Chapter
20
Public
Policies in Other Countries
As
just seen, the international conventions provide the framework for the criminal
policy approaches the signatory states may adopt. We have also seen that
interpretations vary as to the nature of the obligations they create,
specifically with regard to use, and thus possession, for personal purposes.
Some interpretations go so far as to suggest that, with regard to cannabis,
certain forms of regulation of production could be possible, without violating
the provisions of the conventions, as long as the State took the necessary steps
to penalize illegal trafficking.
The vast
majority of Canadians have heard about the "war on drugs" which the
USA is conducting and about its prohibitionist approach, but many would be
surprised to see the major variations between states, indeed between cities,
within that country. Even fewer know that Sweden enforces a prohibitionist
policy at least as strict as that of the US, but through other means. Many of us
have, in one way or another, heard about the "liberal" approach
introduced in the Netherlands in 1976. Fewer people know of the Spanish,
Italian, Luxembourg or Swiss approaches, which are even more liberal in certain
respects. More recently, Canadians learned of the decision by the UK's Minister
of the Interior to reclassify cannabis as a Class C drugs, but it is not clear
that we know precisely what that means. In view of the preconceptions that many
may have in relation to France with regard to wine, many may be surprised to
learn that its policy on cannabis appears more "conservative" than
that of neighbouring Belgium, for example.
As may
be seen, once the overall framework of the puzzle has been established by the
international community, ways of putting the pieces together vary widely between
states, and at times among the regions of a single state. That is why, in order
to learn about the experience and approaches of other countries, the Committee
commissioned a number of research reports on the situations in other countries[1]
and heard representatives of some of those countries in person.[2]
We of
course had to make some choices, limiting ourselves to the western countries of
the northern hemisphere. This is a weak point, we agree, but our resources were
limited. In addition, as we wanted to compare public policies with data on use
trends and judicial practices, we were forced to choose countries with an
information base. In our hearings of representatives of those countries, we were
mainly limited by time.
In this
chapter, we describe the situations in five European countries – France, the
Netherlands, the United Kingdom, Sweden and Switzerland – and in Australia and
the United States.
France[3]
Different
forms of logic
The new
direction taken by the Law of 1970,[4]
currently in effect, which penalizes drug use, is, in some respects, more
apparent than real. Internal public policy had begun to change in the late
nineteenth century, leading to the adoption of the great law on narcotics in
1916, providing criminal penalties for importing, trafficking, possession and
use. That legislation, which was particularly strictly enforced for the time (up
to three years in prison for narcotics offences) introduced the offence of
"use in society". Its passage had been preceded by an intensive
"public health campaign" in which narcotics were [translation] "accused
by their detractors of being the root of most of society's ills, that is to say
of comprehensively promoting depopulation, moral decadence and, even worse,
violent and criminal acts".[5]
That law
was supplemented by the Law of 1922 and the Executive Order of 1939, which
stepped up and reinforced its prescriptions. The Law of 1922 required judges to
order out of the country persons convicted of trafficking or facilitating use,
while the Executive Order increased prison terms to five years. The Law of 1922
also authorized the police to enter homes without prior legal authorization. In
Charras' view, "these various
provisions made the French legislation one of the most draconian in Europe."[6]
The
"therapeutic injunction", another factor causing tension in the 1970
legislation, is in some instances considered the very core of France's drug
legislation. Under that provision, [translation] "an obligation of care may be imposed on every drug user at three points
in the penal process:
-
upon
entry into the judicial process, the prosecution may propose an alternative to
trial;
-
during
trial, the trial judge or juvenile court judge may impose medical supervision;
-
at
sentencing, the court may impose a health measure either because the user has
previously refused it or, on the contrary, to extend it if it commenced under
the previous article.”
[7]
Characterized
as a [translation] "humanist
counterweight to a repressive policy",[8]
the therapeutic injunction has often been considered by various French observers
as an awkward compromise between police powers on the one hand and medical
powers on the other.[9]
However,
in characterizing the French system as falling between repressing the user as an
"offender" and treating him as a "patient", there is a risk
of disregarding another aspect of the French approach to drugs at least until
the 1970s: the country's foreign policy and the logic of its tax system.
[Translation] “The prohibition against drugs is a recent phenomenon. Unlike China,
which, since the eighteenth century, has sought to prohibit the use of opium,
European countries did not discuss prohibition until the twentieth century.
Furthermore, prohibition did not actually become effective until after the
1950s, and there has been no real desire to provide medical care to users until
the past 20 years. Before being prohibited or prescribed, narcotic use was
taxed through opium and cannabis tax monopolies.” [10]
Bisiou
identifies five known monopolies in the history of colonial France: India from
1864 to 1954, Indochina from 1864 until 1975, in Laos; Oceania from 1877 to 1922
and two cannabis monopolies operated concurrently with tobacco monopolies, one
in Tunisia between 1881 and 1954 and the other in Morocco between 1914 and 1952.
Another monopoly, the existence of which has not been confirmed, purportedly
existed in Lebanon.[11]
These
monopolies offered various advantages from a tax and policy standpoint. For tax
purposes, they generated significant cash flows, making it possible to finance
colonization; from a policy perspective, they were well accepted by the colonies
to the extent they pre‑existed French colonization and were already well
accepted by local populations. What is interesting is the moral character of the
"vicious substances" which justified the system for the taxation of
luxury products whose consumption authorities did not wish to encourage.
Although abolished at decolonization and characterized by certain internal
contradictions between the economic imperatives of profitability and health
objectives, this policy, starting in the 1930s, also came under extensive
criticism from the international community, whose orientations, as noted above,
were increasingly prohibitionist. The history of state drug monopolies has
nevertheless marked French history (as it did Dutch, British and Portuguese
history) and was another factor in addition to domestic policy.
Thus it
was not one single drug policy that France had in the twentieth century, but
three often competing forms of logic on the issue. But it was not until the Mission
interministérielle de lutte à la drogue et à la toxicomanie
[Interministerial Mission on Anti-Drug and Addiction Activities] (MILDT) was
reinforced in the mid-1990s that a trend emerged toward a more integrated and
coherent overall policy.
An
integrated public policy
MILDT
was established in the early 1980s during the first seven-year term of French
President François Mitterrand. Over the years, however, it either lacked
leadership or did not have the resources to achieve its ambitions. It was not
until Nicole Maestracci was appointed in 1995, under the socialist
government of Prime Minister Jospin, that MILDT began to become more
visible and take stronger public action. Its activities were directed in
particular by the strong controversies and demonstrations conducted by
stakeholders of various types (hospital physicians concerned by AIDS, members of
NGOs, drug addicts, specialists and others) who criticized the scientific bases
of the main objectives of France's drug policy. At the centre of the debate was
a need for a harm reduction approach, focusing on reducing AIDS transmission by
intravenous drug users and methadone treatment for drug addicts.[12]
In
February 1994, only one small group of 77 addicts had access to methadone
treatment, whereas there were 160,000 heroin addicts in France at the time.
In 1998, medication substitution treatments were offered in France to a group of
up to 70,000 addicts, the vast majority of whom received Subutex and
methadone replacements.[13]
This new development clearly shows that public authorities now consider harm
reduction a fundamental component of France's drug policy.[14]
On June 16,
1999, the French government introduced a three-year plan clearly reflecting this
paradigm shift since palliative and preventive measures became legitimate goals
in the French policy context. As to criminal policy, the main legislative
framework – the law of 1970–has not been amended and drug use is still
considered an offence. However, in a circular, the Minister of Justice has asked
prosecutors not to seek prison terms and to promote treatment in drug cases.
The plan
is based on European and international data and on recent reports,
interdepartmental consultations and scientific studies providing fundamental
observations on France's policy on drugs and drug abuse. The emergence of new
use profiles such as the use of numerous drugs (both legal and illegal),
increased cannabis and alcohol use among young people and greater availability
of synthetic drugs were the main concerns expressed. Information bases and
systems have also come under criticism from various quarters concerning:
·
the lack of
coordination among prevention programs and their limited accessibility (e.g.,
school drug prevention programs are offered to less than 40 per cent of
students and those concerning alcohol and tobacco to less than 20 per
cent);
·
the lack of
social and professional support;
·
the fact that
there is no ground for agreement among the various stakeholders (law
enforcement, social welfare, education and public health);
·
the excessive
importance attached to heroin addicts in the administration of specialized
treatment at a time when use among the members of this addicted group has
stabilized;
·
the difficulty
in reconciling law enforcement with the public health strategy.[15]
Criminal
law enforcement with respect to drug users has been constantly marked by the
difficulties inherent in reconciling suppressive activities with public health
imperatives. The number of users who have been questioned by authorities has
doubled over the last five years, without the judicial system having
permitted adequate and effective cooperation with physicians and social workers.[16]
Furthermore,
observing the declining number of trafficking arrests at the local level since
1996, elected representatives and the general public find this hard to
understand in view of the importance they feel should be attached to monitoring
drug supply. Lastly, the shortage of reliable indicators has prevented any
in‑depth, or even comprehensible, assessment of existing programs.
Based on
these observations, the government has developed a three-year plan defining
action priorities, objectives and measures that should be taken. Two key factors
– integration and knowledge – are the watchwords of this effort. Integration
is viewed from two standpoints: for the first time, France will have an
integrated policy on all psychoactive substances, drugs, medications, alcohol
and tobacco.
The
fact that we were talking about alcohol, tobacco and medication at the same time
as we were talking about drugs no doubt made everyone feel closer to the
situation because everyone had the experience of consuming a product, be it
legal or illegal. This was an important aspect that did not result in our saying
that all of the products should come under the same legislative regime, but
[that made it possible, regardless of the product used] to distinguish between
occasional use and problem use. [17]
The
other aspect of integration is a reinforced effort among the 19 departments
that form the MILDT under the chairmanship of the Prime Minister.
The
second watchword of this French effort is knowledge. As noted above, a certain
number of observers had noted weaknesses in the knowledge apparatus, including
reports commissioned by various authorities (discussed below). In the wake of
the impetus given by President François Mitterrand to the creation of the
European Monitoring Agency for Drugs and Drug Addictions, France, in 1993,
established the French Monitoring Centre for Drugs and Drug Addictions. The
mission of the French Centre, which is an "independent" agency, is to
"develop the observation network in order to monitor recent trends in drug
use, conduct regular epidemiological surveys on the public and implement a
comprehensive public policy evaluation framework".[18]
To do so, it organizes its work along three main lines: observation and
improvement of indicators, monitoring of recent trends and policy evaluation.
The Centre has a staff of 25 persons and a budget of 18 million French
francs (approximately Cdn $3.5 million). It is also the national focal
point in the network of the European Monitoring Centre for Drugs and Drug
Addictions.
Legislative framework
French
law related to illicit drugs is drawn from many sources including four codes:
the Code of Public Health (code de la santé publique), the Penal Code, the Code
of Penal Procedure, and the Customs Code. The main legislative framework is the
law of 31 December 1970, which amended the Code of Public Health and created a
legislative framework based on both the application of repressive measures and
health-related dispositions. The objectives of the Law of 1970 were to severely
repress trafficking, prohibit the use of narcotics, and yet propose alternatives
to the repression of use, as well as to ensure free and anonymous care for users
seeking treatment. [19]
It must be noted that most articles of the Law of 1970 (originally written into
the Public Health Code) have since been integrated into the new penal code that
came into force in 1994 except for infractions related to drug use, which are
still sanctioned through the Public Health Code. French law is also governed by
international law since France has ratified the UN conventions related to drugs.
Classes of drugs
French
law does not distinguish between illicit substances and thus, an offence such as
drug use is prosecuted and judged in the same way regardless of the illicit
substance involved. However, judicial authorities may take into consideration
the nature of the substance, the quantity and any prior criminal records in
their decision to prosecute, reduce the charges or not prosecute an offender.
Illicit substances are listed in an annex to Decree Law of 22 February 1990 and
include the following:
List
I: narcotic substances such as heroin, cocaine, cannabis, methadone, opium,
etc.;
List II:
substances such as codeine, propiram, etc.;
List
III: psychotropic substances such as amphetamines, Ecstasy, LSD, etc.; and
List IV:
synthetic drugs such as MBDB, 4-MTA, Ketamine, Nabilone, THC, etc.[20]
Offences
and penalties
Public
or private drug use in France is prohibited and criminalized by the Law of 1970
(article L3421-1 of the Code of Public Health). The penalty for illicit drug use
is up to one year in prison or a fine of 25,000 French Francs, or diversion to a
court-ordered treatment program (therapeutic injunction–in French, "injonction
thérapeutique"). This article of the Code of Public Health applies to
all users without any distinction as to the type of illicit substance used.
The Code
of Public Health also provides for the monitoring of drugs users by health
authorities (article L3411-1). Prosecutors may not undertake legal action
against an offender if that person can provide medical certification that he has
undertaken some form of therapy or has submitted himself to medical supervision
since the commission of the infraction. However, if the offender does not supply
a medical certificate to that effect, prosecutors may request that an individual
who has made use of illicit drugs follow a drug addiction treatment program or
be placed under medical monitoring (article L3423-1). The involvement in a
court-ordered treatment program suspends legal proceedings and these will not be
pursued if the individual completes the detoxification program.[21] It is not uncommon for a
repeat offender to be subjected to more than one court-ordered treatment program
as more repressive measures are rarely used for simple drug use, particularly
cannabis use.
As
mentioned above, the Ministry of Justice – in a directive dated June 1999 –
asked prosecutors to prioritize treatment over incarceration for small-time
offenders and problematic drug users. Practice has shown that therapeutic
alternatives are used mainly for simple users and that most cases of simple drug
use receive a warning with the request to contact a social or health service.
When legal proceedings are undertaken, the magistrate may also force, and not
simply order, the accused to undertake a detoxification program but in this
case, judicial authorities take charge of the case rather than health
authorities. In these cases, if the user completes the treatment, no penalties
may be imposed on the individual but the use of such measures are extremely
rare. [22]
As well, a detoxification treatment may be a condition attached to a conditional
prison sentence, parole or judicial supervision. In France, the delinquent user
is thus seen mostly as a sick person to whom therapy must be offered.
[23]
On the
drug trafficking side, the Law of 1970 has been modified on several occasions,
creating new offences such as the selling or supplying drugs for personal use
(17 January 1986) and drug-related money laundering (31 December 1987), or
enacting new procedures such as the confiscation of drug trafficking profits (14 November 1990)
to comply with Article 5 of the United Nations Convention (19 December
1988).[24]
Currently, trafficking offences include selling or supplying drugs for personal
use with a penalty of up to five years and a fine of up to 500,000 F
(articles 222-39 of the Penal Code) and a more serious offence for
transportation, possession of, supply, sale and illicit purchase of narcotics
with a penalty of up to 10 years and a fine up to 50 million F
(article 222-37). Illicit imports and exports of narcotics are also punishable
by 10 years’ imprisonment and a fine up to 50 million F but when the
offence is committed by a criminal organization, the penalty increases to 30
years of imprisonment (article 222-36). Furthermore, trafficking in narcotics
might also be punishable as a customs offence (contraband and similar offences)
with a maximum sentence of three years’ imprisonment and fines equalling
two-and-one-half times the value of the illegal merchandise. Prosecutions under
the Customs Code do not exclude penal prosecution, and customs sanctions can be
added to penal sanctions.[25]
Other
offences include the illegal production or manufacturing of narcotics punishable
by 20 years in prison and a fine of 50 million F. Here again, when a
criminal organization commits the offence, the penalty increases to 30 years’
imprisonment (article 222-35). Drug-related money laundering defined as "facilitating
by any means, false justification of the source of assets or revenues of the
author of an infraction to narcotics legislation" is punishable by 10
years imprisonment and a fine of 5 million F (article 222-38). Incitement
to drug use or to commit any offence sanctioned by articles 222-234 to
222‑239 of the Penal Code or to present these offences in a favourable
light is punishable by five years in prison and a fine of 500,000 F (article
L3421-4 of the Code of Public Health). This offence is aimed at the media and
literary or artistic works. Inciting a minor to use narcotics is punishable by
five years’ imprisonment and a fine of 700,000 F and in the case of a minor
under the age of 15 years or if the offence is committed in or around an
educational establishment, the penalty increases to 7 years in prison and a fine
of 1 million F (article 227-18). Finally, heading or organizing a group
engaged in the production, manufacturing, import and export, transportation,
possession, supply, sale, purchase or use of narcotics can lead to a life
sentence and a fine of 50 million F (article 222-34).
Key
reports
The
Pelletier Report
The
first assessment of the Law of 1970 and of the French policies with respect to
drugs and drug addiction was completed in 1978 by a commission presided by
Monique Pelletier, who studied the issue at the request of French President
Giscard d’Estaing.[26]
The
Pelletier report stated that the difficulties encountered in the implementation
of the Law of 1970 were the result of inequalities in handling drug users due in
part to the fact that the law did not include an intermediate category between a
drug user and a trafficker. The report also attributed the implementation
problems to the difficulties encountered in getting legal and health authorities
to work together.[27]
Doctors were particularly sceptical about the principle of court-ordered
treatment and of forcing an individual into treatment. The Pelletier Commission
noted as well that legal sanctions were used more often than treatment
alternatives. Members of the Pelletier Commission believed that the Law of 1970
deserved a second chance. They suggested that it could benefit from the
institution of clear implementation guidelines (circular letters) and the
establishment of structural and financial resources to ensure the successful
implementation of therapeutic alternatives, both at the judicial and medical
level. The report proposed, among other suggestions, that drug users should be
differentiated according to the type of illicit substance they use.[28]
Officially
today, the law still does not distinguish between illicit substances but in
practice many circular letters over the past 20 years have invited prosecutors
and judges to differentiate between cannabis use and use of other drugs such as
heroin and cocaine. For example, a circular letter (7 May 1978) suggested that
cannabis users should not be considered "true" drug addicts, that
detoxification treatment may not be the appropriate measure for this type of
user, and that they should receive a simple warning. It also invited judges to
encourage drug users to contact a drug addiction centre and to only use
court-ordered treatment for repeat offenders. This circular letter has been
perceived by many as a decriminalization of cannabis use. However, it must be
noted that circular letters express the intentions of the Ministry of Justice
but can be enforced diversely by prosecutors.[29]
The 1978
circular letter was a point of reference until 12 May 1987 at which time a
Justice-Health circular repealed preceding letters and introduced a new
distinction for drug use based on the frequency of use.
[Translation] For all cases involving drug use, a report had to be sent to the
prosecution and dealt with by a specialized judge. "Occasional" users,
who were well integrated into society were to be given a simple warning. The
letter recommended court-ordered treatment or prosecution for
"habitual" users. Illegal foreign users were to be immediately tried
and banned from the French territory. Lastly, user-dealers or delinquent users
were to be prosecuted as a head dealer or for harming others or goods. This
letter also marked a will to revive court-ordered treatment and clarified how it
should be enforced. [30]
This
circular letter was a turning point towards more repressive measures for
habitual users and user-dealers[31]
and the basis of the orientation of legal policy between 1990 and 1995, which
focused on reviving court-ordered treatment and distinguishing between
occasional users, habitual users, and user-dealers.[32]
The
Trautmann Report
The
second report was commissioned in 1989 from Catherine Trautmann who, at the
time, was the president of the Interministerial Mission for the Fight against
Drugs and Drug Addiction. The Trautmann report, submitted in 1990, included a
review of available data on drug use and drug addiction, the main difficulties
in the fight against drugs, and the drug policy in France from 1978 to 1988.[33]
The
report did not recommend any changes to the Law of 1970. Rather, it highlighted
the need for more effective actions against drug trafficking, with a particular
focus on developing better cooperation between the three main national services
involved in the fight against drug trafficking: the police, the gendarmerie, and
customs – each of which have a different jurisdiction (urban areas for the
police, rural areas for the gendarmerie, borders for customs). It suggested that
the policing of French outer borders should be reinforced. The report further
proposed that more should be done to deal with the demand side of the drug issue
by developing strategies aimed at preventing drug use and drug addiction,
particularly among young people. Suggestions related to the care of drug addicts
and their integration and reintegration into the community revolved around three
main axes: improving health and social services; taking into consideration
problems associated with AIDS; and establishing a solid financial management
system to support specialized units providing services to drug addicts.
Finally,
with respect to the issue of decriminalization or legalization of drugs, in
particular cannabis, the Trautmann report was clearly against such propositions.
The report stated that the issue is one of preventing drug use and caring for
drug addicts, and that decriminalization of cannabis would trivialize drug use
and promote earlier and more frequent use of hard drugs.[34]
The
Henrion Report
The
Henrion Commission produced in 1995 a third report on the drug situation in
France.[35]
It is interesting to note that the Commission comes to similar conclusions as
the two previous reports with respect to the lack of coordination and
cooperation between judicial and health authorities and the difficulties in
implementing a policy based on both repressive and public health measures. The
Commission made note of the limited use of court-ordered treatment and the
increasing number of arrests for simple drug use. It recommended first and
foremost the development of an evaluation policy to assess the drug situation in
France and suggested that French drug policy should give priority to preventing
drug use. As well, the report criticized the lack of consistency in law
enforcement and inequalities in handling drug users throughout France and
recommended that the existing agencies and structures involved in the repression
of drug trafficking be given the necessary financial and human resources to
successfully achieve their mandate.
However,
the Henrion Commission distinguished itself in proposing a reform of the Law of
1970. Members of the Commission debated the issue of decriminalizing cannabis,
expressing diverging opinions on the issue. A minority of members (8 out of 17)
opposed the idea of decriminalizing the use of cannabis mainly because they
thought it would be difficult to maintain a moral interdiction without a legal
prohibition. However, a small majority of members (9 out of 17) were in favour
of decriminalizing the use of cannabis and possession of small quantities of
such substance. They suggested proceeding gradually without effecting any
changes to the existing measures sanctioning the supply of cannabis in the hope
of better controlling and assessing the consequences of decriminalizing drug
use. They also recommended that decriminalization should be accompanied by the
enactment of regulations limiting use of cannabis to certain locations and
forbidding its use by young people under the age of 16. Regulations would also
repress being intoxicated in public places, create an offence of driving under
the influence of cannabis, and would prohibit the use of cannabis by certain
professionals for safety reasons (i.e., air traffic controllers; pilots, drivers
of public transit, etc.). All these measures had to be accompanied by a
prevention campaign focusing on the potential negative consequences of using
cannabis, an ongoing evaluation not only of cannabis use but of opiates, cocaine
and crack as well, and ongoing neurobiological research on the effects of
cannabis use. Finally, the offence of incitement to drug use was to be
maintained and applied.[36]
The
Commission suggested that, if such a reform was applied and there was no
deterioration of the situation within two years, the government should then
consider a regulation of the commerce of cannabis under the strict control of
the state. It should be noted, however, that some members of the Commission
thought that such a regulation should be implemented concurrently with the
decriminalization of cannabis and that there should not be any trial period.[37]
These recommendations have yet to be implemented.
The
Henrion Commission also recommended the adoption of a harm reduction policy that
would not limit itself to minimizing the health risks related to drug use, but
would be grounded in a public health perspective that would rigorously crack
down on specific problem behaviours such as discarding needles in a public
place.[38]
Expert reports
In
Chapters 5, 6 and 7, we have more fully discussed the scientific data from
three recent expert reports, the Roques report on the dangerousness of drugs
(1995),[39]
the Parquet and Reynaud report on addictive practices (1997)[40]
and the INSERM expert report on cannabis (2001).[41]
Those three reports, which supplement each other and are largely consistent in
their main conclusions, constitute one of the most rigorous international
scientific information bases, and certainly the least ideological, that we
consulted. As they were not associated with a commission established to study
the public policy aspects of the issue, the three commissions were thus likely
in a slightly better position to escape the potential contamination of
teleological interpretations of research data.
Statistics
on use and offences
Use
The
following is from a 1999 document entitled Drugs
and Drug Addictions: Indicators and Trends prepared by the French Monitoring
Centre for Drugs and Drug Addictions, which synthesized available data and
analyzed drugs and drug addiction in France.[42]
The
current trends observed in that report were as follows:
·
a strong
decrease in overdose-related deaths (554 in 1994, 143 in 1998) and AIDS deaths
associated with injection drug use (1,037 in 1994, 267 in 1997);
·
an important
drop in heroin use since 1996 possibly attributable to an increase in use of
substitution treatments;
·
normalization
of the use of cannabis as its use is becoming more and more commonplace
particularly amongst young people;
·
cultivating
cannabis is a developing phenomenon;
·
synthetic drugs
have become much more widely available although these drugs still represent a
very small percentage of drug consumption;
·
cocaine use is
increasing; and
·
multiple drug
use including licit substances such as alcohol, is an emerging phenomenon
especially among youth–54% of young people in care in rehabilitation units are
users of at least two products.
Surveys
conducted in 1995 amongst a representative cross-section of French adults
revealed that almost 25% of 18- to 44-year-olds declared having experimented
with cannabis and 7.7% stated that they used it on an occasional or regular
basis. Surveys conducted amongst conscripts in army selection centres in 1996
also showed that a large percentage (40%) of young men 18-23 years old had
experimented with cannabis and 14.5% had used it during the past month.[43]
Whereas adolescents are concerned, it is estimated that in the second half of
the 1990s more than one-third of all 15- to 19-year-olds had experimented with
drugs, mostly cannabis. Surveys also showed an important increase in the
frequency of use of cannabis as "the share of young people who had used
cannabis at least ten times during the year increased by over one-half from 1993
to 1997."[44]
It was further found that boys are more likely than girls to use illicit
substances and at much higher risk of repeated use. A 1998 survey indicated that
33% of the boys declared that they had experimented with cannabis, compared to
23% of the girls.[45]
The 2002 report of the French Monitoring Centre for Drugs and Drug Addictions
also notes an increase in the number of new health and social cases involving
cannabis use: approximately 15 per cent of cases involved cannabis use.
Those persons were generally younger than those involved in opiate use, more of
them were entering the system for the first time and more had been referred by
the courts.[46]
During
the second half of the 1990s, the number of "problem" opiate users
(drug use that may result in treatment in the health and social system and/or
contact with law enforcement agencies) was estimated between 142,000 and
176,000.[47]
Offences
The
report from the French Monitoring Centre indicates that the number of arrests
for drug-related offences increased from 45,206 to 85,507 over the period
1993‑1998. The most important increase was in the number of individuals
arrested for cannabis use (30,344 in 1993 compared to 72,281 in 1998) whereas
the number of arrests for heroin use had actually decreased (14,959 in 1993,
7,469 in 1998, following a peak at 17,356 in 1995). Cannabis, in fact, accounted
for 85% of drug-related arrests in France in 1998 compared to 63% in 1993.
