This presentation gives a short overview of legislative reforms in Europe and Latin America that provide lessons learned in practice about less punitive approaches intended to reduce drug-related harm to the individual and society.  Evidence suggests that fears that softening drug laws and their enforcement would lead to sharp increases in drug use, have proven untrue.

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Presentation in Thai

The center of gravity for these reforms has been Europe, as the European Monitoring Centre on Drugs and Drug Addiction (EMCDDA) sums up: "The analysis of national drug strategies, legal literature, laws, and judicial practice, suggests that in several EU countries public action is based on a) a more powerful focus on treatment rather than on criminal punishment; b) on a sense of disproportion between custodial sentences (often involving a criminal record) and illicit use of drugs; and c) on the perception that cannabis is less dangerous to health compared to other drugs." Similar reforms have also taken place in Australia, Canada and within several states in the United States and increasingly in Latin America, the region potentially becoming a new center of gravity for advancing this type of reform in the near future.

Three important areas of reforms will be reviewed: 1) the decriminalization of drug use and of possession of drugs for personal consumption; 2) the proportionality of sentences; and 3) the reclassification of substances.

Summary of the conclusions

After decades of mass incarceration and ever-increasing sentencing levels (stiffened by the 1988 Convention requirements), evidence indicates that law enforcement measures are not an effective means of reducing the extent of the illicit drugs market.
The overly repressive enforcement of drug laws has caused much human suffering, disrupting family lives and subjecting those convicted to disproportionate sentences in often abominable prison conditions. It has overburdened the judicial system and prison capacity and has absorbed huge resources that could have been made available for more effective treatment, harm reduction and crime prevention programs, as well as allowing law enforcement to focus on organized crime and corruption.

Some summarizing conclusions:

1. The removal of criminal sanctions for the possession of drugs does not lead to a significant increase in drug use or drug-related harm. Criminalizing users pushes them away from health services out of fear of arrest, drives them into the shadows, and locks them up in prisons, which serve as schools for crime. This cycle derails lives even more than drug dependence itself and diminishes chances of recovery. This also applies to the way drug users are treated when committing nonviolent property crimes to sustain their habit. As Michel Kazatchkine, director of The Global Fund, said last year here in Bangkok: “We must continue to show why drug use is most effectively addressed as a public health challenge, and why punitive approaches that criminalize users, drain the resources of law enforcement agencies and overburden judicial and penal systems, are futile and counter-productive”.

2. Regarding illicit trafficking offences, the few existing examples of significantly lowered sentencing levels applied to the lower parts of the chain merit consideration and international debate about delimitations in trading levels and proportionality of sentences. There is a strong case to make for substantially revising sentencing guidelines, reducing penalties for those involved at lower levels, with no organizing responsibility, low earnings, and connected to the illicit market due to economic necessity. Existing evidence indicates that harsher penalties fail as a deterrent to the individual and have no discernible impact on the way the illicit market operates.

3. There is no evidence that more lenient approaches in cannabis policy have led to increased levels of cannabis use. The urgency to initiate experiments with models for a legally regulated cannabis market is clear when one considers that the cannabis market represents roughly half of the global illicit drugs trade, including all the criminal earnings, related violence and corruption, as well as the law enforcement resources devoted – unsuccessfully – to suppress it. Countries wishing to take this market out of criminal hands should invest the time and effort to experiment. Those preferring to maintain the status quo of strict cannabis prohibition can do so, in the same way several Islamic countries maintain strict alcohol prohibition.

4. A more rational listing of psychoactive substances according to their health risks, a better understanding of the variety of drug submarkets and the difference between recreational use and more problematic patterns of abuse should be the cornerstones for developing more adequate policy response. Two recent attempts have been undertaken by scientific panels to develop a rational scale to assess the harmfulness of drugs, looking at the toxicity (acute or chronic physical harm), the potential for dependency and the social harm at individual, family and society levels, providing food for thought.

In spite of differences between the two rating systems, one commonality is that legal drugs like alcohol and tobacco are in the upper rank of harmfulness along with heroin, cocaine/crack and methamphetamine, and that natural drugs like cannabis and khat (but also ecstasy) are placed lower on the scale of harmfulness. One of the strong arguments in favour of a more differentiated control system is that it has more potential to manage the drugs market, to steer it in the direction of less harmful drugs. Treating all drugs as the same and trying to ban them all with a zero-tolerance approach, in practice leads to an illicit market dominated by the most harmful concentrated substances.

All these ongoing changes in legal practices provide evidence that a paradigm shift in drug control is starting to take root in legislative reforms around the world, especially in Europe and Latin America. Drug consumption is seen more and more as primarily a health issue and policy objectives are shifting from the unrealistic goal of a drug-free society toward more achievable goals of harm reduction and reducing drug-related violence. A more differentiated approach that treats milder less-harmful drugs with more leniency as compared to the most problematic drugs, is one promising path to explore further. Consideration of human rights and proportionality of sentences should become essential elements in drug control. Finally, today’s trends are creating legal contradictions to the obligations set in the UN treaties. The resultant tensions and discord will only increase until the zero-tolerance and criminalizing model of the three conventions is readdressed. Political space needs to be found to openly challenge the most problematic articles and inconsistencies currently present in the treaty system. More room for manoeuver is required for these promising legislative reforms to further develop.