Saturday, 17 December 2011

The spurious case against decriminalization

 This article first appeared in the Centre for Policy Studies blog. Alex Stevens response is posted below.

by Kathy Gyngell

Professor Neil McKeganey and Kathy Gyngell
Drugs decriminalisation has become the new orthodoxy. It is an idea that captured the broadsheets and has won support from the ranks of the great and the good. It is the outcome of a considered campaign of libertarians who can now boast an All Party Parliamentary Group in support of the cause. Drug decriminalisation promises a panacea, a solution to the drug problem, an end to the criminalisation of children and an opportunity to realise the libertarian's dream of freedom for all to take drugs openly. Too good to be true? (£) In a word - Yes.

Hype, selective stats and 'the resounding success' (which equals no nightmare scenario has occurred) of Portugal's formal decriminalisation experiment have made for a persuasive case - a case that rests on the claim that decriminalisation will, if not solve the drug problem, make it better than at present. This is critical. For without it the libertarian agenda for its own sake, the application of Mill's principle of radical individualism to drugs policy, is a step too far. For only its most avowed followers can believe that the regular use of, or addiction to, most currently illicit drugs only affects the person who takes them. And even fewer would be persuaded to back decriminalisation on the grounds that drugs are innately a good thing - that they open the door to perception - the philosophy of the founders of the Beckley Foundation, the appointed collaborators of the new Parliamentary Group. But if a case for the common good can be established, of course it is a different matter.

That the common good would be served by decriminalising drugs however is far from proven. Portugal, which started such an experiment in 2001, has become the decriminalisation lobby's proof of concept. The 'proof' being that the policy has decreased rather than increased the harms associated with drug use. As with the climate change lobby much effort has gone into the presentation and the communication of the statistics involved. But, as with climate change debate, the statistics that have been assembled in telling the Portuguese story of the benefits of decriminalisation are far from clear cut.

The danger of both exaggerating and extrapolating from the Portuguese example are evident. Professor Alex Stevens (an addictions expert from the University of Kent) concluded not long ago that the "Portuguese experience cannot provide a definitive guide to the effects of decriminalisation of drugs but only indications of the results of decriminalisation in the specific Portuguese context. It is not possible to tell the extent to which changes were caused by decriminalisation or the wider drug strategy."  

Against his own better judgement he decided to contradict himself arguing that, "the lack of evidence that decriminalisation caused significant increases in drug use and related harms shifts the burden of proof towards those who claim that it is necessary to criminalise young people in order to limit drug harms". Yet does it sound even remotely reasonable that the burden of proof should now switch from those arguing for a policy of drug decriminalisation to those that support the policy, followed in most countries in the world, of drugs remaining illegal on the basis of one single country's disputed experience of decriminalisation success? We hardly think so.

So what can and can't be said? Has the prime Portuguese objective of reducing drug usage and abuse been achieved? The answer, to date, has to be no. Evidence for problem drug use and injecting drug use going down is for the period between 2000 and 2005, most plausibly the result of the major diversion of addicts to treatment at that time. No data is published for the period since then. These are however completely inconsistent with the 2007 National Survey which show that overall drug use has in fact risen very considerably since 2001 when decriminalisation was introduced; that heroin has risen from 0.7% to 1.1%; that cocaine and amphetamine use has doubled. These figures throw serious doubt on on the earlier PDU and IDU claims, especially since national surveys are more likely to under than over report hard drug use. The slight decline noted in children's use is to 2007 (ESPAD) reflecting, but less than, a Europe wide trend.
Drugs death data in Portugal remains a matter of unresolved controversy there. Significant rises in drug deaths are reported by Portugal's Special Registry of the National Institute of Forensic Medicine. These have been disputed as misleading by Professor Alex Stevens. But deaths reported by the IDT, though lower, are consistently up too since 2003. Neither are official until the major discrepancies are resolved. Further it may be the case that the undisputed increase of toxicological autopsies (the consequence of an increase in suspicious deaths) is itself related to the well documented increase in hard drug use that Professor Stevens failed to acknowledge.

None of this is either definitive or necessarily attributable to any one aspect of policy. So far the decriminalising lobby has chosen not to mention that in 2008 Portugal suddenly found itself with the sixth-highest cocaine seizure total in the world, a seven fold increase from 2001, nor that a murder increase of 40% (peculiar to Portugal) reported in the World Drug Report (P168) over this same period of time possibly, the Report speculates, related to increased trafficking activity.

With little substantive evidence from Portugal the case for decriminalisation falls back on Baroness Meacher's repeated and emotive rhetoric (£) about the 'criminalisation' of our young people and criminalisation regimes.

Professor Stevens too casts a similar but more subtle aspersion. His letter to the Times conjures up a curious logic of the law inherently 'necessitating' the 'criminalisation' of young people in order to limit drug harms.