However, it must be noted that a little less than half of the individuals
arrested for using drugs (45%) were retained for questioning and the vast
majority of persons (97.2%) held for questioning were freed in 1997.[48]
Studies
in France have emphasized that the statistics on arrests of drug users should be
used with caution as it is difficult to ascertain how much of noted changes
reflect variations in the population of drug users and how much of these changes
are linked to modifications of police and gendarmerie services. For example,
data on arrests for use between 1993 and 1998 indicated a significant
growth of 30% in use-related arrests in 1997 and 9% in 1998.[49]
Many factors may explain such an increase including changes in the behaviour of
police and gendarmerie services, the reorganization of police departments, and
the normalization of cannabis use. One explanation suggests that a circular
letter on court-ordered treatment issued in 1995 by the Ministry of Justice has
led public prosecutors to instruct the police and gendarmerie to
"systematically report users." [50]
It may be assumed that such instructions may have led to the notable increase in
drug use-related arrests recorded in 1997.
With
respect to trafficking, the number of arrests decreased between 1996 and 1998
from 8,412 to 5,541. Slightly more than half of dealers (52%) arrested in 1998
were trafficking cannabis, 24% were involved in dealing heroin, and 17%
trafficked cocaine and crack. The main development was observed in the number of
arrests of heroin traffickers which decreased from 3,395 in 1993 to 1,356 in
1998. Arrests for trafficking cocaine increased from 383 to 972 during the same
period whereas arrest related to cannabis trafficking increased slightly from
2,456 to 2,920. [51]
The
total number of convictions for drug use as the main offence went from 7,434 in
1992 to 6,530 in 1997, with a low of 4,670 convictions in 1995. In 1997, 3,368
convictions were for use only. Of these, 14% were sentenced to imprisonment with
an average length of 2.4 months, 35% received a deferred sentence (often
associated with probation and court-ordered treatment), 33% were fined, 7% were
given an alternative sentence, and 6% were sentenced to an educational measure.
The number of convictions for use and transporting increased from 761 in 1991
(6.6% of convictions) to 3,478 in 1997 (22.2%). Convictions for use and
trafficking also increased from 475 in 1991 to 1,501 in 1997 (4.1% compared to
9.6% of convictions related to drug offences). In 21% of the convictions for use
and other drug-related offences, a prison sentence was given out. In 37% of
cases involving drug use and trafficking and 21% of drug use and transporting,
individuals received a mixed sentence (prison time and deferred sentence). The
average length of imprisonment was 16.8 months in 1997.[52]
In 1998,
the number of cannabis seizures was 40,115, up from 27,320 seizures in 1996.
However, the quantities seized were smaller in 1998 than in 1996 (55,698 kg
compared to 66,861 kg).
Costs
In
1995, public funds devoted to implementing the French drug policy was 4.7 billion
Francs. Out of the total expenses (specific budget and interdepartmental
credits), approximately 1536.56 million Francs were spent on Justice,
1260.54 million F on police services, 469.55 million F on the
gendarmerie, and 450.25 million F on customs expenses. The amount spent on
enforcement was considerably higher than that spent on health (656.3 million
F) and social affairs (28.58 million F).
More
recent figures on interministerial credits indicated that for 1998, the
expenditures of health and social affairs were set at 47.9 million F ,
those of Justice at 18.9 million F, the Ministry of the Interior (police)
at 18.5 million F and Defence (gendarmerie) at 10.7 million F.
The
Netherlands[53]
Much has
been said about the Dutch approach to the drug issue. The following is one
example:
In
Holland, studies conducted in the early 1990s show the negative impact of
tolerance of illegal drugs:
·
the
number of "coffe shops" that have derived income from the sale of
hashish since decriminalization in 1990 rose from 20 to 400 in Amsterdam in 1991
to more than 2,000 throughout all of Holland;
·
from
1984 to 1988, the number of hashish smokers 15 years of age or more doubled
in Holland; from 1988 to 1992, the number of smokers 14 to 17 years of age
doubled again, and the number of users 12 and 13 years old tripled;
·
the
rate of violent crimes committed in Holland is the highest in Europe and is
still rising. [54]
In
the Netherlands (you have to be careful because there are enormous social and
cultural differences preventing any general comparison between Canada and that
country), the harm-reduction-based drug policy draws a very clear distinction
between cannabis and so‑called hard drugs. Since the policy was adopted,
cannabis has appeared to be less dangerous and its social approval has
increased, particularly among young people whose cannabis use has quadrupled.
Cannabis use in that country, as in most continental European countries, based
on the statistics cited, remains below that of Canada. But that simply means
that we must be even more vigilant. The tendency to have a problem situation and
the probability that it will occur appear higher in the country. [55]
Various
witnesses cited the article by Larry Collins published in the prestigious Foreign
Affairs. However, that article is full of errors of fact.
In view
of the climate surrounding the drug policy debate, it is difficult to describe
the Dutch approach without giving the impression that one is taking a position.
First, we should recall a number of observations we made in Chapter 6, to
which we will return in the comparative analysis in the next chapter. First of
all, international comparison of use trends must be carefully drawn because of
the different methodologies used in the surveys. Second, international
comparisons tend to show that "the relationship between the figures
measuring cannabis use levels and the legislative model in effect in a country
is not obvious or systematic."[56]
As
was the case for France, we begin with a brief overview of drug legislation in
the Netherlands, then describe the broad outlines of the current Dutch policy
and the tools used to implement it. We then present current legislation in a
more detailed manner and the reports on which it is based, then, lastly, provide
some figures on drug use and repression.
Dutch
pragmatism?
Like the
other colonial powers, the Netherlands maintained opium production authorities
and trading posts in their colonies, a system that generated significant tax
revenues: between 1816 and 1915, net profits from the sale of opium represented
approximately 10 per cent of total revenue from the colonies for the Dutch
treasury. The country was also the largest producer of cocaine for medical
purposes. It was not until the end of World War II and the independence of
Indonesia that the Netherlands terminated the opium monopoly.
Vested
economic interests in the production and trade of drugs may explain the Dutch
reluctance to endorse strong international drug control. Clearly, the
Netherlands attempted to protect these interests at the conferences and did so
successfully, at least temporarily. (…) Incidentally, the Netherlands also
objected to the inclusion of marihuana in the convention. [57]
During
the 1920s and 1930s, the country came under criticism from the League of Nations
and the United States in particular over its extensive drug trade. The
Netherlands was one of the main heroin producers and the principal producer of
cocaine. However, the Dutch negotiators at the international conferences on the
various conventions, as well as a portion of the Dutch population itself, did
not believe in a system based on prohibition and, already at the turn of the
century, felt that a system of government control would be more effective.
It was
this attitude that led a number of analysts to represent the Dutch approach to
drugs as pragmatic.
Dutch
society is a pragmatic society. It is a nation of traders, going back to the
XVIIth century. Traders are more pragmatic than other people. The pragmatism
finds its roots in Dutch history, which is characterized by its fight against
the sea, the natural enemy of the Netherlands since the Middle Ages. The
Netherlands is roughly the size of Vancouver Island, and today one-half of the
country is at sea level.
A
system of dykes was built to protect the country. Centuries ago, everyone in
Dutch society, from the aristocracy to the farmers worked together to prevent
seawater from flowing into the country. The pragmatic attitude comes from that.
It is impossible to completely eliminate the problem of the water. It is better
to control it with canals. [58]
However,
other factors beyond pragmatism are at work. One Dutch government publication
suggests that the nature of Dutch society is the reason for its approach:
Some
knowledge of the characteristics of Dutch society is required to appreciate the
Dutch approach to the drug problem. The Netherlands is one of the most densely
populated urbanized countries in the world. Its population of 15.5 million
inhabitants occupies an area of 41,526 square kilometers. The Netherlands
has always been a transit country: Rotterdam is the largest seaport in the world
and the country has a highly developed transportation sector. The Dutch firmly
believe in individual freedom and expect the state to be reserved in its
approach to religious and moral questions. Free and open debate on such
questions is one of the characteristics of Dutch society. Considerable value is
attached to the well-being of society as a whole, as may be seen from the
extensive social security system and universal access to health care and
education. [59]
It
follows that, by tradition, the Dutch are not accustomed to using criminal law
to address social problems.[60]
Furthermore, the Netherlands is a country of consensus, where there is a long
tradition of cooperation between local, regional and national authorities, and
between the various sectors of the government.
Whatever
the reasons, the Dutch experience has received considerable media coverage,
surprisingly, much more than the Spanish approach, which, in many respects, is
even more liberal. Being called upon to defend it in Europe and in other
international forums, the Dutch have often presented it as a position of
compromise between that of the "hawks" of the war on drugs and that of
the "doves" of legalisation.[61]
It is unlikely that the approach is the result of specific cultural factors and
that the Dutch experience cannot apply to other countries. On the contrary, it
appears to be the rational solution to a problem by politicians, and that cannot
be claimed to be an exclusively Dutch characteristic.
Essential
expert reports
Unlike
most other countries where commissions of inquiry produced reports in the 1970s,
the Netherlands is the only country that has implemented the recommendations of
its commission.
The Hulsman
Commission(1968-1971)
In 1968,
the National Federation of Mental Health Organizations[62]
established a commission with a broad mandate to "clarify factors
associated with the use of drugs" and "to suggest proposals for a
rational policy."[63]
Chaired by criminal law professor Louk Hulsman, the Commission had a
diverse membership including law enforcement officials, alcohol treatment
experts, psychiatrists, a drug use researcher and a sociologist.
The
commission’s final report, presented in 1971, provided an analysis of drug use
and the social mechanisms behind drug problems. New approaches were suggested,
including:
·
The use of
cannabis and the possession of small quantities should be taken out of the
criminal law immediately. For the time being, production and distribution should
remain within criminal law, but as misdemeanours.
·
The use and
possession of other drugs should temporarily remain in the realm of criminal
law, as misdemeanours, but in the long run all should be decriminalized.
·
People who have
problems with their drug use should have adequate treatment facilities at their
disposal.
In
recommending the gradual decriminalization of all drugs, the report noted that
illicit drugs can be used in a controlled and limited way and that marginalizing
drug-using subcultures has significant negative repercussions. Specifically,
becoming a member of the "drug scene" may familiarize a cannabis user
with other drugs and patterns of use. Although the commission found no evidence
of a "stepping stone" sequence of drug use – what in other contexts
has been referred to as "gateways" – it accepted the notion that one
kind of drug user (e.g., heroin user) will contaminate another kind of drug user
(e.g., cannabis user) when the two kinds of drug use are forced into one
marginalized subculture.
With
respect to the issue of law enforcement, the commission concluded that once
started, drug policing would have to be constantly enlarged to keep pace with
the never-ending escalation of drug use. It referred to the criminal law option
of opposing drug use as inadequate and "extremely dangerous":
Time
after time it will show that the means will fall short, upon which those who
favour punishment will plead for increase of law enforcement, until it will be
amplified a hundred fold from the present situation…This will boost
polarization between the different parts of our society and can result in
increased violence. [64]
Although
it had no immediate impact, the Hulsman report nevertheless influenced the
government report of the Baan Commission.
The Baan Commission
(1968-1972)[65]
A State
Commission was also established in 1968 by the Under Secretary of Health. This
commission contained some members of the Hulsman Commission, as well as
officials from the Ministry of Justice, the Amsterdam Chief of Police, and
additional psychiatrists and sociologists. In 1970, Pieter Baan, the Chief
Inspector of Mental Health, assumed the chairmanship of the commission and a
final report was presented in 1972.
The
report suggested dividing drugs into those with acceptable and those with
unacceptable risks. Further research would be needed to create a greater
consensus among the experts as to how some individual drugs should be
classified, but the report described cannabis products as relatively benign with
limited health risks. However, even for those drugs that pose unacceptable
risks, the report concluded that use of the criminal law is not an adequate
approach. The Commission suggested the long-term goal of complete
decriminalization once a good treatment system had been created. In the interim,
the justice system should just be used as a tool for manoeuvring heavy users
into treatment.
Other
notable findings include:
·
The special
characteristics of youth culture are important determinants of drug use and if
so‑called deviant behaviour is stigmatized by punitive measures, the
probability of intensification of this behaviour is a serious danger. This will
initiate a spiral that will make the return of the individual to a socially
accepted lifestyle increasingly difficult.
·
Much drug use
is short-lasting experimentation by young people.
·
Cannabis use
does not lead to other drug use, but as noted in the Hulsman report, the
criminalization of cannabis promotes contact between cannabis users and the
users of "harder" drugs.
·
Drug users are
better served by drug information and prevention efforts than by prosecution.
·
The sometimes
unusual behaviour of cannabis-consuming youth is more a result of specific
subculture norms and ideologies rather than pharmacology.
·
Cannabis use
when driving or operating machines in factories is not responsible conduct, and
the consumption of cannabis should be restricted to times of leisure in order to
limit the risks to the individual or society .
The Baan
report formed the basis of what was to become the system of tolerance toward
cannabis in the Netherlands as part of a concern for public health and the
separation of drug markets.
The Engelsman Report
(1985)[66]
Taking
notice of the limits of a public health policy essentially based on young people
(the principal cannabis users) and of the evolution of heroin use, as well as
the declining condition of users, the Engelsman report proposed to extend the
Baan Commission's tolerance approach to other drugs. It also went further than
the Baan report on the need to rely on the experience and word of users in
determining policies, proposing in particular to exclude non-users from the
circle of experts. In Engelsman's view, drugs and drug use were no longer the
only factors involved in explaining the problems of drugs - hard drugs in this
case - and that new factors included the perverse effects of repressive action
(care and police) on users. Public policy proposals should therefore not be
based on the panic reactions of society and should aim to integrate users and
"normalize" their drug use. The state should therefore arbitrate
between users and non-users with a view to protecting users. The Engelsman
report, which was considered too radical in certain circles, remained a dead
letter.
"Continuity and
Change" Report – 1995[67]
In 1995,
the Dutch government published a report entitled Drugs Policy in the Netherlands: Continuity and Change. This policy
document was sponsored by: the Minister of Justice; the Minister of Health,
Welfare and Sport; and the Secretary of State for the Interior. To some extent,
this report was the Dutch response to international pressure (from both
neighbouring countries and the USA) as well as an opportunity to make its
cannabis policy clearer and to some extent stricter.
The
report begins by noting that the Netherlands has always attempted a pragmatic
approach to drug use, recalling that prohibitionist policies throughout the
world have proven to have a limited effect. Thus, the modest objective in
Holland is to limit the health and social problems that result from the use of
dangerous drugs. This harm reduction approach has led the Dutch government to
distinguish between "hard drugs," i.e., those that pose an
unacceptable risk to health, and "soft drugs" such as cannabis
products, which although still considered "risky" do not present
similar concerns. The underlying assumption made in the Netherlands with respect
to cannabis is that people are more likely to make a transition from soft to
hard drugs as a result of social factors, not physiological ones. Separating the
markets by allowing people to purchase soft drugs in a setting where they are
not exposed to the criminal subculture surrounding hard drugs is intended to
create a social barrier that prevents people experimenting with more dangerous
drugs.
The
report goes on to review the effects of the Dutch drug policy, the treatment of
addiction in the Netherlands, and enforcement under the Opium Act. Key conclusions and findings include:
·
Decriminalization
of the possession of soft drugs for personal use and the toleration of sales in
controlled circumstances has not resulted in a worryingly high level of
consumption among young people. The extent and nature of the use of soft drugs
does not differ from the pattern in other Western countries. As for hard drugs,
the report states that the number of addicts in the Netherlands is low compared
with the rest of Europe and considerably lower than that in France, the United
Kingdom, Italy, Spain and Switzerland.
·
The number of
heroin users under the age of 21 has continued to fall in the Netherlands.
·
The use of
cheaper forms of cocaine (i.e., crack) has not made significant inroads in
Holland as had been feared as a result of developments in the United States.
·
The tone of
public debate in Holland is different than in other countries because drug use
is no longer seen as an acute health threat but rather as a source of nuisance.
Policies focusing on addiction and care have resulted in less HIV infection; in
fact, levels continue to fall. As well, the mortality rate among addicts is low
and is not increasing, as it is in other European countries.
·
With respect to
the legalization debate, the report concludes that, with a state monopoly or
licensing system, the disadvantages would outweigh the practical advantages.
Although the role of criminal organizations would be reduced, such a system
would impose a considerable burden in implementation and monitoring, and would
probably attract even more "drug tourists" and the nuisance they
sometimes cause. Furthermore, the report suggests that this is not something
that could be done by the Netherlands in isolation. The international
conventions preclude outright legalization and would have to be renegotiated or
denounced. As well, even if just soft drugs were legal in Holland but not in the
rest of Europe, the Dutch criminal organizations that export drugs would
continue to exist and would still require significant law enforcement activity.
·
Foreign
concerns about the Dutch coffee shop policy have centred not on the use of
cannabis in the establishments, but on drug tourists who take cannabis back to
their home countries, something that has been particularly easy since the
abolition of border controls under the Schengen Agreement. The report confirms
the government’s plan to reduce the purchase limit to 5 grams from 30 grams to
see what impact this will have on illegal exports.[68]
·
Given the lack
of sufficient scientific data, the report endorses the 1995 recommendation of
the Dutch Health Council that a medical trial into the effectiveness of
prescribing heroin to addicts be undertaken.[69]
The
report also notes three negative implications that need to be addressed: the
nuisance caused by hard and soft drug users; the increasing presence of
organized crime in the Netherlands; and the effect of Dutch policy on other
countries.
·
The criminal
and general nuisance caused by Dutch and foreign hard drug users may have the
effect of undermining public support for the policy of social integration of
addicts. A small proportion of hard drug users commit a large number of property
offences in order to buy their drugs. Contrary to expectations, the fact that
methadone is easily obtained has scarcely improved the situation. Drug-related
crime and anti-social behaviour, such as discarding used needles in public
places, has affected the tolerance levels of residents in some socially
disadvantaged neighbourhoods in the larger Dutch cities. Nuisance caused by the
presence of coffee shops selling soft drugs has also been problematic in some
municipalities.[70]
·
Another
complication has been the rise of criminal organizations involved in the supply
and sale of drugs in Holland which has necessitated increased criminal law
measures. The prosecution of drug traffickers will continue to be a top priority
for the Dutch police and judicial authorities.
·
Although the
"ideological nature" of some foreign criticism suggests a lack of
understanding of Dutch policy and is often based on purported health risks that
are not supported in the scientific literature, there are problems in the
Netherlands that have international implications. The Dutch, for example, are
responsible for more than their proportional share of trafficking in soft drugs,
and drug tourists routinely purchase soft drugs in Holland with the intent of
transporting them back to their home country. The report suggests that combating
these problems will involve continuing and reinforcing current law enforcement
activities that prioritize trafficking. As noted, the issue of soft drug
tourists taking home their coffee shop purchases is to be addressed by
decreasing the amount permitted for sale.
Three
major principles have characterized the Dutch approach since 1976:
· Harm reduction: attenuation of risks and dangers related to drug use rather than prohibition of all drugs, the key elements of which are:
·
prevention or
alleviation of social and individual risks caused by drug use;
·
a rational
relationship between those risks and policy measures;
·
a
differentiation of policy measures based on the risks associated with drugs;
·
repressive
measures against drug trafficking are a priority; and
·
the inadequacy
of criminal law with respect to other aspects apart from drug trafficking.[71]
· Policy of normalization: social control is achieved through depolarization and the integration of deviant behaviour rather than isolation and removal, as is typical of the deterrence model. This paradigm also suggests that drug problems should be seen as normal social problems rather than unusual concerns requiring extraordinary treatment.
· Market separation: by classifying drugs according to the risks posed and then pursuing policies that serve to isolate each market, it is felt that users of soft drugs are less likely to come into contact with users of hard drugs. Thus, the theory goes, users of soft drugs are less likely to try hard drugs.
Legislation
In 1919,
the Netherlands passed its first law on opium under the influence of the
international conventions, including the Hague Convention in 1912. That
legislation prohibited the manufacture, sale, processing, transportation,
supply, import, export and possession of cocaine, opium and its derivatives. The
law was amended in 1928 to include cocaine derivatives and cannabis in the list
of controlled substances. However, only the import, expert and transfer of those
substances were prohibited. The offences of possession and producing cannabis
and cannabis derivatives were not punishable until 1953.
The Opium
Act–also referred to as the Narcotics
Act–is the Netherlands' main drug legislation. The Act
criminalizes possession, cultivation, trafficking and importing or exporting.
The 1976 Amendments establishes two classes of drugs: Schedule I drugs
are deemed to present an unacceptable risk to Dutch society and include heroin,
cocaine, amphetamines and LSD; Schedule II drugs include "traditional
hemp products" such as marijuana and hashish.
Offences
The Act
has three characteristic features:
· it criminalizes possession, trafficking, cultivation, transportation, manufacturing, import and export of drugs, including cannabis and cannabis derivatives;
· it draws a clear distinction between suppliers and users; the act punishes possession for the purpose of use, not use as such;
· differentiated penalties based on the substances involved.
The
possession of all scheduled drugs is an offence, but possession of a small
quantity of "soft" drugs for personal use is a minor offence.
Generally, it is tolerated by law enforcement, particularly within the regulated
coffee shop system, discussed in the following section. Importing and exporting
are the most serious offences under the Act.
Penalties
The
maximum penalty for importing or exporting hard drugs is 12 years'
imprisonment and a fine of 100,000 Dutch florins.[72]
Anyone found in possession of a quantity of hard drugs for personal use is
liable to a penalty of one year's imprisonment and a fine of 10,000 florins. The
maximum penalty for importing or exporting soft drugs is four years'
imprisonment and a fine of 100,000 florins. Repeat offenders are liable to a
maximum penalty of 16 years' imprisonment and a fine of 100,000 florins.
Offenders may also be deprived of any money or property gained from their
offence. The Netherlands also has guidelines for sanctions that the Public
Prosecutor is directed to seek, based on: the type of drug involved, the amount
of the drug and the specific offence. The following tables set out the current
guidelines (1996).[73]
SCHEDULE I SUBSTANCES
("HARD DRUGS") |
||
Offence |
Amount |
Sanction to be Sought[74] |
Possession |
< 0.5 g or < 1 user unit |
Police Dismissal |
0.5-5 g or 1-10 user units |
1 week - 2 months |
|
Possession with Dealer Indication (i.e.,
intent to sell) |
< 15 g or < 30 user units |
Up to 6 months |
15-300 g or 30-600 user units |
6-18 months |
|
> 300 g or > 600 user units |
18 months - 4 years |
|
Street or Home Dealing |
< 1 g |
Up to 6 months |
1-3 g |
6-18 months |
|
> 3 g |
18 months - 4 years |
|
Middle-level Dealing |
< 1 kg |
1-2 years |
> 1 kg |
2+ years |
|
Wholesale Trade |
> 5 kg |
6-8 years |
Import and Export |
< 1 kg |
Up to 3 years |
> 1 kg |
3-12 years |
SCHEDULE II ("SOFT
DRUGS") |
||
Offence |
Amount |
Sanction to be Sought ([75]) |
Possession, Preparing, Processing, Sale,
Delivery, Supply, Transporting or Manufacturing |
Up to 5 g |
Police Dismissal |
5-30 g |
Fine of Dfl. 50-150 |
|
30 g-1 kg |
Fine of Dfl. 5-10 per g |
|
1-5 kg[76] |
Fine of Dfl. 5,000-10,000 and 2 weeks per kg |
|
5-25 kg |
Max. fine of Dfl. 25,000 and 3‑6 months |
|
25-100 kg |
Max. fine of Dfl. 25,000 and 6‑12 months |
|
> 100 kg |
Max. fine of Dfl. 25,000 and 1‑2 years |
|
Cultivation |
Up to 5 plants |
Police Dismissal |
5-10 plants |
Dfl. 50 par plant (repeat offenders: Dfl. 75
per plant) |
|
10-100 plants |
Dfl. 25 per plant and/or ½ day per plant |
|
100-1 000 plants |
Max. fine of Dfl. 25,000 and 2‑6 months |
|
>1 000 plants |
Max. fine of Dfl. 25,000 and 6 months –
2 years |
|
Import and Export |
The Act
does not distinguish between quantities, but in practice the
prosecutor's sentence recommendation will correspond to the quantity
divisions for possession. |
Sanctions for possession may be doubled to a
maximum of 4 years and a maximum fine of Dfl. 100,000 |
The
coffee shop system
Contrary
to several stereotypes, cannabis possession is not decriminalized; strictly
speaking, it is still a criminal offence. However, based on the principle of
expediency, which is part of the criminal law tradition in the Netherlands, the
possession of small amounts of cannabis for personal use has been
decriminalized. The sale of cannabis is technically an offence under the Opium
Act, but prosecutorial guidelines provide that proceedings will only be
instituted in certain situations.
Without
legalizing the sale of cannabis and cannabis derivatives, the municipalities may
permit the establishment of coffee shops which are authorized to sell cannabis
under certain conditions. An operator or owner of a coffee shop (which is not
permitted to sell alcohol) will avoid prosecution if he or she meets the
following criteria:
·
no more than 5 grams
per person may be sold in any one transaction;
·
no hard drugs
may be sold;
·
drugs may not
be advertised;
·
the coffee shop
must not cause any nuisance;
·
no drugs may be
sold to minor (under 18), nor may minors enter the premises;
·
the
municipality has not ordered the establishment closed.
The
idea behind the Netherlands' policy towards the coffee
shops is that of harm
limitation. This is based on the argument that if we do not prosecute
small-scale cannabis dealing and use under certain conditions, the users – who
are mainly young people experimenting with the drug – are not criminalized
(they do not get a criminal record) and they are not forced to move in criminal
circles, where the risk that they will be pressed to try more dangerous drugs
such as heroin is much greater. [77]
It is
common for municipalities to have a coffee shop policy to prevent or combat the
public nuisance sometimes associated with these establishments. For example,
suspicion of selling hard drugs or locating a coffee shop near a school or in a
residential district may result in closure. In April 1999, the "Damocles
Bill" amended the Narcotics Act
by expanding municipal powers regarding coffee shops and permitting local mayors
to close such places if they contravened local coffee shop rules, even if no
nuisance was being caused. As a result of strict enforcement and various
administrative and judicial measures, the number of coffee shops decreased from
nearly 1,200 in 1995 to 846 in November 1999.[78]
There
appears to be three types of policies on coffee shops:
·
tolerance
without condition as to the number of coffee shops, which is determined by
market mechanisms; this situation is the most rare;
·
conditional
tolerance, setting a maximum number of coffee shops;
·
zero tolerance:
no coffee shop; this is the case in approximately 50 per cent of Dutch
cities.
