil (and Drugs) in the Details: Portugal's Focus on

Public Health as a Model for Decriminalization of Drugs in Mexico," Yale Journal of Health

Policy, Law, and Ethics 12, no. 2 (2013); Catalina Perez Correa, "(Des) Proporcionalidad

Y Delitos Contra La Salud En México," (CIDE, 2012); Carlos Alberto Zamudio Angles and

Asael Santos Santiago, "La Aplicación De La Ley Contra El Narcomenudeo: El Nuevo

Reto Para Las Instituciones De Seguridad Y Justicia De La Ciudad De México," Revista

El Tribunal Superior de Justicia del Distrito Federal 6, no. 15 (2013).

Countries or states that pursue decriminalization using

threshold limits should set maximum-quantity

thresholds that reflect the realities of drug consumption

in their jurisdictions. If threshold limits are set too low,

the policy may have no impact, or may increase the

number or length of incarcerations.

Decriminalization policies should be accompanied by

an expansion of harm reduction and treatment

programs, including medication-assisted treatment.

Ending the overreliance on the criminal justice

system in drug control is a public health priority

In the absence of decriminalization, states should at

minimum reclassify possession of illicit drugs as a

misdemeanor or an infraction to lessen the severe

consequences that accompany a felony conviction.

Local and state governments can take a step towards

decriminalization by employing pre-arrest diversionary

practices and adopting 911 Good Samaritan laws.

The U.S. and the international community must open a

debate about regulatory alternatives to drug prohibition

in order to address the harms of illicit drug markets and

other problems not alleviated by decriminalization.

Zabransky T. et al., "Impact Analysis Project of New Drugs Legislation (Summary Final

Report)," ed. Secretariat of the National Drug Commission Office of the Czech

Governmment (Prague2001).

Joanne Csete, "A Balancing Act: Policymaking on Illicit Drugs in the Czech Republic,"

(New York: Open Society Foundations, 2012).

Alex Stevens, Drugs, Crime and Public Health: the political economy of drug policy.

Abingdon: Routledge, 2010: 122-23.

I. T. Gilmore, "Drug Policy Debate Is Needed," BMJ 344(2012).

California, Delaware, Iowa, Maine, Massachusetts, Mississippi, New York,

Pennsylvania, South Carolina, Tennessee, Vermont, West Virginia, Wisconsin and

Wyoming.

County of Los Angeles Public Safety Realignment Team, "Public Safety Realignment:

Year-Three Report," (2015), 24-25. See also Joshua Sabatini, "Thousands of Sf Felony

Cases under Prop. 47 Reduction Review," San Francisco Examiner, January 23 2015.

Public Policy Polling, "Washington, D.C., Survey Results," (2013).

General Assembly of the State of Vermont, An Act Relating to a Study of a Noncriminal,

Public Health Approach to Illicit Drug Use 2014, H712,

http://www.leg.state.vt.us/docs/2014/bills/Intro/H-712.pdf.

Pew Research Center, "America’s New Drug Policy Landscape," Pew Research Center,

April 2 2014.

Substance Abuse and Mental Health Services Administration, "2012-2013 Nsduh State

Estimates of Substance Use and Mental Disorders," (Rockville, MD: Substance Abuse

and Mental Health Services Administration, 2014), Tables 1, 21.

LFA Group, "Law Enforcement Assisted Diversion (L.E.A.D.) Program and Evaluation

Plan Narrative," (2011); The Defender Association, "Law Enforcement Assisted Diversion

(L.E.A.D.): A Pre-Booking Diversion Model for Low-Level Drug Offenses," (2010).

World Health Organization, "Policy Brief: H.I.V. Prevention, Diagnosis, Treatment and

Care for Key Populations: Consolidated Guidelines July 2014," (Geneva: World Health

Organization, 2014), 91.

American Public Health Association, "A.P.H.A. Policy Statement 201312: Defining and

Implementing a Public Health Response to Drug Use and Misuse," (Washington, DC:

American Public Health Association, 2013).

Organization of American States, "The Drug Problem in the Americas: Analytical

Report."

Human Rights Watch, "Americas: Decriminalize Personal Use of Drugs; Reform

Policies to Curb Violence, Abuse," (2013).

NAACP National Board of Directors, "Exit Strategy to End the War on Drugs," (Houston.

Texas: NAACP, 2012).

National Latino Congreso, "Resolution 11.03 - Resolution to Explore Alternatives to

Drug Prohibition in Order to Reduce Drug-Related Harm and Eliminate Violence Along the

United States-Mexico Border," (2010).

International Federation of Red Cross and Red Crescent Societies, Statement to

the United Nations Commission on Narcotic Drugs, 55th Session).

Global Commission on Drug Policy, "Taking Control: Pathways to Drug Policies That

Work," (2014).