This perception or interpretation is not just a matter of metaphysical debate. It belies the facts. In 2009, of the 162,610 recorded cases of cannabis possession in England and Wales, over half - 86,953 - were dealt with by a procedure known as a cannabis warning. This has no legal status and does not lead to a criminal record. 19,137 were dealt with through cautions and the 11,492 penalty notices for disorder, did not involve a court appearance, a fine or imprisonment. Only 22,748 cannabis cases, roughly one in eight, ended in court. Thousands more had no recorded outcome at all.
Second to Portugal, the UK has the lowest rate of custodial sentencing in the EU for drug possession, some twenty times less than the Netherlands (a fact that may come as a surprise to many and one for them to chew on) whose rate of problem drug use is a third of ours and considerably less than Portugal's.
Had Lady Meacher acknowledged that we have, de facto, already decriminalised drug use she would not have been far wrong. It would have given more logic and coherence to her case. It would not have made victims of young people. It might have led her to see how misplaced her optimism is that decriminalisation, given an unending supply of treatment, is nothing to fear. For our treatment services, despite massive expansion and a current cost to the tax payer of a billion pounds a year, have yet to crack the challenge of getting more than 3% of their clients drug free.
She now says she wishes to pursue the laudable quest of learning from other countries' drug policies. If so she could do worse than turn to Sweden (a country of similar population size to Portugal) where drug use and possession continue to be against the law but where an enlightened process entirely expunges the criminal record of young people who consent to proven drug treatment programmes. Robust intervention and support for a multiplicity of problems, of which drug use may just be an expression, is the order of the day. As a country with one of the lowest levels of illegal drug use anywhere in Europe, it is perhaps more worthy of her attention.

From Prof Alex Stevens in response:
First, if decriminalisation were the orthodoxy, it would be the policy of the coalition government or its opposition. It is not.

Secondly, the case for decriminalisation does not rest on it producing more 'common good' than criminalisation. Given that criminalisation produces well documented harms (such as high costs to the taxpayer, damage to the prospects of young people who come into adversarial contact with the police and/or get a criminal record, and high racial disparities in enforcement), it is only necessary for advocates of decriminalisation that it produces no more drug-related harm than criminalisation. This is why you are wrong to suggest that there is a contradiction between the two quotes of mine that you use. The Portuguese experience cannot prove that decriminalisation produces less harms than criminalisation. But neither does it show that it is more harmful. Given that the argument for criminalisation is exactly that decriminalisation *does* produce more harm, then the Portuguese case makes it harder for people to make this argument (at least, it does if they want to use the evidence thoroughly, rather than just picking the indicators, countries and time periods that fit their views).

Thirdly, your use of the Portuguese data is, again, selective and misleading. You point out that the reduction in 16 year old drug use reflected other countries' figures, but not that the reported increase in cocaine use was also seen in neighbouring Southern European countries. You point to a rise in seizures and murders and suggest that this indicates increased trafficking. You appear not to have considered the possibility that the rise in seizures was related to the police shifting their attention to the higher end of the drug market (as intended by the policy and as indicated by the smaller number of larger seizures), or that the violence may have been linked to this law enforcement disruption of the market (as several studies in other countries have found; see for example

Fourthly, you have moved since your letter to The Times (which claimed a definitive increase in drug related deaths) to say that this issue is unresolved. But you fail to acknowledge that the indicator which shows a decrease since 2001 is a better indicator than that which you have used to suggest an increase. No indicator of drug related death is perfect, but the measure that relies on physicians' judgements on cause of death is better than one that depends on the numbers of corpses that happen to be tested for the presence of any drug (whether it was fatal or not).

Fourthly, you suggest that it is inappropriate to use the term 'criminalisation' to describe the UK’s current policy. I agree with you that the cannabis warning has created de facto decriminalisation, but only for some drug users. It only applies to cannabis users who are 18 or over. Younger people, users of other drugs and people who arouse the suspicion of the police (who retain the discretion to arrest for cannabis possession) still face arrest. It is not ‘curious logic’ to suggest that the current law necessarily criminalises young people. Young people make up the majority of illicit drug users. Making possession of some drugs a criminal offence makes criminals of these young people.

Fifthly, your claim that the Netherlands is a heavier user of imprisonment for drug possession is bizarre. You give no source for it, but I assume you are using the EMCDDA 2009 report on drug offences ( This does indeed suggest that the Netherlands imprisons a higher proportion of recorded offenders than the UK. But to interpret that as suggesting that drug possession is less criminalised in the UK you would have to ignore that these proportions relate only to offences that are recorded when the police catch drug users. In the Netherlands, the police ignore offences of possession of under 5 grams of cannabis (i.e. the majority of drug possession offences that occur). In the UK, in contrast, the police have used the cannabis warning to massively increase the numbers of this type of offence that they record. The comparison you make is therefore invalid.

Finally, you apparently accept the point - in the case of Portugal - that drug laws in one country cannot prove the effects of drug laws. But then you go on to use selective evidence from Sweden to try and prove that criminalisation works. You fail to mention that there is no cross-national correlation between drug laws, arrests or imprisonments and indicators of drug harms.

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