To
determine the ideal number of coffee shops, the association of municipalities
recommends that demographic factors (number of inhabitants, age groups) and
urban development factors (role of the city with respect to the region; number
of centres in the city) be considered, as well as any nuisance caused by the use
of soft drugs.
Thus,
in most municipalities, coffee shops are accepted on in the downtown area, and a
maximum number is determined in accordance with criteria of distance –
distance of the establishments from one another and distance between the coffee
shops and certain institutions such as schools and psychiatric hospitals. (…)
The difficulties encountered by certain mayors with regard to administrative
judges have come from the fact that the absence of any complaints or
contraventions has been considered by certain judges as an absence of any
concrete evidence of nuisance. A "substantiated" policy is ultimately
a policy based on a procedure for consulting drug addiction and public health
experts, police experts and, in certain instances, the public itself (including
users). This is also a balanced policy in the sense that it accommodates the
interests not only of "average" citizens irritated by public
nuisances, but also those of soft drug users.[79]
Since
the memo on public nuisances was issued in 1993 and stricter conditions were set
for the issuing of permits in 1999, municipal authorities have in fact been able
to issue "nuisance permits", which are thus used to monitor the number
of coffee shops, without moreover violating the fundamental orientations of the
Dutch system.
Data on use
Despite
the Dutch "pragmatism", there are ultimately few reliable historical
data on use trends. It therefore cannot be asserted that use trends
significantly increased after the coffee shop system was introduced, nor can it
be stated that they declined. The creation of the Trimbos Institute and its
designation as a focal point in the OEDT's European network are correcting this
situation.
The
following tables contain data from the most reliable surveys.
CANNABIS USE IN THE NETHERLANDS
BY
PEOPLE AGED 12 YEARS AND ABOVE. SURVEY YEAR 1997
Has ever used |
16% |
Has used recently |
2.5% |
Has
used for the first time in the past year |
1% |
Mean age of current users |
28 years |
CANNABIS USE IN THE FOUR LARGE CITIES AND IN SMALLER
TOWNS
AMONG
PEOPLE AGED 12 YEARS AND ABOVE. SURVEY YEAR 1997
|
Ever use |
Recent use |
Amsterdam |
37% |
8% |
Utrecht |
27% |
4% |
The Hague |
20% |
4% |
Rotterdam |
19% |
3% |
Smaller towns(a) |
11% |
|
(a) Definition: Towns with
less than 500 addresses per square kilometre.
CANNABIS
USE BY PEOPLE AGED 16 AND ABOVE IN
THREE
URBAN AREAS. SURVEY YEAR 1999
|
Ever
use(a) |
Recent
use(b) |
Utrecht |
30% |
7% |
Rotterdam |
19% |
6% |
Parkstad
Limburg(c) |
13% |
5% |
Percentage of users: (a)
16 to 70 years, (b) 16 to 55 years. Recent use: last month.
LEVEL
OF CANNABIS CONSUMPTION IN THE NETHERLANDS
BY
RECENT USERS AGED 12 YEARS AND ABOVE. SURVEY YEAR 1997
Days
of use in the last month |
Percentage
among recent users(4) |
1-4 |
45% |
5-8 |
14% |
9-20 |
15% |
More
than 20 days |
26% |
(a) Adds up to 100%.
CANNABIS
USERS IN THE NETHERLANDS PER AGE GROUP. SURVEY
YEAR 1997[80] |
|
WHERE
DO YOUNG PEOPLE PROCURE THEIR CANNABIS? |
|||
|
1996 |
1999 |
|
|
Obtain
cannabis from friends |
41% |
47% |
|
|
Purchase
cannabis in coffee shops |
41% |
32% |
|
|
Purchase
cannabis from a dealer |
11% |
11% |
|
|
Receive
cannabis from others |
5% |
8% |
|
|
Purchase
cannabis at school |
3% |
1% |
|
|
Grow
it themselves(a) |
- |
2% |
|
|
Pupils aged twelve and above in secondary schools (recent users)
(a) Only measured in 1999.
RECENT
CANNABIS USE IN SPECIAL GROUPS
Young
persons in |
Survey
Year |
Age |
Recent
Use |
Special schools for secondary education |
1997 |
12-18 |
14% |
Truancy projects |
1997 |
12-18 |
35% |
Judicial institutions |
1995 |
- |
53% |
Youth care institutions |
1996 |
10-19 |
55% |
Young drifters |
1999 |
15-22 |
76% |
As seen
in Chapter 6, the available data on the Netherlands place the country
somewhere in the middle of the field, behind Australia, the United States, the
United Kingdom, Spain and Denmark, and far ahead of Sweden and Finland.
Whatever
the case may be, and despite what some analysts refer to as a disastrous
situation, the Dutch experience poses fewer problems in relation to drug use in
the Dutch population than internal difficulties in connection with the nuisances
caused by the coffee shops for Dutch citizens and neighbouring countries,
Germany, France and Belgium, as a result of narco-tourism. Even more
significant, the Dutch system, with its half measures, is faced with the problem
of supplying coffee shops with cannabis and cannabis derivatives, which is still
entirely illegal.
Holland
does not escape criticism any more than other countries. From a theoretical
standpoint, the very principle of de facto legalization is debatable. It fosters
arbitrary action and, in particular, leaves the field open to trafficking. As
much as the legalization of drug use has made it possible to get a handle on the
phenomenon and make it visible so that it can be more effectively addressed, the
legalization of trafficking prevents any control. (…) In practical terms, the
criticisms are equally fundamental. The main criticism is that the Dutch policy
has not reduced the use of drugs, hard or soft. (…) Nor has the Dutch policy
eliminated the risks associated with drug abuse. (...) But it must also be
recognized, and it is to the credit of the Dutch policy that, while the
Netherlands has not actually done better than the prohibitionist countries in
the fight against drug use, it has not done worse.[81]
Ultimately,
the most remarkable thing is the ability of the Dutch stakeholders themselves,
as may be seen from their testimony before our committee, to admit the
weaknesses and errors of their approach, while constantly seeking ways to
correct them.
United
Kingdom[82]
Ten-year
strategy to battle drugs
In 1998,
at the same time as the newly elected Labour government announced an imposing
crime reduction program, it adopted a 10‑year strategy, based on a similar
model, to combat drug abuse in the UK.[83]
The strategy has four objectives:
·
To help young
people resist drug misuse in order to allow them to achieve their full
potential. The key objective is to reduce the number of people under age 25
reporting use of illegal drugs in the past month and previous year. The program
relies on education in schools and prevention efforts focusing on young people
at risk.
·
To reduce
levels of repeat offending among drug-misusing offenders, by giving them the
opportunity to take appropriate treatment. To do this, various treatment options
were added to the stages of arrest, probation and court appearance. In addition,
new drug treatment and testing orders will be made available in all courts in
England and Wales. This scheme allows a court, with the offender's consent, to
make an order requiring the offender to undergo treatment either in parallel
with another community order, or as a sentence in its own right. In addition,
the program known as Carats (Counselling,
Assessment, Referral, Advice and Throughcare) is available in all England
and Wales prisons, and additional prison-based rehabilitation programs are
planned.
·
Acknowledging
that waiting times are one of the main problems for people requiring treatment
and that the supply of treatment services is well below demand, the government
plan provides for the creation of a National Treatment Agency which will be
responsible for the provision of drug treatment and the delivery of high-quality
services. Harm reduction strategies will also be increased.
·
To reduce
access to drugs among five-to-16‑year old children, increase the seizure
of Class A drugs and increase assets seized from traffickers.
Ambitious
targets relating to the drug strategy have been set out in the Anti-Drugs
Co-ordinator’s First Annual Report and National Plan, including:
·
halving the
numbers of young people using illegal drugs (especially heroin and cocaine);
·
halving the
levels of re-offending by drug-misusing offenders;
·
doubling the
numbers of drug misusers in treatment; and
·
halving the
availability of drugs on the streets (especially heroin and cocaine).
Although
the 10‑year strategy is supposed to focus on the most harmful drugs
(heroin and cocaine), the number of people fined, cautioned and in some cases
jailed for possession of cannabis still exceeds 100,000 a year.[84]
Legislative framework
The main
illicit drug legislation in the UK is the Misuse of Drugs Act 1971 (MDA) (which
is equivalent to Canada’s Controlled
Drugs and Substances Act). This legislation and its regulations (Misuse of
Drugs Regulations 1985) control the use of listed drugs (including both medical
drugs and drugs with no medicinal use). They set out the circumstances in which
it is lawful to import, produce, supply, possess with intent to supply, and
possess controlled drugs.
Under
Schedule 2 of this Act, drugs are classified as either A, B or C in theory to
reflect the degree of harm they are considered to cause to the individual or
society when misused. Each class has different maximum penalties that apply to
prohibited activities in relation to drugs.
·
Class
A is reserved for
the more harmful drugs to which more severe penalties apply. This class
includes, among others, heroin, morphine, methadone, cocaine, opium and
hallucinogens such as Ecstasy and LSD. Also included are liquid cannabis
(hashish oil), cannabinol and cannabinol derivatives and any class B drug
prepared for injection.
·
Class
B includes
cannabis, cannabis resin, less potent opioids (codeine), strong synthetic
stimulants (oral amphetamines) and sedatives (barbiturates).
·
Class
C is reserved for
drugs that are considered the least harmful such as tranquillzers, some less
potent stimulants and mild opioid analgesics.
The
Home Secretary can change the classification of drugs through delegated
legislation as was just recently done for cannabis. This modification means that
possession of cannabis for personal use will not be an arrestable offence but
obtain a police caution.
Sections
3 to 6 set out which activities in relation to drugs are prohibited. They
include importation and exportation (the actual offences are contained in and
prosecuted under the Customs and Excise Management Act 1979), production,
supply, possession, and possession with intent to supply. Cultivation of
cannabis is a separate offence but is also considered production. Under section
8, it is prohibited for the occupier knowingly to permit premises to be used
for: production; the supply of any controlled drug; the preparation of opium for
smoking; or the smoking of cannabis, cannabis resin or prepared opium. Section 9
provides a series of offences related to opium, including smoking or otherwise
using opium. Section 9A prohibits the supply of any article which may be used in
the unlawful administration of drugs (hypodermic syringes are excluded from this
prohibition for the purpose of needle exchange programs). Sections 18 to 21
create other offences mainly dealing with incitement to commit an offence under
the MDA.
Penalties
are set out in sections 25 and 26. Section 27 deals with forfeiture.
·
For class A
drugs, the maximum penalties are as follows: seven years and/or unlimited fine
for possession; life and/or unlimited fine for production or trafficking with a
mandatory seven-year sentence for a third conviction for trafficking. The
mandatory sentence for a third conviction of trafficking is found in the
Criminal Sentences Act 1997.
·
For class B
drugs, the maximum penalties are: five years and/or unlimited fine for
possession; and fourteen years and/or unlimited fine for production or
trafficking.
·
For class C
drugs, the maximum penalties are: two years and/or unlimited fine for
possession; and five years and/or unlimited fine for trafficking.
In
addition, producers and traffickers are also liable to confiscation of assets
under the Drug Trafficking Act 1994. As stated above, growers of cannabis may be
prosecuted under section 4 (production) of the MDA rather than under section 6
(cultivation) of this Act. This is significant because production (but not
cultivation of cannabis) is designated a trafficking offence for the purposes of
the Drug Trafficking Act 1994. In 1997, a total of 4,168 people were dealt with
for production offences of which 92% involved production of cannabis (25% of
these offenders were cautioned and 18% of those who were found guilty were
sentenced to immediate custody). Offences that are designated as trafficking
offences for the purposes of the Drug Trafficking Act 1994 include production,
supply, and possession with intent to supply as well as importation offences
under the Customs and Excise Management Act 1979. In the UK, most drug offences
may be tried summarily by magistrates or on indictment with a jury at a Crown
Court. If tried summarily, the maximum cannot exceed six months and/or £5000
fine or three months and/or fine for less serious offences.
Section
7 allows for regulations to be made to exempt certain activities from the
offence provisions. This allows for the use of drugs for medicine and for
scientific research. The Misuse of Drugs Regulations 1985 divide drugs into five
schedules. The regulations set out the classes of persons who are authorized to
handle controlled drugs while acting in their professional capacities and lay
down the conditions under which certain activities may be carried out. More
severe rules regarding importing, exporting, production, supply, possession,
prescribing and record-keeping apply to Schedule 1 drugs with a gradual
loosening of the rules for other schedules. For example, the most restricted
Schedule 1 drugs (such as LSD and cannabis) can be supplied or possessed only
for research or other special purpose by licensed individuals and are not
available for normal medical uses and cannot be prescribed by doctors who do not
have a licence. Schedule 2 drugs–which must be prescribed–are subject to a
number of controls relating to prescriptions, secure storage and the need to
keep records. Schedule 5 drugs, meanwhile, are subject to the least
administrative controls and may be freely imported, exported or possessed for
personal use.
Cannabis
and certain psychoactive cannabinoids and derivatives are classified under
Schedule 1 as having no therapeutic benefit. Thus, they cannot be prescribed and
can only be possessed for research purposes by someone who is licensed to do so.
Nabilone (a synthetic cannabinoid) is licensed for prescription to patients with
nausea or vomiting resulting from cancer chemotherapy, which has proved
unresponsive to other drugs. Dronabinol (a cannabinoid) has been rescheduled
from Schedule 1 to Schedule 2 and can be prescribed. However, it remains
unlicensed in the UK and has to be prescribed on a "named patient
basis."
Section
10 allows the making of regulations dealing with safe custody, documentation of
transactions, record-keeping, packaging and labelling, transport, methods of
destruction, prescriptions, the supply of information on prescriptions to a
central authority, the licensing of doctors to supply controlled drugs to
addicted patients, and the notification by doctors of their addicted patients.
The
Misuse of Drugs (Supply to Addicts) Regulations 1997 restrict to a few specially
licensed doctors the ability to prescribe heroin, dipipanone and cocaine for the
treatment of addiction.
Other
relevant legislation in the field of drug misuse
The
Medicines Act 1968 (equivalent to Canada’s Food
and Drugs Act) regulates the production and distribution of medicinal drugs
and other medicinal products in the UK. It generally requires a marketing
authorization or licence before a product may be distributed. The Act deals with
the testing, sale, supply, packaging, labelling, prescribing, dispensing by
pharmacists, and selling in shops of medicinal products. Many controlled drugs
are also medicinal products and must thus satisfy the requirements of both the
MDA and the Medicines Act 1968.
The MDA
prohibits the importation or exportation of a controlled drug unless it is
exempted by regulation or it takes place under the proper licence. The offences,
however, are actually under the Customs and Excise Management Act 1979 which
acts together with the MDA to prohibit unauthorized importation or exportation
of controlled drugs. The offences under the Customs and Excise Management Act
1979 are usually charged and prosecuted by H.M. Customs and Excise rather than
by the police and Crown prosecutors. In 1997, a total of 1,741 people were dealt
with for these offences, 68% of which involved cannabis (31% were dealt with by
compounding and of those found guilty by the courts, 79% were sentenced to
immediate custody).
Part II
of the Criminal Justice (International Co-operation) Act 1990 controls the
manufacture and supply of certain precursor chemicals which can be used in the
manufacture of illicit drugs. Manufacture or supply contrary to the Act is a
trafficking offence for the purposes of the Drugs Trafficking Act 1994.
Regulations may be made dealing with notification of exports, record-keeping and
the supply of information.
The Drug
Trafficking Act 1994 was adopted to enable the UK to meet its obligations under
the United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances 1998 (The Vienna Convention). It creates offences in
connection with laundering and handling of the proceeds of drug trafficking, and
introduces confiscation measures. The burden of proof is placed on the defendant
to prove that the assets were lawfully acquired and applies the civil standard
of proof on the balance of probabilities. The MDA does not distinguish between
trafficking and non-trafficking offences. Rather, this distinction is made in
the Drug Trafficking Act 1994; the main consequence of designating an offence as
a trafficking offence is that the confiscation provisions apply. In addition, an
offender is liable for a third trafficking offence involving a Class A drug to a
minimum penalty of seven years imprisonment under the Crime Sentences Act 1997.
Debate
in the UK
As in
Canada, the debate in the UK regarding cannabis would appear to revolve around
two issues: (1) decriminalization or legalization of cannabis for recreational
use; and (2) the medicinal use of cannabis.
Although
cannabis is now a Class C drug, its recreational use is still prohibited in the
UK. Under the MDA, it is illegal to grow, produce, possess, or supply cannabis
to another person. It is also an offence to allow premises to be used for
growing, preparing, supplying or smoking it. Maximum penalties for cannabis
offences in the UK are fairly severe (these vary throughout the EU). As in
Canada, there is considerable discretion in how the law is applied and in many
cases the police caution those found in possession of small amounts of cannabis.
In the Report of the Independent Inquiry
into the Misuse of Drugs Act 1971, Drugs and the Law, the following was
stated regarding the use of discretion, particularly with respect to cannabis:
Many cases are kept away from the courts by cautioning
and compounding and, in Scotland, warning letters and fiscal fines. By far the
largest increase in police cautioning in England and Wales has been for cannabis
offenders, from 41% in 1990 to 55% in 1997. This has meant in practice a
tripling in the number of cannabis offenders for which a caution was given, from
16,500 to 47,000. Cautions are part of an offender’s criminal record. There is
no provision at present for these records to expire under the Rehabilitation of
Offenders Act 1974. The Government has recently issued a consultation paper
proposing that this anomaly should be corrected and that cautions should be
immediately spent. This would also apply to reprimands and warnings, which are
to replace cautions for young people under 18 under the Crime and Disorder Act
1998.
Cautioning is not used by
H.M. Customs and Excise or in Scotland. For importation and exportation
offences, compounding – a monetary penalty in lieu of prosecution – may be
used in cases involving cannabis not exceeding 10 grams in weight. While
compounding does not necessarily become part of an offender’s criminal record,
it may be mentioned in subsequent court proceedings Its use for cannabis
importation offenders fell between 1990 and 1997 from 58% to 45%.
…This discretion in the
implementation of the MDA is desirable but produces anomalies in the differing
regimes of cautioning and compounding, and inconsistencies in the cautioning
rates between police forces. More than half of the arrests for cannabis offences
result in a caution. We do not criticise the police for their extensive use of
cautioning. It is currently the only realistic and proportional response.
Without it, the courts would have ground to a halt. However, the use of
discretion does not lessen the disproportionate attention that the law and the
implementation of the law unavoidably give to cannabis and cannabis possession
in particular.[85]
The use
of cannabis for medicinal purposes has a long history in the UK. It was
prescribed as a medicine in the UK until 1973. At that time, it became a drug
that could not be legally used as a medicine and today its medicinal use remains
prohibited. As will be discussed in the next section, the Science and Technology
Committee of the House of Lords recommended that cannabis be made available for
medicinal purposes in a 1998 report. This recommendation was rejected by the
government, which indicated that before such a change could be considered, the
safety and efficacy of cannabis would have to be demonstrated. G.W.
Pharmaceuticals has been given permission to grow cannabis with the aim of
developing a cannabis-based medicine; clinical trials have commenced in the UK.
Recent
key reports and studies
Science and Technology
Committee of the House of Lords
In
1998, the Science and Technology Committee of the House of Lords studied the
issue of medicinal use of cannabis and tabled a report entitled Cannabis: The
Scientific and Medical Evidence. The purpose was to examine the scientific and
medical evidence with respect to the medicinal use of cannabis and determine
whether current restrictions were appropriate. In addition, the Committee
considered whether the prohibition on recreational use was justified based on
the scientific evidence of adverse effects. However, the mandate did not include
other issues such as the social and legal aspects of cannabis use.
The
Committee discussed the long history of cannabis use both as a medicine (usually
in the form of a tincture) and an intoxicant. The Committee noted that the
"advent of a host of new and better
synthetic drugs led to the abandonment of many ancient herbal remedies,
including cannabis."[86]
The Medicines Act 1968 allowed the
government to licence pharmaceutical companies and products, and cannabis was
still able to be prescribed under certain conditions. In 1973, cannabis’s
licence of right was not renewed and the regulations under the Misuse
of Drugs Act 1971 prohibited medical use altogether (by listing cannabis in
what is now Schedule 1).
The
Committee then went on to review the pharmacology of cannabis and the different
ways it may be administered, the toxic effects of cannabis, including: the short
and long-term effects of it; whether the user develops tolerance to the drug;
and whether it causes dependence. The Committee found that although cannabis
"is not in the premier league of
dangerous substances, new research tends to suggest that it may be more
hazardous to health than might have been thought only a few years ago."[87]
Concerning
the current medical use of cannabis in the UK (quite widespread even though it
is illegal) as well as the current medical uses of cannabinoids (certain
cannabinoids are legally in current use in UK medicine), the Committee proposed
new indications for cannabis-based medicines (including alleviating certain
symptoms related to multiple sclerosis). The Committee stated that it "is
important to distinguish the different substances and preparations; for
instance, cannabis leaf must be distinguished from cannabis extract, and whole
cannabis from THC. It is also important, although not always easy, to
distinguish the various possible routes of administration, e.g. by smoking and
by mouth."[88]
Based on
evidence that cannabis can be effective in relieving the symptoms of multiple
sclerosis and against certain forms of pain, the Committee recommended that
clinical trials of cannabis for these conditions "be mounted as a matter of
urgency." The Committee members did indicate that if a medicine became
licensed (after clinical trials), they did not envisage smoking being used to
administer it. Thus, they called for research into alternative delivery systems.
The Committee also recommended that cannabis should be reclassified as a
Schedule 2 drug so that doctors would be permitted to prescribe an appropriate
preparation of cannabis, "albeit as
an unlicensed medicine and on the named-drug basis"; this would also
allow research without a special licence.
Compassion
was the main reason for recommending the change to the law (a law under which
patients risk prosecution to get help). Another reason was the inconsistent way
in which the law was enforced, which brought it and Parliament into disrepute.
The
Committee did note that cannabis-based medicine would not be appropriate for
certain groups of patients such as pregnant women, people predisposed to
schizophrenic illness or those with cardiovascular conditions. In addition,
users would have to be warned of possible side-effects. The risk of addiction
would have to be considered when deciding whether to prescribe. Thus, the
Committee recommended that "if
doctors are permitted to prescribe cannabis on an unlicensed basis, the medical
professional bodies should provide firm guidance on how to do so responsibly"[89]
and that "safeguards must be put in place by the professional regulatory
bodies to prevent diversion to improper purposes."[90]
With
respect to the recreational use of cannabis, the Committee added that although
the harms must not be overstated, there was enough evidence of toxic effects of
cannabis to justify maintaining the current prohibition.
The
government rejected the recommendation to reclassify cannabis. It indicated that
before cannabis should be available for prescription, its safety, quality and
efficacy would have to be demonstrated and a marketing authorization issued by
the Medicines Control Agency. In addition, the government indicated that
allowing prescriptions of cannabis would reduce momentum in research. The
government was also concerned with the possibility of prescribed cannabis being
used for improper purposes.
In March
2001, the Science and Technology Committee of the House of Lords presented
another report dealing with the current state of research into the therapeutic
uses of cannabis, the roles of the Home Office and the Medicines Control Agency
in the licensing of cannabis-based medicines, and more recent issues relating to
the prosecution of therapeutic cannabis users. The Committee reiterated that
cannabis should remain a controlled drug and that the legalization debate should
maintain a clear distinction between therapeutic and non-therapeutic use.
With
respect to the current state of research, the Committee noted trials recently
approved for funding by the Medical Research Council. The Committee was
concerned about the long timeframe for developing usable therapeutic
preparations from these trials. It was more encouraged with the progress being
made by G.W. Pharmaceuticals, both with respect to establishing the efficacy of
a cannabis-based medicine and in developing suitable medical preparations (e.g.,
a sub-lingual spray).
The
Committee also discussed the prosecution of therapeutic users of cannabis. They
noted that the decision to prosecute varies from region to region and that, in
some cases, juries have acquitted therapeutic users who do not deny the offence
but plead therapeutic use in mitigation while others are found guilty. The
Committee believed that the acquittal of cannabis users by juries on
compassionate grounds brings the law into disrepute. According to the Committee,
this problem underlines the need to legalize cannabis preparations for
therapeutic use.
The
Committee noted that the decisions made by the Medicines Control Agency appear
to be inconsistent. For example, although it is satisfied that the information
on the toxicological profile of delta-9-tetrahydrocannabinol is adequate, it is
not satisfied with the toxicology data of cannabidiol. The Committee was of the
view that the Medicines Control Agency had "not adopted a positive approach towards the licensing of a
cannabis-based medicine." The Committee was concerned that the
Medicines Control Agency’s approach places "the requirements of safety and the needs of patients in an unacceptable
balance." The Committee concluded that the Agency’s attitude "means
that cannabis-based medicines are not being dealt with in the same impartial
manner as other medicines."
We believe that a thorough
and impartial reappraisal of the published scientific literature on the safety
of CBD and cannabis extracts should lead the MCA to reconsider their present
overly cautious stance. We are at least encouraged that the MCA state that they
are conducting a more detailed review of existing literature reports on cannabis
and CBD. [91]
The Runciman Report
In
August 1997, The Police Foundation set up an independent inquiry (chaired by
Viscountess Runciman) to assess the UK’s legislation on the misuse of drugs.
The main goal was to determine whether the legislation needed to be revised in
order to be more effective and more responsive to the changes that had taken
place in the 30 years since the original law was passed.
The
report recognizes that the goal of drug legislation must be to control and limit
the demand for and the supply of illicit drugs because eradication of drug
misuse is not a realistic goal. The report also stated that the law must fulfil
UK’s international obligations and noted that international agreements –
while restricting some options – allow for room to manoeuvre, particularly in
the areas of drug use and possession.[92]
The report discussed different approaches towards drug use and possession and
towards minor acts of supply taken by some other European countries and found
that the UK had a comparatively more severe regime of control of possession
offences.
