Drug Decriminalization & Legalization

What is decriminalization?

Decriminalization refers to the repeal of laws and policies that define drug use and/or the possession of drugs for personal use as a criminal offence. Trafficking and production are still considered criminal activities. Drug use becomes an administrative, rather than a criminal, offence and is moved to the jurisdiction of public health.

The harms associated with the criminalization of drugs are well documented, and include high rates of incarceration for nonviolent drug offences and the associated consequences, stigma and discrimination, and barriers to service provision. People are denied services or are afraid to use the services and supports they need. People are evicted from their housing and have their children taken away. They are also forced into unsafe spaces and behaviours, which can lead to overdoses and blood-borne infections like HIV and Hepatitis C (Shepherd & Caldwell, 2017).

Shifting Focus 

Decriminalization is not about simply making drug use legal. Rather, it is about shifting focus to public health concerns that are more relevant to solving the problems associated with drug use. The use of controlled substances is not so much the cause of social ills as a symptom of them. Problematic substance use is motivated by emotional and physical abuse, loneliness, depression, trauma, poverty as well as genetic factors. While some substances certainly lend themselves to addiction more readily than others, it is difficult to claim that problematic use is a consequence of use alone. It is necessary to implement social programs that fill the care gaps left by punitive approaches to drug policy when adopting decriminalization. Ensuring access to social supports can address the conditions that lead to problematic substance use in the first place (CSSDP, n.d.).

What are the Benefits of Decriminalization?

Removing criminal penalties for drug possession and low-level sales would (Drug Policy Alliance, n.d.):

  • Save money and human lives by reducing prison costs and population size

  • Free up law enforcement resources to be used in more appropriate ways

  • Prioritize health and safety over punishment for people who use drugs

  • Reduce the stigma associated with drug use so that individuals are encouraged to seek healthcare, treatment and other support

  • Remove barriers to evidence-based harm reduction practices, treatments, and research such as drug checking, opioid-substitution therapy, medical marijuana, and psychedelic-assisted therapy research

Will Decriminalizing Drugs Increase Drug Dependency or Crime?

A common fear is that decriminalizing drugs will lead to more drug dependency and crime. There is no indication this is true. Data from Canada and around the world suggests that treating problematic drug use as a health issue, instead of a criminal one, is a more successful model for keeping communities healthy and safe.

Portugal decriminalized drug possession in 2001. More than a decade later, drug use has remained about the same – but arrests, incarceration, disease, overdose and other harms are all down (Drug Policy Alliance, n.d.):

  • Portugal’s drug use rates (which used to be high) remain below the European average and far lower than rates of drug use in Canada and the U.S.

  • Between 1998 and 2011, the number of people in drug treatment increased by more than 60%.

  • The number of new HIV diagnoses dropped dramatically – from 1,575 cases in 2000 to 78 cases in 2013 – and the number of new AIDS cases decreased from 626 in 2000 to 74 cases in 2013

  • Drug overdose fatalities also dropped from about 80 in 2001 to just 16 in 2012

  • The number of people arrested and sent to criminal courts for drug offences annually declined by more than 60% following decriminalization.

  • The percentage of people behind bars in Portugal for drug law violations also decreased dramatically, from 44% in 1999 to 24% in 2013

Decriminalization models 

Decriminalization is implemented in a variety way around the world. So far there are 21 countries that have adopted models that fit one of the following descriptions (CSSDP, n.d.):

De Jure (by law):

No Offence:

  • Simple possession and consumption is not punishable and a clear distinction is made between personal use and intent to supply

  • Police do not have authority in absence of intent to supply and can only confiscate drugs

  • Example: Uruguay

Police Discretion:

  • Possession is an administrative offence

  • Police can determine if the offence is worth applying sanctions, such as confiscation, warning or a fine

  • Example: Spain

Administrative Decision:

  • Possession is an administrative offence

  • Police can detain people for possession and refer them to an administrative body. Only intent to supply is a criminal offence

  • Applicable sanctions: confiscation, warning or fine, referral to treatment (states can implement “dissuasion committees” comprised of legal, health and social work professionals)

  • Example: Portugal, Czech Republic

Criminal Justice Decision:

  • Possession is an administrative offence

  • Police can detain for possession but have no authority to determine nature of offence – this responsibility is referred to prosecutors or the judiciary who may use confiscation, warning or fine, or referral to treatment as a sanction

  • Example: Germany, Peru, Estonia

De Facto (by non-enforcement of laws):

No Sanction:

  • Possession is criminal but police and prosecution are given instructions not to intervene based on discretionary powers

  • Police do not have authority to detain if there is no indication of intent to supply, and may only confiscate drugs

  • Example: The Netherlands

Criminal Justice Diversion:

  • Possession is criminal but legislation provides alternative sanctions aside from prison

  • Police can arrest but have no authority to determine the nature of the offence. Sanctions may include confiscation, warning or fine, obligatory treatment, or community service

  • Example: Some US states

(Canadian Students for Sensible Drug Policy [CSSDP], n.d.)

What is Legalization?

Legalization refers to a status whereby the production, sale, and consumption of particular drugs are legal under certain circumstances. There may be regulations and restrictions on the manner and location of production, sale, and use - in order to support public health.

Drug legalization is in line with regulatory efforts to restrict access to children, dissuade use while driving or working in certain jobs, ban use in certain locations, control manufacturing and distribution (including taxation and labeling), and create standards for purity and potency (Guither, n.d.).

What are the benefits of legalization?

  • Reduce harms and promote social justice. The criminalization of drug use disproportionately harms racialized and poor people, sponsors massive levels of violence and corruption, and fails to curb youth access to drugs.

  • Create jobs and stimulate the legal economy. Legalizing and regulating drugs brings the production and sale of substances under state control. This can create jobs and economic opportunities in the formal economy instead of the illicit market. Note: Legal drug economies should not exclude people who were formerly involved in the illicit market - this further perpetuates inequalities.

  • Save money. Scarce law enforcement resources will be better used to ensure public safety while reducing corrections and court costs. State and local governments would acquire significant new sources of tax revenue from regulating drug sales.

  • Promote consumer safety. Drug product testing and safety information is a standard requirement for legal drugs. This means consumers get safer products and are better informed about the substances they use.

(Adapted from Drug Policy Alliance, n.d.)

Legalization in Canada

In Canada, the federal government has taken steps to change our drug policies to legalize and regulate cannabis. A key reason for this action was a recognition that the harms of criminalizing cannabis far outweighed the benefits (Shepherd & Caldwell, 2017).

In order to end the overdose crisis, support public health, and implement meaningful criminal justice reform, we will need safe and regulated supplies of opioids and other drugs.

References

Canadian Students for Sensible Drug Policy (CSSDP). (n.d.). Alternative approaches: Decriminalization. [Pamphlet]. Retrieved from https://cssdp.org/uploads/2016/09/Alternative-Approaches-Decriminalization-Pamphlet.pdf

Drug Policy Alliance. (n.d.). Drug Decriminalization. Retrieved from http://www.drugpolicy.org/issues/drug-decriminalization

Drug Policy Alliance. (n.d.). Marijuana Legalization and Regulation. Retrieved from http://www.drugpolicy.org/issues/marijuana-legalization-and-regulation

Guither, P. (n.d.). Constructing legitimate arguments. Retrieved from http://www.legalizationfacts.com/

Shepherd, S. & Caldwell, J. (2017). Toronto Overdose Action Plan. Retrieved from https://www.toronto.ca/wp-content/uploads/2017/08/968f-Toronto-Overdose-Action-Plan.pdf