Legislative Innovation in Drug Policy

Latin American Initiative on Drugs and Democracy
November 2009

legislativeinnovationThis briefing summarizes good practices in legislative reforms around the world, representing steps away from a repressive zero-tolerance model towards a more evidence-based and humane drug policy.

The examples provide lessons learned in practice about less punitive approaches and their impact on levels of drug use and drugrelated harm to the individual and society. Evidence suggests that legislation lessening criminalization combined with shifting resources from law enforcement and incarceration to prevention, treatment and harm reduction is more effective in reducing drug-related problems.

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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.24 The overly repressive enforcement of the global prohibition regime 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.

As demonstrated above, 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. The 1961 Convention, the backbone of the global drug control model, already endorsed the principle that "when abusers of drugs have committed... offences, the Parties may provide... as an alternative to conviction or punishment ... that such abusers shall undergo measures of treatment, education, aftercare, rehabilitation and social reintegration..." (Art. 36.1b).

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 to share and fine-tune current thinking 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. In fact, evidence links severe sentences with increased recidivism. Enormous resources can be saved by rejecting this punitive and not infrequently politically driven approach.

There is, on the other hand, no evidence that any of the more lenient approaches in cannabis policy have led to increased levels of cannabis use. If policies had been based on evidence, rather than legally limited by the UN conventions, more radical shifts would have been the rule in cannabis control legislation. 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.

Despite the image of strict prohibition at the federal level in the United States, actually some of the good practices on decriminalization of cannabis and harm reduction have been initiated at the local and state level. While the U.S. successfully exported its punitive zero-tolerance model to the rest of the world, the federal government has had significant difficulty in maintaining its own policy domestically. Despite substantial differences across counties and cities, the "California model" of exempting medical use of cannabis from criminal penalties and allowing individuals to "possess, cultivate and transport" cannabis as long as it is used for medical purposes with a doctor's prescription has grown into something close to de facto legalization.

The paradigm shift from zero tolerance to harm reduction has resulted in a greater diversity of treatment options, less stigmatization of drug users, prevention of diseases and overdoses, and reduction of crime. But this model, originally conceived as a response to heroin injection and HIV infection, cannot simply be transposed to Latin America where injecting drug use is a major concern only in Mexico (heroin) and Brazil and Argentina
(cocaine). For Latin America a similar paradigm shift should focus on harm reduction for smoking/inhaling stimulants (crack/paco and coca base paste), as opposed to injecting opiates. The kind of experimentation done in Brazil, Canada and the U.S. merits serious consideration regarding expansion into the rest of Latin America. Harm reduction should apply to social harms as well, especially reducing levels of drug-related violence, one of the major concerns in Latin America. Wider applicability of the lessons learned with the Boston's Operation Ceasefire is well worth consideration in that regard.

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.

The change in legal practices discussed above is clear evidence that a paradigm shift in drug control is starting to take root in legislative reforms around the world. 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. Consideration of human rights and proportionality of sentences are becoming essential elements in a growing number of countries' application of drug legislation.

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 model of the three conventions is readdressed. More room for manoeuver is required for these promising legislative reforms to further develop.