The
report indicated that the law should be based on the following principles:
·
as a means of
reducing demand, the law is only one aspect of a broader agenda of health,
prevention and education;
·
it should
reflect the latest scientific understanding and the social and cultural
attitudes of modern British society;
·
it should be
realistically enforceable;
·
it should
infringe personal freedom only to the degree necessary to restrain serious
levels of harm to users or others;
·
it should
target the drugs that cause the most harm;
·
it should
reflect the relative harmfulness of activities connected with each illicit drug
or category of drugs, and provide for sanctions proportionate to that harm; and
·
in its
operation, the law should be accepted by the public as fair, consistent,
enforceable, flexible and just.
The
report noted a steady increase in the prevalence of both problem drug use
(including injecting among problem drug users) and casual drug use in the UK
over the past 30 years. Cannabis is the most widely used illegal drug, with age
30 being the big divide in drug use. Despite there being a steady rise in drug
offences and seizures (including amounts seized) over the years, the report
concluded that efforts to limit supply have in the most part failed. The report
found that the public views health-related dangers of drugs as more of a
deterrent than their illegality, availability or price. In addition, public
attitudes to cannabis compared to other drugs were significantly different
(cannabis was seen as the least harmful drug, its possession should be the
lowest of priorities for police, and a number of people – a third to half –
believe that the laws should be relaxed).[93] All age groups shared
these views, although support for legalization was not as strong among older age
groups. With respect to other drugs, strong drug laws were fully supported
despite concern with health risks resulting from drug use. The public was much
more concerned with trafficking than with possession offences. The inquiry found
that there was a lack of data on drug use and the absence of detailed cost
information about drug use (e.g., health care, enforcement and other social
services costs). Thus, it was difficult to do any type of assessment of drug
control and prevention strategies
The
UK’s drug classification was reviewed and the report recommended keeping the
current three-tier drug classification system (class A, B and C). This
classification enables authorities to distinguish between the relative risks of
different drugs and allows sanctions to be applied that are proportionate to a
drug’s harm. However, the report found that the criteria by which drugs are
classified should be clearly described. The classification should take into
account modern developments in medical, scientific and sociological knowledge;
as well, the main criteria should be dangerousness of the drug to the individual
and to society. The report set out factors to consider, including: the risks of
the drug itself (acute and chronic toxicity); risks due to the route of use;
extent to which the drug controls behaviour (addictiveness/dependency) and ease
of stopping; and social risks (costs to society in terms of crime, medical
costs, social harm through intoxication, etc.). Based on these factors, the
report recommended some changes to the drug classes to counteract what the
members felt was a dangerous message, i.e., that all drugs are equally
dangerous. The members of the inquiry believed that these changes would enhance
the law’s credibility and that education and attention should be refocused on
the more harmful drugs such as heroin and cocaine. The report recommended the
following changes:
·
cannabis should
be reclassified from a class B drug to a class C drug and cannabinols from class
A to class C;
·
heroin and
cocaine would remain in class A (the most dangerous drug category) while Ecstacy
and LSD would move to class B; and
·
buprenorphine
would move from class C to class B.
It is
interesting to note that the members of the inquiry would have classified
alcohol as a class B drug bordering on A, while tobacco would have been on the
borderline between B and C, if these substances were controlled under the MDA.
The
report found that possession offences should remain, even if for personal use.
However, the law should minimize the harmful consequences of a contravention in
appropriate cases. The report concluded that for the majority of possession
offences, imprisonment was neither proportionate nor effective. It recommended
that imprisonment no longer be available for possession of class B or class C
drugs. Imprisonment should remain a possibility for possession of class A drugs,
although the maximum would be shorter than what is currently set out. This would
reflect what the courts are currently doing; the average possession sentence is
fairly short compared to the maximum available. In addition, the report
recommends lowering the maximum fines for all classes of drugs. According to the
report, imprisonment for possession would be rare. Non-custodial responses would
include fines, probation orders, probation orders with treatment conditions
attached, and conditional discharges. These sanctions would be most suitable for
possession of class B and class C drugs where a caution was not appropriate. The
report noted that in over 50% of cases, police use cautioning. This approach was
supported but the report felt that this discretion needed a proper framework.
Thus, cautions should become a statutory sanction with guidelines set out in
regulations. This would allow the enforcement of conditions attached to a
caution. Finally, the report recommended that a caution should not carry a
criminal record. If the recommendation to reclassify cannabis as a class C drug
were carried out, it would have certain consequences, including that police
would no longer be allowed to arrest for possession of cannabis. For arrestable
offences, the police have powers to insist that suspects accompany them to the
police station and to search their premises without a warrant. Police would
still have the power to stop and search for all drugs, however.
With
respect to trafficking, the report mentioned that there should be an attempt to
differentiate between acts of different gravity with respect to supply offences
(for example, supply between friends versus as part of an organized criminal
group and supply of class A drugs versus other drugs). The report recommended a
separate offence of dealing, the main ingredient of which would be the pattern
of activity of illicitly transacting business in drugs. The offence would be a
trafficking offence for the purposes of the Drugs Trafficking Act 1994. The
report also recommended that the maximum penalty for trafficking in class A
drugs be lowered to 20 years and that the maximum for class C drugs (including
cannabis) be raised to seven years. The report also recommended the adoption of
sentencing guidelines, for trafficking offences in particular. The report also
mentioned the ineffectiveness of the laws dealing with confiscation of assets
(in their view, a pragmatic problem rather than a legislative one). The report
recommended improving the effectiveness of the current system by setting up a
new national confiscation agency and making several other changes.
Although
the inquiry members believed that the drug legislation in general did not need
radical change, the legislation’s application to cannabis was the exception.
Thus, many of the more significant changes apply to this drug. The report noted
that it was the drug most widely used and most likely to bring people in contact
with the justice system. The report also noticed the gap between how the law is
written and how it is practised with respect to cannabis (due to the use of
discretion). The members of the inquiry were of the view that cannabis was less
harmful to the individual and society than other illicit drugs (although not
harmless). With respect to cannabis, it was felt that the current law produces
more harms than it prevents and that the law’s response is disproportionate to
the drug’s harm. The report, thus, recommended penalties for cannabis
possession for personal use be decreased and that imprisonment not be an option
(normal sanctions for possession and cultivation for personal use would be
out-of-court disposals, including informal warnings, statutory cautions or a
fixed out-of-court fine). In addition, the report stated that cultivation of
small amounts of cannabis should be prosecuted under section 6 (cultivation of
cannabis) rather than section 4 (production) so that it not be considered a
trafficking offence. The cultivation offence should be treated in the same way
as possession of cannabis. In addition, permitting people to smoke cannabis on
their premises would no longer be an offence. The members of the inquiry were of
the view that the benefits of such a strategy outweigh the risks and that this
would promote the targeting of enforcement on those drugs and activities that
cause the most harm.
The
report concluded that demand is not significantly reduced by the deterrent
effect of the law. Education and treatment can be successful, however. Thus, the
members recommended a less punitive approach to possession offences and a more
punitive approach to trafficking (particularly with respect to profits obtained
from drugs). The members believed that harm could be reduced with credible
education and treatment when needed. They indicated that treatment is
cost-effective in reducing problem drug use and associated criminal activity and
recommended a substantial reallocation of resources from enforcement (currently
62%) to treatment (currently 13%).
With
respect to the medicinal use of cannabis, the report concluded that the
therapeutic benefits of cannabis for certain serious illnesses outweighed any
potential harm. They endorsed the view of the House of Lords report that
cannabis and cannabis resin should be moved to Schedule 2 (thus permitting
possession and supply for medical purposes). Because the House of Lords
recommendation was rejected by the government and because it would be years
before a licensed cannabis product becomes available, the report recommended a
new defence in law: duress of circumstance on medical grounds for those accused
of the possession, cultivation or supply of cannabis for the relief of certain
medical conditions.
In its
reply to the report, the government rejected or referred for further
consideration many of the recommendations made by the inquiry. On the key issues
of reclassifying cannabis and the depenalization of cannabis, the government did
not support the inquiry’s recommendations. With respect to the
reclassification of cannabis, the government was mainly concerned with the
health risks associated with its use. With regard to depenalization, the
government rejected removing imprisonment as a possible sanction. In addition,
they did not want the police powers of arrest to be abolished for these
offences. In dealing with the medicinal use of cannabis, the government
indicated that the quality, efficacy and safety of a medicinal form of the drug
must be established before prescribing should be allowed.
As
we now know, the government has since reclassified cannabis and abolished prison
terms for possession for personal use.
Other reports
A
Working Party of the Royal College of Psychiatrists and the Royal College of
Physicians also published a report in 2000. Entitled Drugs:
Dilemmas and Choices, the report examined key issues in preventing drug
misuse. In particular, it states:
Spending on prevention:
Three-quarters of UK expenditure is devoted to enforcement and international
supply reduction. There is little evidence that this is money well-spent. The
proven cost-effectiveness of methadone maintenance and abstinence-based
programmes for heroin addicts suggests that more of the available budget should
go to treatment programmes. New money for treatment announced by the Government
is welcome, but calls for expansion of unproven and untested treatments must be
resisted.
Research: Current UK
expenditure on drugs research does not begin to match the magnitude of the
problem. Just one per cent of the annual drugs prevention budget would inject £14 million
into research – over double the current spent.
Improving the value of
treatment: Systematic investment in staff training, monitoring of patients and
essential support services is needed to bring improvement rates achieved by UK
treatment programmes closer to those in the United States. In particular, more
extensive drug treatment facilities are needed for adolescents.
Private prescribing: Private
prescribing of substitute drugs leaves scope for malpractice that comes close to
‘buying a prescription’. Doctors treating drug-users outside the health
service are not currently required to have extra training in addictions and
receive little monitoring or regulation.
Drug-testing by employers:
Although expensive and surrounded by legal and ethical issues, the technology
exists for drug-testing of employees using hair samples. This provides a record
of drug-use over the previous three months and could, therefore, have a major
impact on the prevalence of drug-use in future.
Ecstasy: Many young people
use Ecstasy, and some drugs education campaigns may have proved
counter-productive. Any advice given to young people should take account of the
likely impact on those who continue to use drugs as well those who will be
deterred.
Amphetamine: Dependence on
amphetamine, especially when injected, probably carries more risk to users and
public health than heroin. Little research has been carried out into dependence
or treatment.
Cannabis: Cannabis is not a
harmless drug, but its ill-effects on health are almost certainly less than
those of tobacco or alcohol, which are legal. More research is needed into the
medicinal benefits and long-term ill-effects of the drug. Legislative
experiments, as in the Netherlands, should be encouraged. People requiring
cannabis to relieve disabling medical conditions, such as multiple sclerosis,
should not be prosecuted.
Future policy: The
Government’s Ten-Year Strategy for Tackling Drug Misuse recognises the need
for greater investment in treatment. But there are no easy answers, and
ambitious targets for reducing the proportion of young people using heroin and
cocaine by 50 per cent by 2008 are unlikely to be achieved by the modest
initiatives announced so far. Attempts to curb the illegal international drugs
trade have consistently failed and will probably continue to do so. If the
prevalence of drug-use and drug-related crime continues to rise, the pressure on
the UK and other governments to change policies that are clearly failing is
bound to increase. [94]
Administration
Because
of the complexity of the drug problem, many different departments and
organizations are involved in implementing the UK drug strategy. The key
organizations in the UK’s drug strategy are the drug action teams at the local
level, which are responsible for ensuring that the strategy is translated into
concrete action.
Costs
Public costs
In
1997/1998, most of the costs were directed at enforcement. The total expenditure
of £1.4 billion was spent on the following activities:
·
drug
misuse, enforcement and international supply reduction
accounted for 75% (enforcement includes police, court, probation, and prisons
– 62%; international supply, which encompasses customs and excise, Foreign and
Commonwealth Officer – 13%);
·
treatment
and rehabilitation–13%;
and
·
education
and prevention–12%.[95]
Following
a comprehensive spending review in 1998, an additional £217 million were
to be allocated over a three-year period to drug activities. "A substantial
share of these new funds will be directed at initiatives designed to break the
link between drug misuse and crime, including Arrest Referral Schemes and Drug
Treatment and Testing Orders. The idea is to provide every drug misusing
offender entering a police station or prison with a chance to seek treatment by
the year 2002."[96]
The extra funds were to be spent as follows:
·
£133 million
for the implementation of the strategy to tackle drug misuse in the criminal
justice system.
·
Prisons would
receive £60 million for treatment services and £12 million for
voluntary drug testing in prisons.
·
£61 million
for the piloting and implementation of Drug Treatment & Testing Orders.
·
£70.5 million
would be allocated to health and local authorities to fund new treatment
services and to improve community care for drug misusers.
·
Health
Authorities would receive £50 million for treatment services and for young
people at risk.
·
Local
Authorities would receive £20.5 million to improve access to services and
increase numbers in treatment programs.
·
£10.5 million
would be allocated to support Drug Action Teams across the country and for
national research into effectiveness of anti-drugs activity.
·
£3 million
would be allocated to support cross-departmental development of more effective
drugs education.
·
£6 million
over 3 years would be provided for a major new research program.
·
An extra £3 million
would be available from the Confiscated Assets Fund in 1999/2000, to be
increased to £5 million and £7 million in subsequent years.[97]
Social costs
The UK
Anti-Drugs Co-ordinator’s Annual Report 1999/2000 stated that drug misuse
costs Britain over £4 billion per year in crime, sickness and absenteeism.
In addition, it was estimated that one-third of property crime is related to
drugs.
Statistics
The
Office for National Statistics estimates that the illegal drugs market alone
accounts for nearly 1% of national output, equivalent to £8.5 billion a
year.[98]
Despite
the criticisms made in certain reports, the UK has an impressive database on
drug use trends. Every two years since 1983, the Home Office has conducted
the national British Crime Survey, which includes a series of questions on
illegal drug use. The Home Office also keeps detailed data on arrests,
convictions and sentences. The DrugScope
organization is the British correspondent for the OEDT.
Use
In the
16-59 age group, 32% in England and Wales say they have "ever used a
drug" (1996 = 29% and 1994 = 28%). This rises to 50% for the 16-24 age
group. Recent drug use was less common, however. For example, in the 1994, 1996
and 1998 surveys, 10%-11% reported drug use in the last year and 6% reported
drug use in the last month. Drug use does change with age: 30% of 16- to 24 year
olds reported drug use in the last year and 20% in the last 30 days (this
compares to 3% and 1.5% for 45‑to 54 year olds). In addition, there
is a higher prevalence of drug use in males than in females. With respect to
children, surveys in England show that 13% of respondents aged 11 to 15 reported
ever taking a drug. For children, prevalence increases with age. For example, 3%
of 11- to 12-year-olds, 13% of 13- to 14-year-olds, and 31% of 15 year-olds
reported ever using drugs.
Cannabis
is the most widely cultivated, trafficked and used illicit drug in the UK. The
young use it most commonly, with usage declining with age. Almost half of 16- to
24 year olds in England and Wales report ever using cannabis, with 17%
using it in the last month. Only 5% of adults aged 55 to 59 report ever using
this drug.
Offences
As
stated, people arrested in the UK may be dealt with in different ways including
cautioning by police or prosecution (except in Scotland where other procedures
are available). Under the Customs and Excise Act 1979, compounding (the payment
of a monetary sum in lieu of prosecution) is available in cases of importation
of small quantities of cannabis (10 grams or less). In addition, the authorities
may use their discretion and take no further action. This last option would not
appear in criminal statistics.
The
total number of people dealt with for drug offences went from 35,000 in 1988 to
153,000 in 1998. Of these, 127,840 were found guilty, cautioned, fined or
settled with by compounding. In 1997, the number was 113,150. The most common
drug was cannabis at 76%. Almost 90% of MDA offences are possession offences
and, generally, three-quarters of all possession offences involve cannabis. The
number of people who receive cautions has increased dramatically over the years
and of the people found guilty, cautioned, fined or settled with by compounding,
cautioning now accounts for almost 50%. Thus, many of the cases are dealt with
outside the courts.
In 1998,
the number of drug seizures was 149,900, an 8% increase over 1997. Cannabis was
involved in 76% of the cases. Between 1995 and 1999, the average price of most
drugs remained relatively stable.
Sweden[99]
When
contrasting a successful model with the Dutch "failure", the witnesses
we heard invariably mentioned Sweden. In Sweden, the drug phenomenon is
considered one of the most serious social problems (if not the most serious),
and drugs are viewed as an external threat to the country.[100]
Drug addiction is often viewed as the cause of other social problems and the
drug problem itself as jeopardizing Sweden's traditional values. These concerns
have intensified since Sweden became a member of the European Union (EU) in
1995, since most of the other members of the EU have adopted a more liberal
attitude on drug issues. In comparison to other western European countries,
Swedish drug policy is regarded as restrictive. One of the aims of the policy is
to make it clear that drugs are not tolerated in society, and its overall goal
is a drug-free society. In particular, we observe that:
·
harm reduction
programs are available in a limited fashion only;
·
treatment is
based on obtaining complete abstinence and it is possible to force people into
treatment;
·
drug use is an
offence, and urine and blood tests are used to detect those suspected of drug
use;
·
drug
legislation is strictly enforced;
·
discussions
regarding the medical value of cannabis are almost non-existent;
·
Swedish
legislation strictly adheres to, and even exceeds, the requirements set out in
the three United Nations drug conventions.
While
Swedish drug policy is currently very restrictive, this was not always the case.
In fact in the 1960s, its policy was fairly liberal, basically reflecting a harm
reduction approach.[101]
For example, from 1965 to 1967, it was possible for severe drug abusers to
obtain prescriptions for morphine and amphetamines. This non-scientific
experiment (involving approximately 120 people) was used by Nils Bejerot, a
police doctor and very influential figure in Swedish drug policy, in his study
of the relationship between drug use and drug policy in the period between
1965-1970. Some of his findings included: that changes from restrictive to
permissive policy and vice versa was reflected in the rates of intravenous drug
use; that this experiment was the origin of the Swedish drug epidemic; and that
the experiment did not have the desired effect of crime reduction. His findings
are still widely accepted in Sweden even though they have been criticised.[102]
With
increased drug use in 1965, the Committee on the Treatment of Drug Abuse was
established: it published four reports from 1967 to 1969. The first report dealt
with treatment and the second with repressive measures. It is this second report
which led to the adoption of the Narcotic
Drugs Act in 1968. The Committee’s reports indicated that the drug problem
was on the increase. This finding, in conjunction with the findings of Bejerot,
are partly responsible for the more restrictive approach adopted by Sweden in
the late 1960s. In addition, since 1968, the government organized a massive
media and school campaign against drugs. This led to a generation growing up
with messages based on the gateway theory, among others.[103]
This theory is
used as a justification for being restrictive in relation to cannabis and "Swedish drug policy actually focuses on cannabis, since it is alleged
‘drug careers’ start with this substance."[104]
In addition, the dangers caused by cannabis itself (psychosis, addictive
character, higher risk of suicide, etc.) are seen as reasons for having a
restrictive policy.
Over
time, Swedish policy became more restrictive and repressive, resulting in the
strengthening of penalties, criminalizing of use, and allowing of urine and
blood tests for those suspected of use. Although the original goal of the urine
and blood tests was to detect new users and provide them with appropriate
treatment, it would appear that the tests are no longer being used for this sole
purpose as known drug users are also being targeted.[105]
Some
authors have drawn a link between Sweden’s restrictive drug policy and its
restrictive alcohol policy. The temperance movement has a long history in Sweden
and the country has developed a fairly restrictive alcohol policy, including a
state monopoly on the sale of alcohol.
Swedish attitudes towards
alcohol are relevant since a restrictive alcohol policy makes a restrictive drug
policy a logical option. Moreover, the total consumption model on which the
alcohol policy is based, is thought to be valid for illicit drugs as well. By
limiting the total consumption of drugs, the total harm caused by drugs is
alleged to be lower as well. However, it was shown that this correlation is far
from clear when it comes to (different) illicit drugs. [106]
National strategy
Following
the creation of a Commission on Narcotic Drugs, the Swedish government presented
a new action plan in January 2002, which is to be valid until 2004. A total of
SKR 325 million (approximately $50 million Canadian) has been
allocated over the three-year period to combat illegal drug use. The action plan
was presented as a means to reverse the disturbing trend in drug abuse.
[107]
The
policy's objectives are to:
·
reduce the
number of new recruits to drug abuse (mainly through prevention directed at
young people);
·
encourage more
drug users to give up the habit (through care and treatment); and
·
reduce the
supply of drugs (through criminal measures).
One
of the key new features of the drug strategy is the creation of a national
anti-drugs coordinator position. The position was created to have clear
leadership in the drug policy area, make it possible to follow up on the
plan’s goals, and determine whether new initiatives are required to combat new
problems. The key tasks for the new anti-drugs coordinator are to:
·
develop cooperation with
authorities, municipal and county councils, NGOs, etc.;
·
shape public opinion;
·
undertake a supporting
function for municipal and county councils in the development of local
strategies;
·
initiate methods
development and research;
·
serve as the Government
spokesperson on drugs issues;
·
evaluate the action plan;
and
·
report regularly to the
Government (at least once a year).
Of the
SKR 325 million, 100 million (approximately $15 million Canadian)
has been allocated to a special drugs initiative within the Swedish Prison and
Probation Service. The goal is to offer care and treatment to all drug abusers
in this system. In addition, the National Prison and Probation Administration is
required to:
·
develop methods for
preventing drugs being brought into institutions and detention centres;
·
investigate the obstacles
to treatment outside institutions; and
·
produce special programmes
for contract care, i.e. care in accordance with a contract between the person
convicted and the community.
With
respect to the police, the National Police Board and the National Council for
Crime Prevention will be required to carry out their own review of police
efforts to combat drug-related crime.
In
Sweden, while the national policy is created at the national level, much of the
responsibility for implementing the goals of the action plan remains with the
municipalities. For example, they have responsibility for the care of drug
abusers pursuant to the Social Services
Act. In addition, prevention initiatives are also carried out at the local
level. Thus, strategies in municipalities will be based on local concerns.
Enforcement of the legislation remains at the national level, however, through
the police and customs services.
Treatment
is one of the three pillars of Sweden’s drug policy. One of the stated goals
of Swedish drug policy is to rehabilitate the user rather than to punish them by
way of the criminal justice system. Since 1982, it has been possible to force
people into drug treatment (also applies to alcohol and other products) for a
period of up to six months. The main reason for this type of treatment is to
protect the user or others in cases of life threatening situations and to
motivate the user to continue treatment on a voluntary basis. The use of
compulsory treatment appears to be uncommon and its effectiveness has been
questioned.[108] In the last several
years, there has been a shift from compulsory treatment and institutional
treatment towards out-patient treatment. It would appear, however, that
treatment is less easily available today than it was 10 to 15 years ago. In
addition, the time a user spends in treatment has shortened. These changes are
due to cutbacks in social service spending at the municipal level that occurred
in the 1990s. "Whereas in 1989 there were 19,000 people in treatment
centres (for both alcohol and drugs), in 1994 this number had dropped to 13,000.
In the same period, the number of people in compulsory care dropped from 1,500
to 900. Due to the budget cuts, 90 treatment homes were closed between 1991 to
1993."[109]
Methadone
substitution programs have been available in Sweden since the end of the 1960s.
Currently, approximately 600 people are involved in methadone substitution
programs in Stockholm, Uppsala, Malmo and Lund. The programs are strictly
regulated and are officially viewed as being experimental. Some of the
conditions for participation include that: the patient must be aged over 20 and
demonstrate at least four years of intravenous opiate abuse; he or she must have
tried several forms of drug-free treatment; the person in question must have
entered the program on a voluntary basis (for example, the person must not be
detained, under arrest, sentenced to a term of imprisonment or be an inmate of a
correctional facility). For those participating in methadone substitution
programs, other drugs are not permitted and the patient must visit the clinic on
a daily basis. At this time, the maximum number of people that may be in the
program at one time is 800. Pilot projects are under way with Subutex.
While
Sweden has spent large sums of money on treatment, few of its programs have been
properly evaluated. Therefore, it is difficult to provide details of their
effectiveness. "The official aim is
to rehabilitate drug addicts and a lot of effort and financial means are
allocated to achieve this; much more than in many other European countries.
However, despite all these good intentions, the reality is that the
effectiveness of these very expansive programmes is relatively low. In the long
run, the Swedish drug treatment programmes do not show better results than what
is found internationally."[110]
With
respect to harm reduction initiatives, there are few low threshold services in
Sweden and most are staffed by voluntary organizations. They offer a series of
services, but no prescriptions. Needle exchange programs are operated at clinics
for infectious diseases in hospitals in Lund and Malmo, and are thus fairly
limited. Harm reduction initiatives, such as needle exchange programs, are
difficult to promote under a vision of a drug-free society where drug use is not
accepted. A proposal in the late 1980s to introduce needle exchange programs
throughout Sweden was quashed by Parliament because it "was
felt that a higher availability of needles would not stop the spread of HIV, on
the contrary, it was thought to increase intravenous drug use."[111]
The
criminal justice system also plays a role with respect to treatment. In 2000,
more than 5,000 drug users were placed in prison. While in prison, offenders
have access to treatment programs for drug abuse and some offenders are
transferred outside prison for treatment. There are also initiatives to keep
drugs out of prisons, for example by conducting searches and urine tests. While
in prison, the offender is not offered syringes and substitution treatments are
not available.
Swedish
legislation allows, under certain conditions, that a sentence may be served
outside prison. The necessity of drug treatment is one of the reasons that is
often given. Another alternative to imprisonment is a probationary sentence
combined with institutional drug treatment. An example of an alternative to
prison is the following:
Since 1998, persons with drug
addiction problems who have committed a drug offence can access treatment
signing a ‘treatment contract.’ It is a real contract between the drug
addict and the Court in which the two parties have rights and obligations like
in all contracts. However, certain conditions must be fulfilled by the drug
addict: the person must need treatment and he must be motivated to undergo
treatment; he/she is a misuser of drugs; and the drug habit contributed to the
drugs crime, which should not be serious (less than 2 years foreseen as
penalty). The person is not sent to prison and a personalised plan of treatment
is established. The health authorities are responsible for the treatment and
shall report to the local prison and probation administration and to the public
prosecutor if the probationer seriously neglects the obligations stated in the
personal plan. [112]
With
respect to prevention, drug education programs start early and regularly appear
throughout the school curriculum. "Without
exaggeration, this opinion-forming could be described as a process of
indoctrination. Considering the magnitude of these programmes, the contents of
them have gradually become something indisputable and conclusive that one
incorporates them into one’s own value system."[113]
With
respect to cannabis, it is viewed as a dangerous drug "and
its use is regarded as the beginning of a career in drugs."[114]
This is one of the reasons that prevention measures pay specific attention
to cannabis as this should lead to less experimenting with the drug and thus
prevent new recruits from joining the drug scene.
Legislative
framework
Classes of drugs
The main
drug legislation in Sweden is the Narcotic
Drugs Criminal Act 1968. The term "narcotic drugs" is defined in
section 8. They include medicinal products or substances hazardous to health
with addictive properties and which are subject to control under an
international agreement to which Sweden is a party or which the government has
declared to be ‘narcotic drugs’ within the meaning of the Act. No
distinction is made between soft and hard drugs. As will be discussed later, the
nature of the substance is, however, among the criteria to determine the
seriousness of an offence. Narcotic drugs are set out in five lists. List I
deals with illegal drugs without medical use; lists II to IV deal with narcotic
substances with medical usage and regulation of its import/export; and list V
deals with narcotic substances outside international controls. Pursuant to the
legislation, narcotic medicines may only be supplied on prescription from a
doctor, dentist or veterinarian.
Offences
In
Sweden, almost all forms of involvement with narcotics are prohibited pursuant
to the Narcotic Drugs Criminal Act.
This Act lists the behaviours and practices which constitute drug offences and
includes possession for personal use, supply (which is fairly broadly defined),
manufacture, etc. Even consumption (drug use) has been prohibited since 1988. In
this case, "it is not addiction which
is a criminal offence according to this law, but the act of adding a drug to the
human body."[115]
The police are entitled to conduct urine or blood tests in the case of
people suspected of having used drugs.
The Smuggling
Criminal Act 2000 regulates illegal import and export of drugs. Other
relevant legislation includes: the Doping
Criminal Act 1991 which regulates the importation, supply, possession of
performance enhancing drugs for example; the Act
on Prohibition of Certain Substances which are Dangerous to the Health 1999
which regulates possession and supply of substances that entail danger to life
or health and are being used, or can be used, for the purpose of intoxication
– this legislation does not regulate substances regulated by other Acts.
The
other relevant laws are: the Social
Service Act 1980, which
covers the possible forms of care for drug users; the Act
on the Forced Treatment of Abusers, which provides that an addict who is
dangerous to himself or to others may be ordered by a court to undergo
compulsory treatment (which involves deprivation of liberty for up to six months
for adults and even longer for those up to the age of 20). Other legislation
deals with possible expulsion from school for students who abuse drugs,
revocation of a driving licence for drug addiction, etc. There is zero-tolerance
with respect to driving under the influence of drugs.
Penalties
Punishment
is determined by rules contained in the Swedish Penal Code. There are three degrees of penalties for drug offences:
minor, ordinary and serious. Penalties for minor drug offences consist of fines
or up to six months’ imprisonment, for ordinary drug offences, up to three
years, and for serious offences, two to ten years imprisonment. The penalties
regulated under the Smuggling Criminal Act,
are identical to the penalties listed above.
The
seriousness of the offence is based on the nature and quantity of drugs and
other circumstances. The government has stated that the term "minor drug
offence" is to be reserved for the very mildest of offences. For example,
it should generally only involve personal use or possession for personal use of
very small amounts. In these cases, a fine may be warranted. The fine is based
on the offender’s income. Minor offences involve: amphetamine up to 6 g,
cannabis up to 50 g, cocaine up to 0.5 g and heroin up to 0.39 g; ordinary
offences involve: amphetamine from 6.1 g to 250 g, cannabis from 51 g to 2 kg,
cocaine from 0.6 g to 50 g and heroin from .04 g to 25 g; and serious offences
involve: amphetamine 250 g or more, cannabis 2 kg or more, cocaine 51 g or more
and heroin 25 g or more. The trafficking of drugs generally leads to
imprisonment.
With
respect to smuggling, the determination of the seriousness of the offence
considers whether it formed part of an activity pursued on a large scale or on a
commercial basis, involved particularly large quantities of drugs or was
otherwise of a particularly dangerous or ruthless nature.
In 1996,
of the 5,862 people sentenced for drug-related offences, 3,760 were sentenced
for minor offences, 1,708 for ordinary offences and 391 for serious offences. Of
the 1,274 who were sentenced to imprisonment, 54 were for minor offences, 893
for ordinary offences and 326 for serious offences.[116]
As in
other countries, there are several alternatives to imprisonment. For example,
the court can choose other sanctions including probation, conditional sentence
or compulsory treatment. These sanctions appear to be used frequently in drug
cases.[117]
Generally
a drug addict who is found guilty of any type of crime can in certain
circumstances be ordered to undergo detoxification treatment. Treatment can take
place in conjunction with a prison sentence or else together with probation, a
conditional sentence or conditional release from prison. The consent of a
convicted person to undergo treatment under certain conditions may constitute a
reason for ordering probation instead of imprisonment (so-called contract
treatment). In
practice, probation and conditional sentencing in connection with compulsory
treatment are usually used for drug offences of normal
severity, that is in cases where imprisonment would otherwise be imposed.[118]
Swedish
legislation also allows for the forfeiture of any drugs used in the commission
of an offence, any gains made, the property used as an aid in an offence, etc.
Prosecutorial discretion
The
prosecutor has an absolute duty to prosecute, but there are a number of
exceptions. In the Circular of the Prosecutor-General on Certain Questions
regarding the Handling of Narcotics Cases, the Prosecutor-General stated that
the dropping of prosecutions for narcotic drug offences should be limited to
cases involving only possession for personal use of indivisible amounts or
corresponding to at most a roll-up of cannabis resin or a dose of some stimulant
of the central nervous system, with the exception of cocaine, i.e. such a small
amount of a narcotic substance that it would not normally be further divided and
sold. Having regard to the difficulties in individual cases of determining the
magnitude of this quantity, prosecutions should go ahead in cases of doubt. If
circumstances give grounds for assuming that the possession, despite the small
amount, is not intended for personal use, the prosecution should not be dropped.
As a consequence of these remarks, prosecutions should also not be dropped where
an abuser is found in possession of narcotic drugs amounting to personal use for
a certain period. In addition, it is of great importance that the dropping of
prosecutions should be mainly limited to occurrences of the nature of first
offences.[119]
Debate
in Sweden
The
Swedish vision of a drug-free society is so widely accepted that it is not
questioned in the political arena or the media. The drug policy has support from
all political parties and, according to the opinion surveys, the restrictive
approach receives broad support from the public. For example, a survey in 2001
revealed that 96% were opposed to legalizing any drug that is classified. In
addition, another survey in 2000 revealed that 91% were against decriminalizing
cannabis use.[120]
The role of public opinion is
central to understanding the attitude of the different political parties.
Opinion polls show that a large majority of the people subscribe to a
restrictive drug policy. The same polls indicate that drugs are perceived as one
of society’s main social problems. The moral panic surrounding drugs is such,
that no political party dares to speak out against any measures that may appear
to move in the direction of a more liberal drug policy. Supporting the
restrictive policy, or even asking for more restrictive measures to curb
increase in the drug problem are essential for a political party to win votes.
Saying the contrary, to back a more liberal approach, is not an option for a
political party and would almost mean its political death. It has been pointed
out that anti-drug pressure groups have been the driving forces behind
influencing public opinion, and through them the political parties. It has also
been shown that besides the social movements, the media have also contributed to
the drug scare that exists today and the defining of drugs as a major social
problem. [121]
Thus,
the Swedish population in general has a negative view of drug use and is
convinced that drugs pose a major threat to society. These themes have been
advanced by government, the media and other organizations in Sweden, and others
do not often criticize them. Scientists are generally the only group that raises
doubts with respect to the current policy.
Recent reports
In 1998,
the government created a Commission on Narcotic Drugs. Its mandate was to
evaluate Sweden’s drug policy and to propose, within the concept of a
restrictive drug policy, measures for its strengthening and streamlining. The
Commission was not to deviate from the overall aim of a drug-free society. The
terms of reference were to:
·
propose improvements of
methods and systems to assess the drug situation and to evaluate the goal of a
drug-free society;
·
evaluate and propose
measures to strengthen and streamline drug prevention measures;
·
analyse the development of
treatment programmes, including those in the prison and probation system, and
propose measures to improve treatment and rehabilitation of drug abusers;
·
evaluate the extent and
focus of national funds for the development of treatment and of measures to
prevent drug-related crime,
·
analyse the need for
changes in the working methods in the judicial system and in penal and criminal
procedural legislation;
·
review existing research,
propose how research can be stimulated, strengthened and organized and identify
important but neglected areas for research in the drug field;
·
frame strategies for
targeted information measures and for the formation of opinion.
The
Commission recently published a report entitled The Crossroads (referring to one direction that calls for a
significant increase of resources in the form of commitment, direction,
competence and funding and another that implies a lowering of goals and
considerable acceptance of drug abuse).
The
Commission noted that the drugs issue was not a political priority in recent
years. This situation has led to reduced funding for all sectors involved, while
the drug problem has become more severe and widespread. The following are some
of the Commission’s main findings and recommendations.[122]
Leadership:
The Commission noted that there is a need for stronger priorization, clearer
control and better follow-up of drug policy and of concrete initiatives at all
levels of government.
Demand
reduction: The
Commission noted that there are no hard boundaries between preventive measures,
care and treatment, and the restriction of supply. For preventive measures to
succeed, they must be "included in a
system of measures restricting availability, and there must be clear rules which
include society’s norms and values, as well as effective care and treatment."[123]
The Commission viewed care and treatment as an essential element of drug policy
measures as they help reduce drug abuse and also the harm to drug abusers. In
addition, the Commission found a need for improving the competence of those in
the field of care and treatment. It set out the following guiding principles
regarding care and treatment:
·
all drug abusers shall be
reached by an offer of help and, if necessary, the abuse treated.
·
advice, support and
assistance shall reach people at an early stage of abuse.
·
measures of care shall be
aimed at achieving a life free from substance abuse and illegal drugs.
·
care and other measures on
behalf of substance abusers shall be of good quality.
·
measures to combat
substance abuse shall be sustainable and long-term.
Supply
reduction: The
Commission did not find any real deficiencies in the legislation or the working
methods used by drug authorities, although it was vital that these authorities
be allocated more resources. Police and customs have not gained control over the
illegal market. In fact, indicators show that supply is more generous, prices
are lower than in the past and the variety of drugs has expanded. With respect
to combating illegal drug trade, the Commission recommended that the
organizational structure of the police be examined (for example, the way in
which the dissolution of specialized drug squads has affected the quality of
police investigations) and that any shortcomings be followed up. The Commission
also recommended that special investigation methods (such as controlled
deliveries) be reviewed and that the findings lead to the drafting of guidelines
on the subject.
Competence
development and research:
Competence development and research: The Commission was of the view that it was
important to improve knowledge concerning different aspects of narcotic drugs,
measures used to combat drug abuse and the effect of drug policy.
Costs[124]
As in
other countries, systematic figures on drug-related costs are not readily
available.
Public costs
Treatment
for alcohol and drug abuse has been estimated to cost municipalities SKR 3.7 billion
(over $500 million Canadian) per year (55% of which is for institutional
care). The police used 6% of its budget to combat drugs during 2000 (for a total
of SKR 702 million–over $100 million Canadian). The police had 869
people involved in drug issues while customs had 1,080 involved in border
defence. No costs were available for customs.
Social costs
The
Commission on Narcotic Drugs estimated the social costs at SKR 7.7 billion
per year (does not take into account prevention, training and evaluation).
Administration[125]
As
discussed above, the coordinator will now be responsible for coordinating the
national drug policy. In the past, this role had been played by the Ministry of
Health and Social Affairs. With respect to the legal distribution of narcotic
drugs and psychotropic substances, the Medical Products Agency is responsible
for issuing authorizations for the import and export of drugs. This Agency also
provides drug related statistics to the UNDCP.
The
Swedish National Police have responsibility for drug enforcement. The Drug
Offences Division of the National Police Board conducts criminal investigations
in relation to organized crime, or other drug-related offences, on a national or
international scale. The Swedish Customs Service is responsible for points of
entry.
The
National Institute of Public Health coordinates demand reduction activities. It
is also the National Focal Point in the REITOX network. Operational activities
are coordinated at the regional and municipal level. There is also local
coordination with the participation of social services, the police, prison and
probation services, medical services, schools and other concerned parties. Thus,
in prevention and care and treatment, local groups and municipalities play a key
role.
Because
of its encompassing nature, the drug issue also involves many other ministries,
for example the Ministry of Justice and the Ministry of Foreign Affairs.
Statistics
Use[126]
Pursuant
to surveys among youths in the 9th grade (15-year-olds) and among
18-year-old military conscripts, an obvious trend seen in the 1990s was the
increase in lifetime prevalence use of drugs among teenagers, particularly older
teenagers. There was also been an increase in recent use (last year, last 30
days) among teenagers and younger adults. For example, the percentage of 15 year
olds who had tried drugs rose from 4% to 9% from 1992 to 2000. It is interesting
to note that the number was 14% in the beginning of the 1970s and had decreased
to around 8% in 1982. With respect to military conscripts, the trend was
similar. According to these surveys, consumption of illegal drugs was low
compared to other European countries, although the trend pointed to an increase
in use. It should be noted that these numbers have been criticized. First, they
are applicable to only 15-16 year old students and 18-year-old conscripts. Thus,
these prevalence rates did not consider older groups where some first-time
experimentation with drugs will occur. In addition, it has been argued that drug
use is under-reported when drugs are viewed in such a negative light and the
questionnaires are filled out at school (where some will feel they are being
observed by their teachers).[127]
In 2000,
the running three-year average of lifetime prevalence for the 15-64 age group
was 12% (with the highest at 17% for the 24-44 age group). Since 1988, last year
prevalence has never been over 1%. Overall, males are twice as likely to have
used drugs than females although the difference is not as high in lower age
groups.
Most who
have experimented with drugs have tried cannabis, and the majority of these have
tried only cannabis (in Sweden, cannabis is usually taken in the form of
hashish). The second most popular drug in Sweden are amphetamines. Cocaine would
be the third most popular drug for older people, while for youths it would be
ecstasy and LSD. During the 1990s, the availability of drugs increased, in
particular amphetamine and heroin. It would appear, however, that heroin use is
on the increase in Sweden.
In
general, the surveys indicate that overall drug use is fairly low in Sweden.
With respect to severe drug abusers (defined as intravenous or daily drug use),
it would appear that Sweden has a fairly serious problem with a range of between
14,000 and 20,000 people in this class. This is close to the European Union
average.[128]
Offences
The
number of suspected people reported increased from 6,567 in 1985 to 12,470 in
1999. The police registered 32,423 violations of the Narcotic Drugs Criminal Act in 2000, a figure which is similar to
the numbers in the previous decade. The number of violations to the Goods
Smuggling Act has decreased by 85% since 1980, to 350.
In
1998, 92% of these offenders were suspected for use or possession (from 76% in
1975). In addition, the number of those suspected of selling or manufacturing is
now 19% (from 40% in 1975).
The
number of sentences for violations of the Narcotic
Drugs Criminal Act or the Goods
Smuggling Act was 12,470 in 1999 (up from 2,601 in 1975). Cannabis was
involved in 51% of sentences in 1998. In 1998, the sentences were divided in the
following fashion: 38% were fines; 27% were prison terms; 14% were prosecution
waivers; 14% were probation; and, 8%, other sanctions. Imprisonment was
generally from two to six months.[129]
Switzerland[130]
Switzerland's
drug policy has attracted considerable attention in recent years. As a result of
widely distributed pictures of the open drug scene in Zurich, the country's
injection clinics and heroin prescriptions for drug “addicts” are now known
around the world. More recently, Switzerland's Parliament introduced a bill to
regulate the production and sale of cannabis, and that bill is currently under
study.
Switzerland
is a Confederation[131]
consisting of 26 cantons
and half-cantons and has a population of slightly more than seven million
inhabitants. The cantons are currently subdivided into 2,904 political
communes. The federal Constitution, which was passed in 1848, is the legal basis
of the federal state. It guarantees the fundamental rights of individuals and
the people's participation in the country's political life, divides
jurisdictions between the Confederation and the cantons and defines the powers
of the federal authorities. Switzerland is made up of various linguistic, ethnic
and denominational communities. Under Article 4 of the Constitution,
German, French, Italian and Romansch are the country's four national languages.
German is the language spoken by the majority of Swiss (63.7 per cent). All
the cantons have their own constitution, parliament, government and courts. The
cantons have certain legislative powers which have been conferred on them by the
federal Constitution.
Switzerland's
political structure is important to our understanding of that country's drug
policy. In fact, some writers[132]
argue that there are in fact 26 drugs policies in Switzerland, one for each
canton and half-canton. This diversity is often overlooked, since the media and
drug literature have focused in particular on the "open drug scenes"
in Zurich and on the medical prescription of heroin for severally dependent
persons, a practice endorsed by the Swiss Confederation.[133]
A
harm reduction policy
The
recent history of Switzerland’s drug policy began towards the end of the 1960s
with the increase in psychoactive drug use. As a result, the cantons developed a
first drug policy, which was based on three pillars, namely:
·
the repression
of drug use and trafficking;
·
prevention
measures aimed at young people;
·
treatment based
on abstinence, which at the time already included methadone programs.[134]
At the
beginning of the 1980s, the HIV-AIDS epidemic hit many countries, including
Switzerland. There were "open drug scenes" in several Swiss cities,
such as Zurich, Bern, Olten and Solothurn. As a consequence, the miserable state
of drug dependent persons was becoming increasingly visible contributing to
growing concern over the situation. Public and social services were created to
help the “addicts” and protect them against HIV and AIDS. Needle exchange
programs were set up and “addicts” were encouraged to be vaccinated against
hepatitis. The Swiss Federal Office of Public Health (SFOPH) supported many of
these services and still does so today, arguing that they help prevent the
spread of AIDS. However, the main pillars of Switzerland’s official drug
policy remained prevention, treatment and law enforcement.
In the
1990s, Switzerland introduced new measures to reduce the problems associated
with drug use and adopted a new national drug strategy. The new strategy
introduced another pillar, namely harm reduction, which led to the creation of a
four-pillar approach. The role of the Confederation in the area of drug policy
becomes more defined and aims to support the efforts made by cantons, cities and
communes and by private organizations by providing them with reference material,
scientific data and training for professionals.
On
February 20, 1991, the Swiss government adopted a program of federal measures to
reduce the problems related to drug use,[135]
currently known as "ProMeDro,"[136]
and which was based on the concept of harm reduction. The objectives of the
program were as follows:
·
to decrease the
number of new drug users and to prevent people from becoming drug dependent;
·
to help users
overcome their addiction (through treatment and social reintegration);
·
to improve the
living conditions and the health of drug users, to reduce harm and to maintain
their social integration.[137]
To
achieve these goals, the following measures were introduced:
·
primary and
secondary prevention measures aimed at young people and awareness campaigns to
prevent them from experimenting with drugs;
·
patient
management and treatment to help users overcome their addiction;
·
harm reduction,
AIDS prevention and social reintegration measures to help addicts cope with
their dependency in the best possible health conditions and to ensure that the
door to a drug-free life remains open;
·
ongoing
training and development programs for professionals (including those working in
the areas of sentencing, programs and social services, as well as hospital
workers, pharmacists and family doctors) and for people acting as mediators
(such as teachers, youth group facilitators, business personnel and parents);
·
the
development, co-ordination and regular publication of scientific research on
drugs;
·
the evaluation
of projects and measures in the fields of prevention, patient management and
treatment to help identify any gaps or shortcomings, but also to pinpoint and
highlight any progress achieved;
·
the development
of new documentation and information services normally provided by the Swiss
Confederation; and
·
the
co-ordination of measures adopted by the Confederation.
These
measures mark the beginning of Switzerland’s drug policy, based on a
four-pillar approach: prevention, law enforcement, treatment and harm reduction.
Between 1991 and 1999, the SFOPH initiated and/or supported approximately 300
projects and programs under the "ProMeDro" initiative at the cost of
15 million francs per year.
Among
other activities, the Federal Council asked for a study on heroin-assisted
treatment for severely dependent heroin addicts who had failed at other
treatment programs. In 1992, the Council passed an order authorizing clinical
trials with the medical prescription of heroin, along with a strict scientific
evaluation of the trials. The trials began in 1994 and ended on December 31,
1996. The final evaluation report was published in July 1997 and concluded that:
·
heroin-assisted
treatment for severely dependent heroin addicts improved their physical and/or
psychic health, as well as their quality of life (in terms of housing, work and
other areas);
·
participants’
illegal use of heroin and cocaine decreased;
·
the users
involved in the program committed fewer crimes (the incidence of theft and
property and drug trafficking offences fell sharply).[138]
The
Federal Council followed the report’s recommendations, and on March 8, 1999,
passed the Ordinance governing the medical
prescription of heroin authorizing heroin assisted treatment, setting
objectives, eligibility criteria, administrative measures and providing for such
treatment.
Over the
same period in 1993 and 1994, two people’s initiatives were presented with
opposite objectives. The first initiative called for a strict,
abstinence-oriented drug policy ("Youth Without Drugs"),[139]
and the second proposed the legalization of drug use ("DroLeg").[140]
The federal government and Parliament found both initiatives too extreme
and recommended their rejection. On September 28, 1997, Swiss voters rejected
the initiative "Youth Without Drugs" by a majority of over 70%. On
November 29, 1998, Swiss voters rejected the "DroLeg" initiative with
a majority of over 74%. By rejecting both initiatives, the Swiss population
showed its massive support for the Confederation’s more measured approach to
drug policy.
Between
the time that these popular initiatives were launched and subsequently voted
down, some major events influenced the evolution of Swiss drug policy. In 1994,
the violence occurring on the "open drug scenes," from Letten to
Zurich, made headlines in the international media. Certain government parties
(Socialist, Christian Democrat and Radical) clamoured for decriminalization of
drug use, increased access to heroin-assisted treatment, stronger prevention
measures and stiffer sentences for drug traffickers.[141]
The open drug scene in Zurich was shut down in 1995,[142]
resulting in new co-operation between the Federal Council, canton
representatives and the city of Zurich. A joint task force, called the Drug
Delegation, was established. This unusual co-operation made it possible to
implement measures that would never have got off the ground under more
traditional circumstances: the creation of prison spaces in Zurich for drug
traffickers, the adoption of emergency federal measures allowing for more drug
addicts to participate in heroin-assisted treatment and the creation of centres
for the treatment of hard core users.[143]
Today the "open drug scenes" are a thing of the past.
Finally,
in October 1998, the program of federal measures to reduce the problems related
to drug use (ProMeDro) was renewed for a four-year period. The Confederation set
a budget of 18 million francs per year to run this program and staffed it
with 15 positions from the Federal Office of Public Health.[144]
The main priorities for ProMeDro from 1998 to 2002 are as follows:
·
to strengthen
the Confederation’s commitment to primary and secondary prevention and early
intervention to prevent addiction;
·
to consolidate
the range of treatments in a co-ordinated system, thereby increasing the
likelihood that addiction can be overcome;
·
to consolidate
harm reduction and social integration measures;
·
to establish
and operate effectively a national epidemiological monitoring centre based on
the focal points REITOX model of the European Monitoring Centre for Drugs and
Drug Addiction;[145]
·
to forward, in
an effective manner, the findings of epidemiological studies, scientific
research and evaluations to experts and decision makers;
·
to implement a
process to foster quality management throughout the entire ProMeDro program,
tailored to the needs of the different fields, useful to and used by more than
half of the addiction agencies and decision makers concerned (Confederation,
cantons, communes, private institutions);
·
to ensure
optimum co-ordination and organization for various commissions and forums,
mainly for the Conference of Canton Delegates on Drug Addiction Problems and the
National Drug Liaison Committee.[146], [147]
The
Confederation has thus set itself up as a political hub for drug policy and
national co-operation
First pillar: prevention
Prevention
measures are aimed primarily at achieving three objectives:
·
to prevent drug
use among individuals, especially children and youth;
·
to prevent the
problems and harmful effects related to drug use from spilling over onto the
individual and society;
·
to prevent
individuals from going from casual drug use to harmful use and addiction, with
all of its known consequences.
It
should be pointed out that the most notable change in prevention has been a
transition from the concept that prevention was a matter of preventing someone
from ever trying drugs to today’s concept of preventing the health and social
problems related to drug use, thereby integrating the person’s social network
and environment as well.
Second pillar: treatment
In
Switzerland, there are many types of in-patient and out-patient treatment
available to people suffering from drug addiction. The objectives sought through
treatment include:
·
breaking drug
“addicts” of their habit;
·
social
reintegration;
·
better physical
and mental health.[148]
As
mentioned earlier, heroin assisted treatment has been a recognized type of
therapy in Switzerland since 1999. By the end of 1999, there were already 1,650
treatment spaces reserved for hard-core heroin dependent persons in 16 treatment
centres. In addition, during the same period, approximately 50% of opiate
addicts (estimated to be 30,000) were being treated with medically prescribed
methadone, compared to 728 individuals who were receiving this type of therapy
in 1979. Those individuals addicted to one or more drugs also have access to
in-patient treatment based on abstinence, to a limited number of spaces in
transition centres, specialized withdrawal units or clinics, and treatment
institutions, as well as out-patient consultation centres.[149]
In March 1999, there were 100 institutions providing in-patient withdrawal and
rehabilitation treatment in Switzerland, for a total of 1,750 spaces.[150]
Third pillar: harm
reduction
The
first so-called "low threshold" coping skills institutions made their
appearance in Switzerland in the mid 80s. Their purpose was to reduce the health
and social risks and consequences of addiction. First and foremost, these
institutions gave drug dependent persons a roof over their heads and were often
equipped with cafeterias, showers and laundry facilities. They provided addicts
with someone who would listen and talk to them. These facilities have evolved
over the past ten years and now incorporate medical support for harm reduction
(for example, prevention of AIDS and other infections, needle exchange,
out-patient medical care, etc.) and social support (street work, soup kitchens,
emergency shelters, low threshold centres, etc.). The Swiss Federal Office of
Public Health supports many harm reduction projects as part of ProMeDro. Such
projects include:
·
needle
exchanges for drug addicts and inmates;
·
injection sites
(a statutory notice makes such sites legal);
·
offers of
employment and housing;
·
support for
women who prostitute themselves to buy drugs;
·
consultation
services for the children of drug-addicted parents.[151]
Furthermore,
the cantons, communes and private institutions also provide such programs. In
1995, the SFOPH established a central service to support certain social
assistance agencies, particularly those with low thresholds, and to advise the
cantons, communes and private institutions on planning and funding harm
reduction programs. Drug “addicts” have access to such programs without
having to meet any particular prerequisites. The objective of these harm
reduction services is to limit as much as possible the negative consequences of
addiction so that the “addict” is able to resume a normal existence. In
addition, these measures are aimed at safeguarding and even increasing the
addict’s chances of breaking the drug habit.[152]
Fourth pillar:
enforcement
The
primary goal of enforcement is to reduce supply and to fight the trafficking of
narcotics, the illegal financial transactions related to such trafficking (for
example, money laundering) and organized crime. Users are not the number one
target of police operations in Switzerland. Enforcement of the federal Narcotics
Act is, to a large extent, the responsibility of the cantons, although the
Confederation does monitor the situation closely and can call for and carry out
police investigations into drug trafficking. It should be noted that canton and
commune laws on policing differ and sometimes result in varying interventions.
Furthermore, the drug milieu changes quickly and the methods used to fight
drug-related problems are improving and adapting to this milieu.[153]
These methods include:
·
focussing
enforcement activities on the manufacturing of drugs, trafficking and money
laundering;
·
assigning more
officers to the "drug police" and making greater use of specialists
from other sectors (finance professionals);
·
intercantonal
and international cooperation (agreements with police forces from neighbouring
countries);
·
accelerating
and improving the processing of information (networking systems and access to
the police department networks from many European countries);
·
improving
cooperation between the police and the private sector (banks, chemical
industries, etc.);
·
improving
police effectiveness and making greater use of front-line liaison workers;
·
strengthening
the legal structure (for example, policing legislation, witness protection).[154]
The
legal framework
Narcotics
legislation in Switzerland has, as is the case in many other countries, been
closely tied to the evolution of international conventions. For instance, the
1924 Narcotics Act was implemented to
enable Switzerland to fulfil the commitments it had made by signing the
International Opium Convention of 1912. This law prohibited certain narcotics
such as opium, coca leaves, morphine, heroin, cocaine and their derivatives. As
a result of Switzerland's signing other conventions and of experience gained
from enforcing the 1924 Act, the
federal Narcotics Act was totally
revamped and a new law adopted on October 3, 1951. This legislation prohibited
the growing, manufacture, sale, distribution and possession of opiates, coca
derivatives and cannabis. The purpose of the Act was, on the one hand, to regulate the use of narcotics for
medical purposes and, on the other hand, to fight against both the abuse and
illicit trafficking of narcotics. The Act
was amended slightly in 1970 when Switzerland signed the Single Convention on
Narcotic Drugs of 1961.
Indeed,
up until the 1960s, the Act was
primarily a response to Switzerland’s commitments under international
conventions because narcotic use was relatively marginal and there was not any
real narcotics abuse problem per se to warrant specialized legislation.
Moreover, the Federal Council had recognized as early as 1951 that drug
addiction was a serious pathology that should not be prosecuted as a crime or an
offence. When drug-related problems emerged in the early 1970s, the Act
was revised in 1975 to provide for medico-social and assistance measures for
drug addicts, differentiated punishment for drug use and tougher criminal
provisions for illegal drug trafficking.[155]
Following
Switzerland’s accession to the 1971 UN Convention on Psychotropic Substances,
the 1972 amendment to the Single Convention and the adoption of the 1988
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
(Switzerland has not yet ratified this convention), the Narcotics
Act was revised in 1996 to provide for the control of narcotic raw
materials. Since then, dependence-producing substances and preparations with
morphine-, cocaine- or cannabis-like effects have been considered narcotics
under this legislation (Narcotics Act,
s. 1).[156]
The list of substances is currently compiled by the Swiss Agency for
Therapeutic Products.[157]
With
respect to the production, distribution, acquisition and use of narcotics, the
current legislation provides that narcotics and psychotropic substances cannot
be cultivated, manufactured, prepared or sold without cantonal authorization, in
accordance with conditions set by the Federal Council (Narcotics Act, s. 4). In addition, a special permit from the Federal
Office of Public Health is required for the importation or exportation of
controlled narcotics (Narcotics Act,
s. 5). Furthermore, under section 8 of the Narcotics
Act, the following narcotics cannot be cultivated, imported, manufactured or
sold: smoking opium, heroin, hallucinogens (such as LSD) and hemp for the
extraction of narcotics or hash. Section 8 also sets out the conditions
governing the treatment of addicts with medical prescription of certain
narcotics.
The
current legislation also contains criminal provisions that apply to: anyone who
unlawfully cultivates, manufactures, extracts, processes or prepares narcotics;
anyone who, unless authorized, stores, ships, transports, imports, exports,
provides, distributes, sells, etc., or buys, holds, possesses or otherwise
acquires narcotics; and anyone who finances illicit traffic in narcotics, acts
as an intermediary or encourages consumption (Narcotics Act, s. 19). Section 19 offenders are liable to
imprisonment or a fine depending on the seriousness, according to the Narcotics
Act, of the act committed. The intentional consumption of narcotics or the
commission of a section 19 offence for personal use is punishable by detention
or a fine (Narcotics Act, s. 19a). For petty offences, the appropriate
authority may stay the proceedings or waive punishment and may issue a reprimand
(Narcotics Act, s. 19a(2)). However,
preparing narcotics for personal use or for shared use with others at no charge
is not punishable where the quantities involved are minimal (Narcotics
Act, s. 19b). Finally, anyone who persuades or attempts to persuade someone
to use narcotics is also punishable by detention or a fine (Narcotics
Act, s. 19c).
A
bill to decriminalize cannabis[158]
The
Swiss Federal Council recently submitted a major bill to Parliament, the cantons
and the public for a fundamental revision of the Narcotics Act. That
bill, which is set to go through the various stages of canton and national
consultation, is based on the observation, similar to our own findings, that:
(…)
with regard to cannabis, the gap is too great between the actual situation, the
statutory provisions and their implementation. As the Federal Commission on Drug
Issues states in its report on cannabis, the prohibitionist system does not
prevent cannabis use and cannabis users no longer tend to consider themselves
drug users. The risks that cannabis represents for public health must be
assessed differently from the way the legislator did it in 1975.
At
the time, cannabis was considered a gateway drug. It was felt that the
pharmacological properties of cannabis led young cannabis users to opiate or
amphetamine use. That view was refuted with the 1989 report of the
Sub-commission of the Federal Commission on Narcotics.
The
most recent research supports current findings that the effects of cannabis are
less hazardous to health than the effects of alcoholism or tobacco abuse. (…)
(…)
The
number of users of cannabis derivatives has increased. In 1992, according to the
Swiss Health Survey of the Federal Statistics Office, 16.3 per cent of
young Swiss citizens aged 15 to 35 said they had previously used hash at least
once in their lives. In 1997, 26.7 per cent gave the same answer. All OECD
countries have observed the same trend. In the United States, for example, the
life prevalence of cannabis use in individuals 18 years of age increased
from 32.6 per cent in 1992 to 49.6 per cent in 1997. [159]
The
cannabis revision bill is also based on the observation, in which we wholeheartedly concur, that "the available scientific literature establishes no relationship between
severity of legislation and life prevalence of cannabis use."[160]
It further emphasizes that:
The
weaknesses of the present act are apparent when it comes to fighting the
cultivation of hemp used to produce narcotics and the production and sale of
cannabis-based products. Enforcing the act in this area is a highly
heterogeneous and costly enterprise; the result is a large market that is very
difficult to control and has expanded beyond our borders. Moreover, the need to
revise statutory provisions in this area is virtually undisputed. [161]
The
purpose of the revision of the act is thus, in particular, to:
·
adapt the Act
to the actual situation;
·
decriminalize
cannabis use and acts leading thereto;
·
reinforce youth
protection;
·
regulate the
cultivation, manufacture and trafficking of cannabis;
·
restrict the
obligation to prosecute;
·
reinforce
repression in certain areas in a targeted manner.[162]
More
specifically, the bill would provide (art. 19c) for the decriminalization
of the use of cannabis-related products. In addition, preparatory acts to
personal use of cannabis-related products would be decriminalized if committed
without affording a third party the opportunity to use drugs. While the bill
does not set out specific limits on quantity–as it would be left to the courts
to determine whether it was related to personal consumption - the government
publication explaining the bill mentions that as a principle, it does related to
personal consumption if the quantity does not exceed what is needed for weekly
use. In general, this would mean quantities of 30 grams for possession and
10 average-size plants for cultivation. The publication states that these
quantities would vary depending on the person, the way it is consumed, etc.[163]
Article 19d
would confer on the Federal Council the power – and not the obligation – to
determine priorities in criminal prosecutions. Under this power, the Federal
Council could, after consultations with the cantons, set out the conditions
under which the prosecution and criminalization of certain offences would be
waived, if they are conducted under the legal framework discussed in the next
paragraph.[164]
If the
Federal Council uses its power under article 19d, article 19f sets out
conditions under which the cultivation, production and distribution of cannabis
and its derivatives would be allowed. Distribution would not be prosecuted under
certain conditions: selling to persons under 18 years of age would not be
permitted; the product must not represent a significant risk to health; public
order must not be disturbed, advertising would be prohibited, etc. Producers
must also submit to a set of strict rules: they may produce solely for point of
sale located in Switzerland, notify authorities regarding all crops (species,
cultivation area, location, etc.), and specify THC levels. The Federal Council
can establish a series of rules such as size and lay out of cultivation areas,
the number of distribution centres, etc. In addition, cantons would be able to
set out more restrictive rules, particularly with respect to cultivated areas
and distribution centres.[165]
The
Council did request legal opinions on whether its proposals satisfied the three
international conventions.[166]
The two opinions concurred that the decriminilization of personal use and
related acts would not contravene international conventions. In addition, the
waiver of prosecution (or limitation of criminal prosecution) for cultivation,
production and distribution would also be consistent with the three conventions.
The Federal Council concludes in its Message that:
In
their essential points, the two legal opinions come to the same conclusions. The
only difference is in the matter of whether, in cases where a waiver of criminal
prosecution in matters pertaining to the cultivation of cannabis and the
manufacture and distribution of cannabis products would be introduced, the
provisions are sufficient or whether they should be supplemented by a licensing
system.
It
should be noted on this point that the Netherlands also has a partial limitation
on the obligation to prosecute in the areas referred to and that it has not
introduced a licensing system. Nevertheless, the principle of the Dutch system
has never been disputed as being inconsistent with the UN conventions.[167]
Administration
of Swiss drug policy
The
Confederation is the hub of Swiss drug policy and co‑ordination and
harmonization of the various policies and measures put in place by cantons,
cities, local authorities and private institutions. Under section 15c of the Narcotics
Act, the Confederation is responsible for the following tasks [translation]:
· Through grants or other measures, the Confederation shall encourage scientific research on the effects of narcotics, the causes and consequences of narcotics abuse and ways to combat that abuse.
· The Federal Council shall establish the procedures for awarding and calculating grants and shall determine grant amounts.
· The Confederation shall assist cantons and private organizations in the administration of the Act. The Confederation shall, inter alia, set up a documentation, information and co‑ordination office and encourage the training of staff specialized in the treatment of addicts?. The Federal Council shall establish the relevant procedures.
Under
section 15a of the Narcotics Act, the
cantons are responsible for the following tasks [translation]:
· To prevent narcotics abuse, the cantons shall promote information and consultation and set up the institutions needed to do so.
· The cantons shall provide for the protection of those in need of medical treatment or other assistance on account of narcotics abuse and shall assist their return to work and society.
· The appropriate authorities may delegate certain tasks and responsibilities to private organizations.
· The cantons may prohibit the acquisition of narcotics. They shall give notice of their decisions to the Federal Office of Public Health, which shall relay those decisions to health officials in the other cantons for the information of physicians and pharmacists.
· Prescribing, dispensing and administering narcotics for the treatment of addicts shall be subject to special cantonal authorization.
· Where, owing to addiction, a person might constitute a danger to traffic circulation, the service with knowledge of that danger shall advise the appropriate authority.
In
principle, the administration of the Narcotics
Act falls under cantonal jurisdiction, as the cantons have authority for
criminal procedure. There are usually a number of stages in cantonal criminal
proceedings: police investigation, preliminary hearing, dismissal or referral to
court and court decision. In minor cases punishable by fine or detention–and
this is the case for a number of offences under the Narcotics Act–a penalty can be imposed by an administrative
authority (for example, a prefect). The subject, however, is entitled to object
and be tried by a court, usually a police court composed of a single, legally
trained judge. Cases of moderate seriousness are usually tried by a district
court (correctional court) over which a legally trained judge presides, assisted
by lay judges. Finally, the most serious offences are heard by assize courts
made up of at least one legally trained presiding judge and a jury of citizens.
However, because this type of procedure is lengthy, elaborate and costly, most
cantons tend to replace assize courts with either district courts or a higher
court made up of permanent judges (criminal court).[168]
The
Confederation also plays a role in combating drug trafficking; under section 29
of the Narcotics Act, the Federal
Office of Police (FOP) is the central Swiss agency responsible for controlling
illicit traffic in narcotics. The FOP gathers information for the prevention of
offences under the Act and to
facilitate the prosecution of offenders. In order to do so, the Office maintains
contact with other federal government agencies involved (Office of Public
Health, Customs Administration, the Swiss Post Office administration, cantonal
police authorities, central agencies in other countries and the International
Criminal Police Organization (Interpol)). To its cantonal and international
partners, the FOP is a focal point for information, co‑ordination and
analysis in the area of Swiss internal security.[169]
Since 1996, after a trial period, the Office has operated a drug database
called DOSIS. This database is an invaluable tool for the cantons. Cantonal
narcotics squads are connected to the system and have direct access to DOSIS
because they are required, as is the FOP, to enter information into the
database. This system thus promotes co‑operation between the FOP and
cantonal police authorities. Only information on the illicit narcotics trade is
entered into the system; information on those who only use drugs is excluded.[170]
Statistics
on narcotics use and offences under the Narcotics Act
This
section summarizes parts of a Federal Office of Police publication entitled Situation
Suisse: Rapport de Situation 2000 [2000 Situation Report on Switzerland],[171]
prepared by the Analysis and Prevention Service as an interim document,
given that a comprehensive report is to be published in 2002. It should be noted
that the statistics in the report are distorted by methodological deficiencies.
Switzerland is a federal state with 26 cantonal entities (cantons and
half-cantons) and offences are not recorded based on the same criteria in every
canton. Furthermore, the statistics do not make it possible to control double or
multiple entries; some suspects may appear repeatedly in the same year or in
different cantons. Finally, only some of the criminal acts under the criminal
code are taken into account.[172]
Use
The
report found the following trends in 2000:
·
a sharp rise in
marijuana use;
·
a sharp rise in
cocaine use;
·
a sharp rise in
multiple addictions (use of various kinds of narcotics);
·
a sharp rise in
synthetic drug use (amphetamines and methamphetamines) – Thai pills[173]
have become the
"in" drug;
·
a downward
trend in injection heroin use;
·
virtually no
open drug scenes in Swiss cities;
·
205 deaths due
to drugs and recorded by the police (as compared to 405 in 1991) – those over
27 were the most affected age group, for men and for women, and Zurich and Bern
were the most affected cantons, with 50 and 36 deaths due to drugs,
respectively;
·
18- to
24-year-olds remain the most frequent users of marijuana, hash and
hallucinogens, while those over 30 are the most frequent users of cocaine and
heroin.[174]
Offences
Federal Narcotics
Act drug-related offences reported cases rose from 44,307 in 1999 to 46,558
in 2000. This represents a significant increase over the 18,800 reported cases
in 1990. A comparison of the number of reported cases per offence type in 1997
and 2000 reveals a downward trend in drug trafficking, smuggling, dual offences
and an overall increase – with the exception of 1999[175]
– in drug use cases.
The
number of reported cases of drug dealing in 2000 fell to 3,021 from 3,711 in
1999. This represented a drop of 18.5%. However, some cantons posted a major
hike in reported cases. A case in point was the city of Basel, which recorded an
increase of 31%. The report urges caution in interpreting these figures,
suggesting that the major drop in the number of reported cases is not in fact
due to an improved situation in these specific cantons, but rather to a decrease
in the number of cases reported by the police as investigation capacity and
officers are deployed in other areas. It should be noted that of a total of
3,021 drug trafficking cases, 78% involved foreigners and 22% Swiss citizens.
With respect to the sex of offenders, 82% were men and 7% were women. The sex of
the remaining 11% was unknown. The largest percentage (45%) of male offenders
were aged between 18 and 24, whereas the majority of female offenders were over
30 (56%), followed by the 18-to-24 age group (27%).[176]
Australia[177]
Cannabis was generally little known or used in Australia before the
1960s. However, the drug legislation that was passed in the majority of states
and territories in the late 1800s and early 1900s (mainly because of the large
number of Chinese who smoked opium) provided a framework that lent itself well
to the prohibition of cannabis. The first Australian measures designed to
control cannabis use were part of an act passed in 1928 in the state of Victoria
to penalize the unauthorized use of Indian hemp and Indian hemp resin. Similar
acts were subsequently passed in the other states of the Commonwealth. Penalties
for the cultivation, possession and use of cannabis were generally quite harsh
in the 1960s and 1970s.[178]
The incentive to revise the laws on cannabis use in South Australia came
from the recommendations made in 1979 in the Report of the South Australian Royal Commission into the Non-Medical Use
of Drugs.[179]
One of those recommendations was that small-scale cannabis use not be considered
a criminal offence. In support of that recommendation, the Royal Commission
cited a number of overseas states, including 10 American states, where such
a measure had yielded good results.
National
drug strategy[180]
The National Campaign
Against Drug Abuse (1985-1992)
The
inception of the National Campaign Against Drug Abuse (NCADA) in 1985 was a
watershed in Australian drug policy and introduced a focus on public health and
harm minimization. The NCADA emphasized that drug use should be treated
primarily as a health issue. The decision was made deliberately to situate the
program within the Federal Department of Health rather than the Federal Attorney
General’s Department, due at least in part to the emergence of HIV/AIDS. But
the program from the start involved a strong partnership between the
Commonwealth (or federal government), States and Territories. It also intended
to foster a partnership between health and law enforcement in a comprehensive
strategy involving an integrated approach to licit as well as illicit drugs.
The
philosophy of harm minimization includes the strategies of supply, demand and
harm reduction. The mission of Australia’s drug strategy is to improve health,
social and economic outcomes by preventing the uptake of harmful drug use and
reducing the harmful effects of licit and illicit drugs.
The National Drug
Strategy (1993-1997)
A
further principle underlying the new drug strategy was that reliable data, new
approaches and evaluation of effort were required. As part of this new effort,
the Ministerial Council on Drug Strategy (MCDS) commissioned two independent
evaluations of the NCADA to assess progress and make appropriate
recommendations. After these two evaluations, one released in 1988 and the
other, No Quick Fix, in 1992, the
campaign was relaunched as the National Drug Strategy (NDS). Incorporating the
recommendations from the two evaluations, the National Drug Strategy continued
to stress the importance of harm minimization principles. Some of the goals of
the Strategy were to:
·
Minimize the
level of illness, disease, injury and premature death associated with the use of
alcohol, tobacco, pharmaceutical and illicit drugs;
·
Minimize the
level and impact of criminal drug offences and other drug-related crime,
violence and antisocial behaviour within the community;
·
Minimize the
level of personal and social disruption, loss of quality of life, loss of
productivity and other economic costs associated with the inappropriate use of
alcohol and other drugs; and
·
Prevent the
spread of hepatitis, HIV/AIDS and other infectious diseases associated with the
unsafe injection of illicit drugs.
The
strategic plan identified six specific concepts which were to underpin the
development and implementation of drug policy: harm minimization; social
justice; maintenance of controls over the supply of drugs; an intersectoral
approach; international cooperation; and evaluation and accountability.
Overall
responsibility for the broad policy direction and operation of the NDS rests
with the MCDS, which comprises both health and law enforcement ministers from
each State and Territory as well as from the Commonwealth government. The
council meets annually. The National Drug Strategy Committee (NDSC) provides
administrative support for the MCDS. It is mandated to develop proposals for the
NDS, implement the NDS, develop policy proposals relating to licit and illicit
drugs and liaise with other governmental agencies on matters relating to the
NDS. It consists of one health and one law enforcement representative from each
jurisdiction. The MCDS and NDSC develop national policies and directions which
individual jurisdictions then implement as appropriate within their social,
political and economic environments.
Report on the National
Drug Strategy (1997)[181]
In 1997
a report evaluating the National Drug Strategy (1993-1997) was produced. This
report, entitled The National Drug
Strategy: Mapping the Future, lauded the NDS for a unique combination of
features which had brought it international attention and acclaim:
·
The NDS
recognizes the complexity of drug issues and the need to provide front-line
health professionals and others dealing with drug problems with a wide range of
options based on the concept of harm minimization. These range from
abstinence-oriented interventions to programs aimed at ameliorating the
consequences of drug use among those who cannot be reasonably expected to stop
using drugs at the present time;
·
The NDS adopts
a comprehensive approach to drugs, which encompasses the misuse of licit as well
as illicit drugs. Policies and programs to address the problems of illicit
drugs, alcohol, tobacco and pharmaceuticals all fall under the aegis of the NDS;
·
The NDS
approach to drugs stresses the promotion of partnerships–between health, law
enforcement, education, non-overnmental organizations, and private industry; and
·
The NDS
attempts to address drug issues in a balanced fashion. This refers to the
appropriate balance of effort between the Commonwealth, States and Territories,
a balance between supply and demand reduction strategies, and a balance between
treatment, prevention, research and education.
Contrary
to the fears of many that harm minimization policies might lead to increased
public acceptance and use of illicit drugs, the evaluation found that there was
no discernible trend in the use of drugs such as heroin, amphetamines and
cocaine, although there was some increase in marijuana use. The NDS was also
found to have contributed to the success of the National HIV/AIDS Strategy in
reducing the spread of HIV, Hepatitis C and other infectious diseases among
intravenous drug users.
The National Drug
Strategic Framework (1998/1999-2002/2003)[182]
The
National Drug Strategic Framework maintains the policy principles of the
previous phases of the National Drug Strategy and adopts the recommendations of
the report from the previous phase. Its focus remains on harm minimization and
continues to seek a balance between supply-reduction, demand-reduction and
harm-reduction strategies, emphasizing the need for integration of the various
strategies. It also continues the emphasis on evidence-based practice, based on
rigorous research and evaluation, including assessment of the cost-effectiveness
of interventions.
This
next phase of the NDS places emphasis on extending the partnership between
health and law-enforcement agencies to take in a broader range of partners, as
recommended in the evaluation report. Thus the Intergovernmental Committee on
Drugs, which consists of health and law enforcement officers from each
Australian jurisdiction, is expanding to include officers from the portfolios of
customs and education. The MCDS will now be supported by the Australian National
Council on Drugs, consisting of people with relevant expertise from the
government, non-government and community-based sectors to provide policy advice.
These bodies will develop a series of National Drug Action Plans which will
specify priorities for reducing the harm arising from the use of licit and
illicit drugs, strategies for taking action on these priorities, and performance
indicators.
The National Illicit Drug
Strategy (1998 – )[183]
In 1997,
the Australian government launched the National Illicit Drug Strategy
"Tough on Drugs" as the next major phase of the National Drug
Strategy. Its implementation began in 1998. The Strategy encompasses a range of
supply reduction and demand reduction measures at a total cost of AUD $516 million.
Funding for the Strategy is split between demand-reduction strategies, which are
being implemented by the Department of Health and Aged Care and the Department
of Education, Training and Youth Affairs, and supply-reduction strategies, which
are being implemented by the Attorney-General’s Department, the Australian
Federal Police and the Australian Customs Service. AUD$213 million has been
allocated for a range of supply reduction measures to intercept more illicit
drugs at borders and within Australia. Law enforcement efforts include funding
for 10 new Federal Police anti‑drug mobile strike teams to help dismantle
drug syndicates within Australia as well as increased funding for the Australian
Customs Service to enhance its capacity to intercept drug shipments.
The
remaining AUD$303 million has been allocated for demand reduction
initiatives which cover five priority areas:
·
Treatment of
users of illicit drugs, including identification of best practice,
·
Prevention of
illicit drug use,
·
Training and
skills development for front line workers who come into contact with drug users,
·
Monitoring and
evaluation, including data collection,
·
Research.
In
conjunction with the new strategy, the Intergovernmental Committee on Drugs has
been established to provide policy advice for government ministers on a full
range of drug-related matters.
In June
1999, Commonwealth, State and Territory health and law enforcement Ministers
agreed on a national approach to the development of a drug diversion initiative.
This was designed to support the diversion of illicit drug users from the
criminal justice system into education and treatment. Diversion involves a
graduated series of interventions appropriate to the seriousness of the offence
and the circumstances of the offender. Diversion is not considered appropriate
for trafficking offences. Drug-involved offenders can be cautioned on the
streets and provided with treatment referral information if their offence is
possession of a small quantity of drugs. They can be sent for assessment or
directly to treatment rather than prison, as long as the offence is not serious
and they do not pose a threat to society. Courts and correctional systems can
also use commitment or referral to community-based treatment as an adjunct to
probation or parole from prison. There is also treatment within correctional
facilities and corrections-operated or funded therapeutic communities and
halfway houses.[184]
Assessment of the
National Drug Strategy (2001)[185]
Based on
the concept of harm minimization rather than the need to eliminate drug use, the
NDS recognizes the complexity of drug issues and the need to provide front-line
health professionals and others dealing with drug problems with a wide range of
options. These options range from abstinence-oriented interventions to programs
aimed at ameliorating the consequences of drug use among those who cannot
reasonably be expected to stop using drugs immediately. The goals, strategies,
guiding principles and performance indicators for the NDS are established by a
National Drug Strategy Committee. This committee consists of high-level civil
servants from health and law enforcement ministries of each state and territory
as well as their counterparts from the federal government. This shared
decision-making has been seen as a strength of the NDS since it enhances
government co-operation and ensures a high level of visibility for the drug
strategy.
Professor
Eric Single noted that the Australian government had followed up on a
number of the recommendations he had made to improve the NDS. For example, the
NDS was renewed for five years, funding was increased, a specialized NDS unit
was created within the Commonwealth Ministry of Health, and action plans were
developed with regard to other recommendations.[186]
Legislative
framework
Under
Australia's federal structure, criminal law– and responsibility for enforcing
drug laws–is primarily the responsibility of state governments. Australia has
ratified the three major international treaties on illicit drugs, and the
obligations under those treaties are effected in three pieces of federal
legislation: the Narcotic Drugs Act 1967,
the Psychotropic Substances Act 1976
and the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act
1990.
The drug laws in
Australian jurisdictions
The law
relating to illicit drugs is made and enforced in Australia on a state and
territorial level. It varies markedly between jurisdictions, but its structure
is broadly similar. The key legislation from each jurisdiction is as follows:
New
South Wales |
Drug Misuse and Trafficking Act 1985; |
Victoria |
Drugs, Poisons and Controlled Substances Act 1981 |
Queensland |
Drugs Misuse Act 1986; Drug
Rehabilitation (Court Diversion) Act 2000 |
Western
Australia |
Misuse of Drugs Act 1981 |
South
Australia |
Controlled Substances Act 1984 |
Tasmania |
Poisons Act 1971 |
Northern
Territory |
Drugs of Dependence Act 1990 |
Australian
Capital Territory |
Drugs of Dependence Act 1989 |
Commonwealth |
Customs Act 1901 Narcotic Drugs Act 1967 Psychotropic Substances
Act 1976 Crimes (Traffic in Narcotic Drugs and
Psychotropic Substances) Act 1990[187] |
Each act
creates, in one form or another, the basic offences of possession, use,
cultivation, production and trafficking, supplying and selling. The acts also
contain lengthy schedules, derived from various international conventions,
listing which drugs are prohibited, and defining various amounts, such as
"traffickable" and "commercial" quantities. These quantities
are used to determine maximum penalties for sentencing purposes.
The
typical maximum penalties for the more serious offences, such as trafficking in
"commercial quantities," are in the range of 25 years to life,
although most jurisdictions apart from Queensland set lower maximums for
offences involving cannabis. Most acts provide for persons who have been found
guilty of simple possession and/or use offences to receive a term of
imprisonment, but it is very uncommon now for this penalty to be imposed.
Particularly for the less serious offences, there is often a very substantial
gap in sentencing between the "law on the books" and the "law in
practice." For example, in Queensland, where the offence of possession
carries a notional maximum penalty of 15 years imprisonment and a maximum fine
of AUD $300,000, the standard penalty applied in the Magistrates Court – where
the overwhelming majority of possession charges are heard – is a fine of a few
hundred dollars, often with no conviction being recorded.[188]
Since
1987 in South Australia, 1992 in the Australian Capital Territory, and 1996 in
the Northern Territory, people detected committing "minor" cannabis
offences have been able to avoid a court appearance altogether by paying a
relatively modest "on-the-spot" fine. While cannabis possession is
still prohibited, it is sanctioned by a civil, not a criminal, penalty. In
addition, Victorian legislation provides for the imposition of pre-conviction
bonds for first offenders charged with minor drug offences (Drugs
Poisons and Controlled Substances Act 1981, s. 76). First offenders are
given a bond, and no conviction is recorded if the bond conditions are complied
with. But in Victoria, New South Wales, Tasmania, Queensland, and Western
Australia all cannabis possession, use and supply is criminally prohibited with
criminal penalties being imposed. In addition, in all jurisdictions the
penalties imposed for commercial dealing are still very substantial, especially
for offences at the upper end of the scale.
In the
civil prohibitionist jurisdictions, the offences attracting a civil infringement
notice include possession of small amounts of cannabis plant (up to 100g in
South Australia, 25g in the Australian Capital Territory, and 50g in the
Northern Territory) and cultivation of cannabis plants (up to three in South
Australia, five in the Australian Capital Territory, and two in the Northern
Territory). Failure to pay the fines may result in court appearances and
subsequent conviction.
The
criminal prohibitionist jurisdictions have also recently adopted
"diversionary" cautioning procedures which allow first or second time
cannabis possession/use offenders to receive a caution or education/counselling
session instead of the normal court appearance.
"Drug
Courts" have been established in four Australian jurisdictions –
Queensland, New South Wales, South Australia, and Victoria. In Queensland and
New South Wales these "diversionary" courts have been established by
legislation while in South Australia and Victoria they operate on a less
formalized basis.[189]
A
notable feature of Australian drug laws is the use of provisions which
contravene the long-established principle that the burden of proof in criminal
cases should be on the prosecution to prove each element of the offence beyond
reasonable doubt. For example, the Drugs
Misuse Act 1986 (Queensland) contains a "deeming provision" for
the offence of possession. This means that, if a prohibited drug is found on
someone’s premises, this will be regarded as conclusive evidence that the drug
was in the possession of the occupier, unless he or she can persuade the court
that they "neither knew nor had reason to suspect that the drug was in or
on that place" (s. 57(c)). Another example is s. 235 of the
Commonwealth Customs Act 1901. This
provision requires a person who has more than a certain quantity of drugs in his
or her possession to prove, on the balance of probabilities, that he or she did
not intend to engage in commercial dealings in relation to those drugs. If the
person cannot prove this, they will be sentenced on the basis that they had an
intention to traffic.
Another
aspect of Australian drug laws to note is the wide range of powers which are
available to police and other law enforcement bodies to detect and investigate
drug offences. Under the Queensland Drugs
Misuse Act 1986, for example, police have had the power in relation to any
quantity of any illegal drug to: stop, search, seize and remove motor vehicles;
detain and search persons; order internal body searches; and enter and search
premises with or without a warrant (s. 18). In addition, for offences such as
drug trafficking, Queensland police are empowered to apply to a court to have
listening devices installed on private premises.
For law
enforcement bodies operating at the federal level, and in most states other than
Queensland, telecommunications interception powers are also available for the
investigation of serious drug offences under the Commonwealth Telecommunications
(Interception) Act 1979.
Over the
last decade, most jurisdictions have also passed confiscation of profits
legislation which can be used to attack the assets of drug traffickers and
producers. In most cases this action can be taken only after the person has been
convicted, but in New South Wales a confiscation order can be made without
requiring a conviction, where the Supreme Court is satisfied that "it is
more probable than not" that the person has engaged in drug-related
activities (Criminal Assets Recovery Act
1990).
Decriminilization
in Australia[190]
While
the National Drug Strategy provides a general framework for responses to drug
problems, drug offences and the associated penalties in Australia are a matter
of state and territorial jurisdiction. Some Australian states and territories
have adopted cannabis decriminilization measures while others have not.
The
first Australian jurisdiction to adopt cannabis decriminilization measures was
South Australia. The Cannabis Expiation Notice (CEN) scheme came into effect in
South Australia on 30 April 1987. Under this scheme, adults coming to the
attention of police for "simple cannabis offences" could be issued
with an expiation notice. Offenders were able to avoid prosecution by paying the
specified fee or fees (ranging from AUD $50 to AUD $150) within 60 days of the
issue of the notice. Failure to pay the specified fees within 60 days could lead
to prosecution in court, and the possibility of a conviction being recorded.
Underlying the CEN scheme is the rationale that a clear distinction should be
made between private users of cannabis and those who are involved in dealing,
producing or trafficking in cannabis. This distinction was emphasized at the
introduction of the CEN scheme by the simultaneous introduction of more severe
penalties for offences relating to the manufacture, production, sale or supply
of all drugs of dependence and prohibited substances, including offences
relating to larger quantities of cannabis.
The CEN
scheme was modified by the introduction of the Expiation of Offences Act, 1996 which now provides those served with
an expiation notice the option of choosing to be prosecuted in order to contest
being given the notice. Previously those served with a notice had to let the
payment of expiation fees lapse in order to secure a court appearance to contest
the notice. In choosing to be prosecuted, however, people issued a notice have
their alleged offence converted from one which can be expiated to one which
still carries the possibility of a criminal conviction.
The
Australian Capital Territory (in 1992) and the Northern Territory (in 1996)
introduced similar expiation schemes. Victoria implemented a system of cautions
for minor cannabis offenders in 1998 and Western Australia has followed with a
similar scheme.
In all
cases, cannabis possession remains a criminal offence. By their nature, these
provisions reduce, as necessary, the prison term in which the possession of
small quantities of cannabis for personal use would previously have resulted.[191]
Various
evaluation studies since conducted have revealed significant savings and reduced
negative social impact on persons convicted of minor cannabis offences. None of
the studies upon levels and patterns of cannabis use in South Australia[192]
have found an increase in cannabis use which is attributable to the introduction
of the CEN scheme. Cannabis use did increase in South Australia over the period
from 1985 to 1995 but this was so throughout Australia, including in
jurisdictions with a total prohibition approach to cannabis. In fact, the
largest increase in the rate of weekly cannabis use across all Australian
jurisdictions occurred in Tasmania, a prohibitionist state.[193]
A
comparative study of minor cannabis offenders in South Australia and Western
Australia concluded that both the CEN scheme and the more punitive prohibition
approach had little deterrent effect upon cannabis users. Offenders from both
jurisdictions reported that an expiation notice or conviction had little or no
impact upon subsequent cannabis and other drug use. However, the adverse social
consequences of a cannabis conviction far outweighed those of receiving an
expiation notice. A significantly higher proportion of those apprehended for
cannabis use in Western Australia reported problems with employment, further
involvement with the criminal justice system, as well as accommodation and
relationship problems.[194]
In the
law enforcement and criminal justice areas, the number of offences for which
cannabis expiation notices were issued in South Australia increased from around
6,000 in 1987/88 to approximately 17,000 in 1993/94 and subsequent years. This
appears to reflect the greater ease with which police can process minor cannabis
offences and a shift away from the use of police discretion in giving offenders
informal cautions to a process of formally recording all minor offences.
Substantial numbers of offenders still received convictions due to their failure
to pay expiation fees on time. This was due in large part to a poor
understanding by cannabis users of the legal consequences of not clearing
expiation offences and due to financial difficulties. Most CENs are issued for
less than 25g of cannabis and half of all CENs issued were received by people in
the 18- to 24- year-old age group.[195]
The
scheme has proven to be relatively cost-effective and more cost-effective than
prohibition would have been. The total costs associated with the CEN scheme in
1995/96 were estimated to be around AUD $1.24 million while total revenue
from fees and fines was estimated to be around AUD $1.68 million. Had a
prohibition approach been in place, it is estimated that the total cost would
have been around AUD $2.01 million, with revenue from fines of around $1 million.[196]
A report
on the CEN scheme[197]
noted that it appeared to have numerous benefits for the community, not the
least of which were cost savings for the community as a whole, reduced negative
social impacts for offenders, and greater efficiency and ease in having minor
cannabis offences dealt with, associated with less negative views of police held
by offenders. Yet the rate of expiation of notices has remained low, compared
with other types of infringement notices, at around 45%.
Administration
Public costs
In
financial terms, Commonwealth and State Government expenditure in response to
illicit drugs in 1992 was estimated at AUD $620 million. Of this sum, 84%
was allocated to law enforcement, 6% to treatment, and 10% to prevention and
research. Commonwealth and state expenditure on methadone programs has been
estimated at AUD $30 million per year.
Based on
various more recent estimates, it is likely that more than AUD $200 million
is spent annually in the health and social welfare sectors by governments as a
direct or indirect result of the illicit drugs trade.[198]
It is estimated that AUD $450 to AUD $500 million is the annual cost to the
criminal justice system incurred by illicit drugs.[199]
It is estimated that more than AUD $312 million is raised each year by
heroin users/dealers through property crime.[200]
Law enforcement estimates suggest that drugs generate at least AUD $2 billion
annually within Australia. In addition, it has been suggested that a significant
proportion of the estimated AUD $3.5 billion laundered in and through
Australia each year can be attributed to illicit drugs.[201]
The
economic costs associated with the prevention and treatment of drug-related
illness, loss of productivity in the workplace, property crime, theft, accidents
and law enforcement activities are over AUD $18 billion annually.[202]
Social costs
In a
study of the social impacts of a conviction for a minor cannabis offence on
first time offenders, a significant minority of the sample was shown to develop
less favourable attitudes towards police, and there was evidence that many
respondents had experienced adverse consequences in terms of employment
difficulties, further problems with the law, and problems in relationships and
accommodation.[203]
A cost
of making cannabis illegal is the exposure of cannabis buyers to a range of
other potentially more harmful illicit drugs which are available for sale.
Another cost is the involvement of organized crime in large scale cannabis
production and distribution in Australia. Finally, the illicit drug market
generates a sizeable cash economy. It is not too surprising that some police
officers become involved in corrupt activities such as drug use, drug dealing,
protection of drug dealers, theft of drugs and/or money, and the presentation of
false evidence in court.[204]
Statistics
Use[205]
The
Australian Institute of Health and Welfare conducts a National Drug Strategy
Household Survey (NDSHS) every 2-3 years. This survey has been conducted since
1985 with the seventh survey taking place in 2001. The last survey for which
results are available took place in 1998.[206]
10,300 Australians aged 14 years and older participated in the NDSHS.
Respondents were asked about their knowledge of drugs, their attitudes towards
drugs, their drug consumption histories, and related behaviours.
The
results from the NDSHS in 1998 indicate that approximately 46% of the Australian
population had used an illicit drug at some time, while 23% of Australians
reported using any illicit drug in the twelve months preceding the survey.
Marijuana was the most common illicit drug used, with 39.1% of those aged 14
years and over having used the drug at some time in their lives and 17.9% having
used it recently. Of those who had used marijuana, almost half had used it in
the past 12 months. The prevalence of lifetime use of
pain‑killers/analgesics (for non-medical purposes) was 11.5%, followed by
hallucinogens (9.9%) and amphetamines (8.8%). Only 2.2% of the Australian
population had ever used heroin, with 0.8% reporting recent usage. The
prevalence of cocaine use was slightly higher, with lifetime use in 4.3% of the
respondents and recent use in 1.4%.
The
second national survey on the use of over-the-counter and illicit substances by
secondary students was conducted in 1999. The survey collected data from 25,480
students aged 12-17 years from 434 secondary schools throughout Australia.
According to the survey, substance use increased with age for all substances
except for inhalants and steroids. Across all ages, the most common substances
used were analgesics (for medical and non-medical purposes), with at least 95%
of those surveyed reporting the use of this substance. Marijuana use was also
relatively high, particularly among those aged 16-17 years, who were more likely
than the general community to use marijuana (47% versus 39%). Overall, a similar
number of male and female students had tried the substances surveyed. However,
slightly more males (32%) than females (29%) had used marijuana, while slightly
more females than males had used analgesics for any purpose (98% versus 96%).
Apart from these two substances, lifetime and recent illicit substance use was
similar for both males and females.
Offences[207]
Marijuana/cannabis
is consistently the most common drug for which people are arrested in Australia,
accounting for 70% of all illicit drug arrests in 1998-99. However, the number
of persons arrested for either the possession or supply of marijuana has fallen
sharply from almost 79,000 in 1995-96 to approximately 58,000 in 1998-99.
The most
common drug-related offence for which people were imprisoned was
dealing/trafficking in drugs. Of the 1,663 people in prison in 1999 for
drug-related offences, 78% were imprisoned for dealing/trafficking offences,
with a further 11% imprisoned for possession/use of illicit drugs. The
proportion of the total prison population imprisoned for drug-related offences
has steadily declined, from 11% in 1995 to 9% in 1999. The proportion of people
imprisoned for possession/use of drugs has remained stable over the past five
years at 1%, while the proportion of those in prison for dealing/trafficking
drugs and manufacturing/growing drugs is steadily decreasing.
Attitudes to drug use and
drug legalization
The
regular use of illicit drugs was not considered to be acceptable among the vast
majority of the respondents in the 1998 NDSHS. Males were more likely to accept
regular illicit drug use than were females. Marijuana was the most widely
accepted illicit drug, with 30.5% of males and 20.6% of females supporting
regular use.
Support
for the legalization of illicit drugs follows a similar pattern to that of the
acceptability of regular illicit drug use. The legalization of marijuana was
supported by 33.8% of males and 25.1% of females. By contrast, support for the
legalization of heroin, amphetamines and cocaine was less popular. Only 7% of
males and 5.1% of females supported the legalization of cocaine. Those who
supported the legalization of heroin, amphetamines and cocaine were generally
aged 20-29 and 40-49 years.
The
United States[208]
A proper
description of the illegal drug policies, and even more so of drug practices, in
the United States would in itself be long enough to fill a single report.
Consider this: the research budget of the National Institute on Drug Abuse
(NIDA) alone amounts to US $1 billion, approximately 80 per cent
of funding allocated to illicit drug research worldwide; the budget of the
Office for National Drug Control Policy (ONDCP) is more than US $18 billion,
compared to that of the Canadian Drug Strategy, which is CDN $16 million,
approximately one-half of one per cent of the US office's budget; and total
expenses relating to illegal drugs are approximately US $35 billion.
Furthermore, given the complexity of the American political system and the
diversity of its population, one can only imagine the difficulty of accurately
representing US drug policies.
What is
more, the United States and illegal drugs are inextricably intertwined. As seen
in the last chapter, the USA has played and continues to play a preponderant
role in the negotiation and enforcement of international drug conventions. To
think of drugs where the United States is involved is automatically to think of
the "war on drugs" and the legions of statistics on incarceration,
harsh sentences and the enormous economic and social costs that result
therefrom.
In this
section, we can only scratch the surface of this complex issue. Fortunately, in
previous chapters, we have discussed various figures on the United States, use
rates in Chapter 6 and research into effects in Chapter 7, for
example. Our task was made even more difficult by the fact that we were unable
to hear government representatives at the public hearings. In our single day of
hearings in the United States, we heard from the Governor of New Mexico, Mr. Gary Johnson,
and Mr. Ethan Nadelman of the Lindesmith Centre-Drug Policy
Foundation. It was not until June 10 of this year that we were able to have
a private meeting with Dr. Hanson, the director of NIDA and, on June 11, an
in camera session with Mr. Walters,
the director of the ONDCP.
The
federal-state legislative framework
Historically,
most criminal law and its enforcement was a matter under the jurisdiction of the
states. Article I of the U.S. Constitution delineates the federal government’s
areas of legislative authority and the Tenth Amendment expressly provides that
all powers not granted to the central government belong to the states. Criminal
law is not among the powers specified as being within the federal government’s
purview and in Congress’ early days, federal criminal laws were restricted to
acts injurious to the national government, such as treason and counterfeiting,
or offences of an extra-territorial nature, such as piracy and felonies
committed on the high seas.
Despite
this, the U.S. Congress has managed to assume a significant role in the
criminalization of drug use. Although the "Father of the
Constitution," James Madison, had assured the states that their powers were
"numerous and indefinite" and those of the central government
"few and defined,"[209]
judicial constitutional analysis subsequently provided a very wide
interpretation of the sphere of congressional authority. Beginning with the 1819
case of McCulloch v. Marlyland[210]
the U.S. Supreme Court has given a broad reading to the Article I provision
that the federal government may enact all laws that are "necessary and
proper" for executing its listed powers. Two of Congress’ listed powers
are taxation and the regulation of foreign and interstate commerce. As discussed
below, the federal government has used these heads of power as the foothold for
entering into the regulation of drug use.
Historical[211]
From the
time of the U.S. Civil War (1861-1865) to the end of the 19th
century, the use and sale of opium, morphine, cocaine and other psychoactive
drugs were legal and common. Opium was available with or without a prescription
and was an ingredient in many patent medicines, including various pain-killers,
cough mixtures and teething syrups for infants. Cocaine was also used
medicinally, as well as in soft drinks and wine.
Things
started to change around the turn of the century. Heroin was first isolated in
1898 and was purported to convey the same benefits as opium or morphine, without
the risk of addiction. The realization of heroin’s addictive properties soon
after its introduction coincided with racist appeals to protect American society
from drugs. Initially, two drugs were targeted: Cocaine, associated mainly with
Blacks who were said to go on violent rampages under its influence, and opium,
the smoking of which was associated with the Chinese. Alcohol temperance
societies and religious groups also played key roles in lobbying for
prohibition.
Despite
strong opposition from the patent medicine industry, the U.S. Congress passed
the Pure Food and Drug Act in 1906.
This legislation required over-the-counter medicines to list the amount of drugs
contained in them in the hope that this would reduce the use of such medicines.
Soon to follow was the Opium Smoking Act
of 1909 (as Amended, 1914) in which Congress banned the importation of the
drug for non-medicinal purposes.
The Harrison Narcotic Act of 1914
The Harrison
Act was a significant development in American drug policy. Earlier
legislation enacted in 1909 had restricted the importation of opium in
accordance with the international conventions against the use of the drug.
Initially designed to medicalize cocaine and heroin by restricting their
distribution to physicians, the Harrison
Act was passed in 1914. Its stated purpose was soon altered by the influence
of the prohibitionist fervour of the day and this legislation became the unusual
model upon which the administration of American narcotics policy would develop.
Constitutional limits, as perceived at the time, meant that federal laws had to
focus on international controls, interstate transfer and taxation. The Act
therefore addressed drug use by requiring anyone selling drugs to be licensed
and to keep records of all sales, ostensibly for tax purposes. As part of this
regulatory process, users had to obtain prescriptions. Even though the Act
specifically provided that doctors could prescribe narcotics, they could only do
so if it was in the course of their "professional practice."
There
were court challenges to the legislation. However, the U.S. Supreme Court upheld
the Harrison Act as a revenue act and
not a policing measure.[212]
It was subsequently held that the Act did not permit physicians to
prescribe drugs to “addicts” to keep them physically comfortable or maintain
their addiction.[213]
The Behrman decision[214]
of 1922 further restricted the ability of physicians to prescribe and the
prosecution of pharmacists and physicians resulted in legal supplies of opiates
and other drugs essentially becoming unavailable by the early 1920s.
Subsequent measures
In the
Depression years, fears about "degenerate Mexicans" smoking marijuana
also led to legislative action. Some suggest that this represents a common
thread in American drug policy; that is, the determining factor in deciding
whether a particular drug was criminalized was not its inherent properties or
potential for social harm, but rather the kinds of people associated with its
use.[215]
By 1931, 29 states had outlawed marijuana and in 1937 Congress passed the Marihuana
Tax Act which, like the Harrison Act,
established federal control over marijuana pursuant to Congress’ revenue
authority. Although opposed by the American Medical Association at the time, the
Act had the support of the country’s top drug cop, the head of the Federal
Bureau of Narcotics (FBN), Henry J. Anslinger.
Anslinger,
a central figure in the history of American drug policy, had been named the
commissioner of the FBN in 1930 and headed the organization through five
presidential administrations, until 1962. Often compared to his contemporary J.
Edgar Hoover, who controlled the FBI. with similar tenacity, Anslinger did not
support a public health approach to drug policy and argued that jailing users
was the only proper response. He often suggested that drugs were part of a
foreign plot. During W.W.II, he accused the Japanese of using narcotics to sap
America’s will to fight; following the war, he asserted that it was the
Communists who were attempting to do so.
Current
legislation and enforcement
Federal law
The Controlled Substances
Act
In 1970
the U.S. Congress enacted the federal Controlled Substances Act (the CSA)
[216]
pursuant to the federal authority to regulate interstate commerce.[217]
This Act repealed most of the earlier federal legislation, including the Harrison
Act and the Marihuana Tax Act, and
is the foundation of U.S. federal drug law today. Based on a series of
schedules, drugs are categorized and controlled to varying degrees. The most
restrictions are placed on Schedule I drugs which cannot be possessed by anyone,
except for the purpose of research that has been licensed by the federal
government. This schedule includes drugs such as marijuana, heroin, MDMA, LSD
and peyote which are deemed to have no medical use and a high abuse potential.
Schedule II substances, which have an accepted medical use and are deemed to
have an abuse potential less than those in Schedule I, are also subjected to
tight controls. Included in Schedule II are cocaine, opium, morphine, meperidine
(Demerol) and codeine.
The
enactment of the CSA in 1970 represented a significant change in one key
respect. Marijuana was differentiated from other drugs and federal penalties
were reduced, not only for possession, but also for trafficking and distribution
offences. This was to change, however, during the Reagan administration in the
1980s.
In 1982
President Reagan signed an executive order creating the post of White House Drug
Policy Advisor. The Comprehensive Crime
Control Act of 1984, the Anti-Drug
Abuse Act of 1986 and the Anti-Drug
Abuse Amendment Act of 1988 raised federal penalties for various
drug-related offences (including marijuana offences), increased funding for drug
control activities and sought to improve the coordination of federal drug
control efforts. The National Narcotics
Leadership Act of 1988 created the Office of National Drug Control Policy,
the director of which is commonly referred to as the "Drug Czar."[218]
Many
commentators have suggested that these laws were passed during a time of extreme
anti-drug hysteria resulting from the introduction of crack cocaine.[219]
Propagated by politicians and embraced by the mainstream media, myths
regarding crack likely had a significant impact on the increased use of
mandatory minimum sentences and the expansion of the American "war on
drugs" during the Reagan era.
Scheduling under the
CSA–the example of marijuana
An
examination of a petition to the Drug Enforcement Administration to reschedule
marijuana is instructive of the scheduling process under the CSA.[220]
In concluding that marijuana should remain in Schedule I, the Department
of Justice considered eight factors:
·
The drug’s
actual or relative potential for abuse;
·
Scientific
evidence of its pharmacological effects;
·
The state of
current scientific knowledge of the drug;
·
Its history and
current pattern of abuse;
·
The scope,
duration and significance of abuse;
·
What, if any,
risk there is to public health;
·
The drug’s
psychic or physiological dependence liability; and,
·
Whether the
drug is an immediate precursor of a substance already controlled under the CSA.
The
petition to reschedule was denied in part on the basis that marijuana has a high
potential for abuse. While the term "abuse" is not defined in the CSA,
the administration examined various factors in ascertaining the potential for
abuse. Most important was its finding that individuals are taking the substance
in amounts sufficient to create a hazard to their health or to the safety of
other individuals or the community. It was determined that while marijuana has
low levels of toxicity compared to other drugs of abuse, there are a number of
risks resulting from both acute and chronic use, such as dizziness, nausea, time
distortions, impaired judgement and short-term memory impairment. Also noted
were studies from some authors who described a "marijuana withdrawal
syndrome" consisting of restlessness, mild agitation, insomnia, nausea and
cramping that resolves within days.
Another
significant element of the analysis that precluded rescheduling marijuana was
the fact that the drug has no currently accepted medical use in the United
States. The Food and Drug Administration has not yet authorized treatment using
marijuana. To do so would require that the following conditions be satisfied:
·
The drug’s
chemistry must be known and reproducible;
·
There must be
adequate safety studies;
·
There must be
adequate and well-controlled studies proving efficacy;
·
The drug must
be accepted by qualified experts; and,
·
The scientific
evidence must be widely available.
Proposed legislation
The
legislative war on drugs continues in the U.S. Congress. The proposed Drug
Dealer Liability Act of 1999 passed in the U.S. House of Representatives and
was received in the Senate at the end of 2000. It would impose civil liability
on drug dealers for the harm caused–either directly or indirectly–by the use
of controlled substances. Even the drug users themselves would be permitted to
sue for damages, although the statute requires that they first disclose to
narcotics enforcement officers everything they know about the source of the
illegal drugs. While it is not clear whether this bill will be made law, a model
Drug Dealer Liability Act has so far been adopted by 13 states.[221]
Legislation
entitled the Protecting Our Children from
Drugs Act of 2000 was passed by the House of Representatives on 17 October
2000. It would amend the Controlled
Substances Act to further increase penalties for drug dealers who involve
children in the drug trade. Mandatory minimum sentences would increase for
dealers who use children under 18 to distribute drugs in or near schools or
other "protected locations" such as playgrounds and video arcades.
Other proposed initiatives include the Drug
Free America Act of 2001, the Domestic
Narcotic Demand Reduction Act of 2001
and the Drug Treatment and Research
Enhancement Act of 2001.
Federal penalties
The
following charts provide a summary of the fines and the terms of imprisonment
for selected violations of the federal Controlled
Substances Act and related federal laws.[222]
Note that for a third felony drug offence involving amounts constituting a
top level offence, there is a mandatory life sentence without the possibility of
release. Also note that the indicated weights refer to any mixture containing a
detectable amount of the illegal drug regardless of the substance in the
mixture. "Conspiracy" and "attempt" offences carry the same
penalties as the underlying offence.
Table 1[223]
Unlawful distribution, possession with intent to
distribute, manufacture, importation and exportation |
||||
Substance |
Offence Number |
Amount of Drug |
Fine (in dollars) |
Imprisonment |
Heroin |
First
Offence |
1 kg or more |
4-10 million |
10 years to
life |
100 g – 1 kg |
2-5 million |
5-40 years |
||
Less than 100 g |
1-5 million |
Up to 20
years |
||
Second
Offence [224] |
1 kg or more |
8-20 million |
20 years to
life |
|
100 g – 1
kg |
4-10 million |
10 years to
life |
||
Less than
100 g |
2-10 million |
Up to 30
years |
||
Coca
leaves, Cocaine or "Crack" |
First
Offence |
50 g or
more |
4-10 million |
10 years to
life |
5-50 g |
2-5 million |
5-40 years |
||
Less than 5
g |
1-5 million |
Up to 20
years |
||
Second
Offence |
50 g or
more |
8-20 million |
20 years to
life |
|
5-50 g |
4-10 million |
10 years to
life |
||
Less than 5
g |
2-10 million |
Up to 30
years |
||
LSD |
First
Offence |
10 g or
more |
4-10 million |
10 years to
life |
1-10 g |
2-5 million |
5-40 years |
||
Less than
10 g |
1-5 million |
Up to 20
years |
||
Second
Offence |
10 g or
more |
8-20 million |
20 years to
life |
|
1-10 g |
4-10 million |
10 years to
life |
||
Less than
10 g |
2-10 million |
Up to 30
years |
||
Marijuana |
First
Offence |
1,000 kg or
more or 1,000 plants or more |
4-10 million |
10 years to
life |
100-1,000
kg or 100-1,000 plants |
2-5 million |
5-40 years |
||
50-100 kg
or 100 plants |
1-5 million |
Up to 20
years |
||
Under 50 kg[225] |
250,000-1 million |
Up to 5
years |
||
Second Offence |
1,000 kg or more or 1000 plants or more |
8-20 million |
20 years to life |
|
100-1,000 kg or 100-1,000 plants |
4-10 million |
10 years to life |
||
50-100 kg or 100 plants |
2-10 million |
Up to 30 years |
||
Under 50 kg |
500 000-2 million |
Up to 10 years |
Table 2
Simple possession |
||||
Drug |
Offence Number |
Amount of Drug |
Fine (in dollars) |
Imprisonment |
Cocaine based |
First |
Over 5 g |
Up to
250,000 |
5-20 years |
First |
5 g or less |
Minimum
1,000 |
Up to 1
year |
|
All other |
First |
All amounts |
||
Cocaine
based |
Second[226] |
Over 3 g |
Up to
250,000 |
5-20 years |
All other |
Second |
All amounts |
Minimum
2,500 |
15 days to
2 years |
Cocaine
based |
Third |
Over 1 g |
Up to
250,000 |
5-20 years |
All other |
Third |
All amounts |
Minimum
5,000 |
90 days to
3 years |
State laws
General
In the
U.S. a group called the National Conference of Commissioners on Uniform State
Law has the task of drafting legislation that is to be recommended for adoption
by all states in an effort to promote legislative consistency throughout the
nation. The most recent Uniform Controlled Substances Act was drafted in 1994.
The Act sets out the prohibited activities in detail but specific fines and
sentencing are left to the discretion of the individual States. Most states have
substantially adopted the major provisions of the Uniform Act[227]
with the exception of New Hampshire and Vermont where the state laws are
not a substantial adoption of the Uniform CSA, although they contain some
similar provisions and have the same general purpose. Also of note are the
medical marijuana exemptions discussed below.
In terms
of sentencing, there are significant discrepancies between states.[228]
With respect to sentencing for other drug offences, some states have
experimented with extremely harsh penalties. New York’s "Rockefeller
Laws," for example, are referred to herein in the section entitled
"Key Reports and Studies." Other states that adopted similar
"get-tough" penalties are now re-examining mandatory minimums, often
as a result of fiscal considerations. For example, the state legislature in
Louisiana overhauled its drug laws in June 2001. New legislation has cut drug
sentences and repealed mandatory minimums for many non-violent crimes. As one
republican legislator was quoted as saying, "It’s costing us too much
to lock these people up and throw away the key."
Medical marijuana
Since
1978, medical marijuana laws have been enacted in 35 states. Five have since
expired or been repealed but the balance remain on the books. Of those
remaining:
·
12 states have
"Therapeutic Research Program" laws that purport to permit scientific
research (although this is complicated by the federal prohibition).
·
10 states (and
the District of Columbia) have symbolic laws that recognize the potential
medicinal value of marijuana, but do not provide any protection from arrest.
·
8 states have
laws that effectively allow patients to use medical marijuana despite federal
law.
The
following chart provides details of the eight states with effective medical
marijuana laws. While marijuana possession is still a federal crime, most drug
arrests are made by state and local officials. Since the federal government
cannot force state and local police to enforce federal statutes, medical
marijuana users are usually able to avoid prosecution in these states. However,
since pharmacies do not sell marijuana, some distribution centres called
"buyers’ clubs" have emerged and these operations have been hampered
by federal law enforcement.
Recently,
the Supreme Court examined the issue of buyers’ clubs in Conant
v. Oakland Cannabis Buyers’ Cooperative.[229]
The court unanimously ruled that there is no medical necessity defence to
the Controlled Substances Act’s prohibitions on manufacturing and distributing
marijuana. Because the CSA classifies marijuana as a Schedule I drug, marijuana
has been deemed to have no medical benefits. While the decision in Conant
does not render state laws regarding medical marijuana inoperative, it does
enhance the federal government’s ability to prosecute under the CSA in all
states. That said, federal enforcement efforts have not, thus far, targeted
individuals who possess or cultivate small amounts for medical use. Only the
buyers’ clubs (also known as "compassion clubs") have been targeted.
In
respect of the following chart, it should be noted that the quantity of
marijuana a patient may possess varies from state to state. The provisions
exempting caregivers from criminal liability may also vary.
State
and Date Enacted |
Protection
provided to
Patients |
Documentation
Required |
Alaska – 3 Nov. 1998 |
Affirmative defence[230]
provided to those registered with the state |
Signed physician statement confirming that
patient was examined, has a debilitating medical condition and other |
California – 5 Nov. 1996 |
Exemption from prosecution if marijuana
possession or cultivation is solely for the medical purposes of the
patient |
Written or oral approval by physician who has
determined that the patient's health would benefit from marijuana in the
treatment of a qualifying |
Colorado
– 7 Nov. 2000 |
Exemption from prosecution if in possession of a
registry card; affirmative defence if no card, but in compliance with |
Diagnosed prior to arrest as having a
debilitating condition and advised by the physician that marijuana might
benefit |
Hawaii – 14 June 2000 |
Exemption from prosecution if in possession of a
registry card; "choice of evils" defence also available[231] |
Card obtained with medical records or a statement
from a physician that there is a debilitating condition and the
potential benefits of marijuana would "likely outweigh the |
Maine – 2 Nov. 1999 |
Burden on state to prove that patient's medical
use was not authorized by statute |
Medical records or physician's letter showing
that the patient has a qualifying condition, that the risks have been
discussed and that the patient "might benefit" from medical
marijuana |
Nevada – 7 Nov. 2000 |
Exemption from prosecution |
"Advice required"; specifics yet to be
determined by legislature |
Oregon – 3 Nov. 1998 |
Exemption from prosecution if in possession of
registry card; affirmative defence if no card, but in compliance with
the law; choice of evils |
Diagnosed within 12 months of arrest with a
qualifying condition and advised by attending physician that marijuana
"may mitigate the |
Washington – 3 Nov. 1998 |
Exemption from prosecution if
patient qualifies, has no more marijuana than necessary for personal
medical use and presents valid documentation to law enforcement;
affirmative defence if in compliance with |
Signed physician statement or
medical records that indicate that physician is of the opinion that the
"potential benefits" of marijuana "would likely outweigh
the health risks" |
Federal
drug policy goals and objectives
National
drug-control policy in the United States purports to be based upon prevention,
education, treatment and research, complemented by "supply reduction"
activities.[232] To quote from
the 2001 Annual Report of the Office of National Drug Control Policy
("ONDCP"):
Through a balanced array of
demand-reduction and supply-reduction actions, we strive to reduce drug abuse
and availability by half and the consequences of drug abuse by at least 25% by
2007. [233]
Using
the metaphor of cancer for the nation’s drug problem, the ONDCP lists the
following strategic goals and objectives as being the heart of American federal
action in this area.[234]
Goal 1: Educate and enable America's youth
to reject illegal drugs as well as alcohol and tobacco. |
|
Objective 1: |
Educate parents and
other care givers, teachers, coaches, clergy, health professionals, and
business and community leaders to help youth reject illegal drugs and
underage alcohol and tobacco use. |
Objective 2: |
Pursue a vigorous
advertising and public communications program dealing with the dangers
of illegal drugs, alcohol, and tobacco use by youth. |
Objective 3: |
Promote zero
tolerance policies for youth regarding the use of illegal drugs,
alcohol, and tobacco within the family, school, workplace, and
community. |
Objective 4: |
Provide students in
grades K-12 with alcohol, tobacco, and drug prevention programs and
policies that are research based. |
Objective 5: |
Support parents and
adult mentors in encouraging youth to engage in positive, healthy
lifestyles and modeling behavior to be emulated by young people. |
Objective 6: |
Encourage and assist
the development of community coalitions and programs in preventing drug
abuse and underage alcohol and tobacco use. |
Objective 7: |
Create partnerships
with the media, entertainment industry, and professional sports
organizations to avoid the glamorization, condoning, or normalization of
illegal drugs and the use of alcohol and tobacco by youth. |
Objective 8: |
Develop and
implement a set of research-based principles upon which prevention
programming can be based. |
Objective 9: |
Support and
highlight research, including the development of scientific information,
to inform drug, alcohol, and tobacco prevention programs targeting young
Americans. |
Goal 2: Increase
the safety of America's citizens by substantially reducing drug-related
crime and violence. |
|
Objective 1: |
Strengthen law
enforcement – including federal, state, and local drug task forces –
to combat drug-related violence, disrupt criminal organizations, and
arrest and prosecute the leaders of illegal drug syndicates. |
Objective 2: |
Improve the ability
of High Intensity Drug Trafficking Areas (HIDTAs) to counter drug
trafficking. |
Objective 3: |
Help law enforcement
to disrupt money laundering and seize and forfeit criminal assets. |
Objective 4: |
Break the cycle of
drug abuse and crime. |
Objective 5: |
Support and
highlight research, including the development of scientific information
and data, to inform law enforcement, prosecution, incarceration, and
treatment of offenders involved with illegal drugs. |
Goal 3: Reduce health and social costs to the
public of illegal drug use. |
|
Objective 1: |
Support and promote
effective, efficient, and accessible drug treatment, ensuring the
development of a system that is responsive to emerging trends in drug
abuse. |
Objective 2: |
Reduce drug-related
health problems, with an emphasis on infectious diseases. |
Objective 3: |
Promote national
adoption of drug-free workplace programs that emphasize a comprehensive
program that includes: drug testing, education, prevention, and
intervention. |
Objective 4: |
Support and promote
the education, training, and credentialing of professionals who work
with substance abusers. |
Objective 5: |
Support and promote
the education, training, and credentialing of professionals who work
with substance abusers. |
Objective 6: |
Support and
highlight research and technology, including the acquisition and
analysis of scientific data, to reduce the health and social costs of
illegal drug use. |
Objective 7: |
Support and
disseminate scientific research and data on the consequences of
legalizing drugs. |
Goal 4: Shield
America's air, land, and sea frontiers from the drug threat. |
|
Objective 1: |
Conduct flexible
operations to detect, disrupt, deter, and seize illegal drugs in transit
to the United States and at U.S. borders. |
Objective 2: |
Improve the
coordination and effectiveness of U.S. drug law enforcement programs
with particular emphasis on the Southwest Border, Puerto Rico, and the
U.S. Virgin Islands. |
Objective 3: |
Improve bilateral
and regional cooperation with Mexico as well as other cocaine and heroin
transit zone countries in order to reduce the flow of illegal drugs into
the United States. |
Objective 4: |
Support and
highlight research and technology – including the development of
scientific information and data – to detect, disrupt, deter, and seize
illegal drugs in transit to the United States and at U.S. borders. |
Goal 5: Break foreign and
domestic drug sources of supply. |
|
Objective 1: |
Produce a net
reduction in the worldwide cultivation of coca, opium, and marijuana and
in the production of other illegal drugs, especially methamphetamine. |
Objective 2: |
Disrupt and
dismantle major international drug trafficking organizations and arrest,
prosecute, and incarcerate their leaders. |
Objective 3: |
Support and
complement source country drug control efforts and strengthen source
country political will and drug control capabilities. |
Objective 4: |
Develop and support
bilateral, regional, and multilateral initiatives and mobilize
international organizational efforts against all aspects of illegal drug
production, trafficking, and abuse. |
Objective 5: |
Promote
international policies and laws that deter money laundering and
facilitate anti-money laundering investigations as well as seizure and
forfeiture of associated assets. |
Objective 6: |
Support and
highlight research and technology, including the development of
scientific data, to reduce the worldwide supply of illegal drugs. |
Administration of the
policy
As
previously stated, the national drug control budget is enormous. Over $18
billion has been budgeted for the year 2001 for the purpose of supporting the
goals and objectives of the National Drug Control Strategy. Numerous federal
departments, including Defense, Education, Justice, State and the Treasury, are
involved and often must coordinate with state and local government agencies and
a wide assortment of community and professional groups. This is all overseen by
the ONDCP.
A key
government department is the Department of Justice which is responsible for many
of the agencies involved in this area and receives a significant portion of the
drug control budget; over 8 billion dollars in 2001.[235]
Various agencies receive funding through Justice, including the Bureau of
Prisons, the F.B.I., INTERPOL, the U.S. Marshals Service, the Immigration and
Naturalization Service and the Drug Enforcement Agency (DEA). The DEA[236]
merits special mention in the Justice Department’s administration of
drug control policy. Its mission is to enforce the controlled substances laws
and regulations and to recommend and support non-enforcement programs aimed at
reducing the availability of illicit controlled substances on the domestic and
international markets. Established in 1973, it is the successor of Anslinger’s
FBN and other enforcement arms of the federal government as illustrated in the
following graphic.[237]
Apart
from its law enforcement duties, the DEA manages national drug intelligence and
is responsible, under the policy guidance of the Secretary of State and U.S.
Ambassadors, for all programs associated with drug law enforcement counterparts
in foreign countries. In this capacity, the organization liases with the United
Nations, Interpol, and other organizations on matters relating to international
drug control programs. American actions outside of U.S. territory include
"Plan Columbia," a program targeted at reducing cocaine productivity
in that country to which over a billion dollars has been committed, as well as
well joint enforcement activities undertaken with other governments such as
Mexico. As well, under the Foreign
Assistance Act, the U.S. is required to impose substantial restrictions on
bilateral assistance to those countries listed by the White House as being major
drug producing or transit countries. Similarly, the Foreign Narcotics Kingpin Designation Act permits the President to
designate foreign individuals as "drug kingpins," thereby denying them
access to the U.S. financial system and making illegal any transactions between
the "kingpin" and U.S. companies or individuals.
Current issues and
debates
The
costs of incarceration, the unequal impact of drug laws on racial minorities and
police corruption resulting from the war on drugs are issues that have garnered
increased attention in this ongoing debate. For example, the Republican Governor
of New Mexico has called for the decriminalization of all drugs – "Control
it, regulate it, tax it" he has been quoted as saying[238]
– citing the mounting cost of addressing drug abuse problems with prison
rather than treatment. At our hearings, the Governor told us:
I
happen to believe that the war on drugs is an absolute miserable failure. (…)
When I witness that half of what we spend on law enforcement, half of what we
spend on the courts and half of what we spend on the prisons is drug related, I
know that there is no bigger issue facing us today. In the United States we are
spending $50 billion each year on drug-related crime. (…) Two-thirds of
all prisoners in the United States are incarcerated on drug charges. Nearly
500,000 incarcerations, one-quarter of the prison population, are directly
related to drugs. It costs over $8.6 billion each year just to keep drug
offenders locked up in the United States. Even with all of those expenditures,
illegal drugs are now cheaper, more available and more potent than they were 20 years
ago.
(…)
In the United States, which one of these substances gets people arrested? We are
arresting 1.6 million people every year. New Mexico has a population of 1.8 million.
I live and I drive in New Mexico, a giant state, and I cannot help but think the
equivalent of the population of New Mexico is getting arrested in the United
States every single year. It's absolutely shocking. Out of those 1.6 million
arrests, there are 800,000 for marijuana, and half of those arrests involve
Hispanics. Are half the users of marijuana in the United States Hispanic? No,
yet half the arrest disproportionally fall on the Hispanic communities.
Given
that situation, what do we need to do? First, we need to legalize marijuana.
Second, we need to adopt harm reduction strategies with regard to all the other
drugs. Third, we need to move away from a criminal model to a medical model. [239]
Others
criticize current policy on the basis that black Americans are
disproportionately targeted in drug law enforcement. The group Human Rights
Watch notes in a 2000 study that Blacks comprise 62.7% and whites 36.7% of all
drug offenders admitted to state prisons, even though data confirms that this
racial disparity "bears scant relation to racial differences in drug
offending."[240]
Various experts also pointed out the harmful effect of drugs on law enforcement,
in particular Mr. Joseph McNamara, former chief of police of San Jose,
California, now retired, who noted that the corruption of civil servants will be
a serious problem as long as the current anti-drug policy remains in effect.[241]
Statistics
In
Chapter 6, we presented an overview of data on cannabis use. We round out
th description of the situation in the United States with a number of tables on
certain selected indicators.
Estimated Domestic U.S. Drug
Consumption (in Metric Tons)[242]
Year |
Cocaine |
Heroin |
Marijuana |
Methamphetamine |
1996 |
288 |
12.4 |
874 |
14.3 |
1997 |
312 |
13.1 |
960 |
11.9 |
1998 |
291 |
12.5 |
952 |
15.9 |
1999 |
276 |
12.9 |
982 |
15.5 |
2000 |
269 |
12.9 |
1,009 |
15.5 |
1997 National Household
Survey on Drug Abuse: Past Illicit Drug Use[243]
Respondent Age |
Ever Used |
Past Year |
Past Month |
12 – 17 |
23.7 % |
18.8 % |
11.4 % |
18 – 25 |
45.4 % |
25.3 % |
14.7 % |
26 – 34 |
50.8 % |
14.3 % |
7.4 % |
35 and over |
31.5 % |
6.1 % |
3.6 % |
1998 Drug Use
Amount High School Seniors[244]
Drug |
Ever Use |
Past Year |
Past Month |
Marijuana |
49.1 % |
37.5 % |
22.8 % |
Cocaine |
9.3 % |
5.7 % |
2.4 % |
Crack |
4.4 % |
2.5 % |
1 % |
Stimulants |
16.4 % |
10.1 % |
4.6 % |
LSD |
12.6 % |
7.6 % |
3.2 % |
PCP |
3.9 % |
2.1 % |
1 % |
Heroin |
2 % |
1 % |
0.5 % |
Drug Prices and Purity
Levels: Selected Years 1981-1998[245]
|
Purchase Amount |
1981 Price/Purity (per pure gram) |
1988 Price/Purity (per
pure gram) |
1996 Price/Purity (per pure gram) |
1997 Price/Purity (per pure gram) |
1998 Price/Purity (per pure gram) |
||||||
Cocaine |
|
|||||||||||
1
g or less |
$378.70/40.02% |
$218.33/75.99% |
$159.05$/72.5% |
$178.97/64.72% |
$169.25/71.23% |
|
||||||
10-100 g |
191.5/59.59% |
78.84/ 83.53% |
49.45/ 68.44p. cent |
45.58/67.05 |
44.30/65.92 |
|
||||||
Heroin |
|
|||||||||||
0.1
g or less |
3,114.80/4.69 |
2,874.19/19.22 |
2,175.88/23.95 |
2,114.97/25.24 |
1,798.80/24.29 |
|
||||||
1-10 g |
1,194.05/19.1 |
947.32/39.48 |
373.30/45.21 |
327.88/45.38 |
317.97/51.33 |
|
||||||
Marijuana |
|
|||||||||||
10
g or less |
$6.41 |
$12.50 |
$10.42 |
$10 |
$10.41 |
|
||||||
100-999 g |
2.75 |
3.41 |
2.95 |
2.63 |
2.59 |
|
||||||
National
Drug Control Budget[246]
Year |
Amount (in $US billions) |
1999 |
17.1 |
2000 |
17.9 |
2001 |
18.1 |
2002 |
19.2 |
Total Estimated Arrests and Drug Arrests, 1989-1999[247]
Year |
Total Arrests |
Arrests for all drug violations |
Distribution of arrests for drug violations |
|
||||||||||
Heroin/Cocaine |
Marijuana |
Other Drugs |
|
|||||||||||
Number |
Per-cent |
Sale |
Possession |
Sale |
Possession |
Sale |
Possession |
|
||||||
|
1989 |
14 340 900 |
1,351,700 |
.4 |
19.1 |
34.7 |
6.2 |
23.1 |
7.0 |
9.8 |
||||
|
1990 |
14 195 100 |
1,089,500 |
7.6 |
21.0 |
33.3 |
6.1 |
23.9 |
4.5 |
11.2 |
||||
|
1991 |
14 211 900 |
1,010,000 |
7.1 |
22.5 |
32.8 |
6.1 |
22.4 |
4.8 |
11.5 |
||||
|
1992 |
14 075 100 |
1,066,400 |
7.5 |
20.6 |
32.4 |
6.6 |
25.5 |
4.6 |
10.4 |
||||
|
1993 |
14 036 300 |
1,126,300 |
8.0 |
19.2 |
31.1 |
6.2 |
27.6 |
4.3 |
11.6 |
||||
|
1994 |
14 648 700 |
1,351,400 |
9.2 |
16.8 |
30.3 |
5.8 |
29.8 |
4.1 |
13.2 |
||||
|
1995 |
15 119 800 |
1,476,100 |
9.7 |
14.7 |
27.8 |
5.8 |
34.1 |
4.4 |
13.3 |
||||
|
1996 |
15 168 100 |
1,506,200 |
9.9 |
14.2 |
25.6 |
6.3 |
36.6 |
4.3 |
13.3 |
||||
|
1997 |
15 284 300 |
1,583,600 |
10.3 |
10.3 |
25.4 |
5.6 |
38.3 |
4.7 |
15.8 |
||||
|
1998 |
14 528 300 |
1,559,100 |
10.7 |
11 |
25.6 |
5.4 |
38.4 |
4.8 |
14.8 |
||||
|
1999 |
14 031 070 |
1,532,200 |
10.9 |
10 |
24.5 |
5.5 |
40.5 |
4.1 |
15.4 |
||||
Adults in Custody of State or
Federal Prisons or Local Jails, 1989-1999[248]
Year |
State Prisons |
Federal Prisons |
Total State & Federal Prisons |
Percent
of prisoners who are drug offenders |
Local Jails |
|
Federal |
State |
|||||
1989 |
629,995 |
53,387 |
683,382 |
49.9 |
19.1 |
395,553 |
1990 |
684,544 |
58,838 |
743,382 |
53.5 |
21.7 |
405,320 |
1991 |
728,605 |
63,930 |
792,545 |
55.9 |
21.3 |
426,479 |
1992 |
778,495 |
72,071 |
850,566 |
58.9 |
22.1 |
444,584 |
1993 |
828,566 |
80,815 |
909,381 |
59.2 |
22.1 |
459,804 |
1994 |
904,647 |
85,500 |
990,147 |
60.5 |
22.4 |
486,474 |
1995 |
989,004 |
89,538 |
1,078,542 |
59.9 |
22.7 |
507,044 |
1996 |
1,032,440 |
95,088 |
1,127,528 |
60.0 |
22.7 |
518,492 |
1997 |
1,059,588 |
99,175 |
1,176,922 |
62.6 |
20.7 |
567,079 |
1998 |
1,178,978 |
123,041 |
1,232,900 |
58.7 |
20.7 |
592,462 |
1999 |
1,209,123 |
135,246 |
1,366,369 |
57.8 |
Unavailable |
605,943 |
Correctional population
in the United States: selected statistics for 1997[249]
In 1997,
an estimated 5.7 million adult residents of the U.S. (or approximately 2.8% of
all U.S. adult residents) were under some form of correctional supervision.
Approximately 70% were supervised in the community, through probation or parole.
About 9.0% of black adults were under correctional supervision; for white
adults, the figure was 2.0% and for other races it totalled 1.3%.
Federal drug
prosecutions: selected statistics for 1999[250]
During
1999 U.S. attorneys initiated investigations involving 117,994 suspects. Of
these suspects, 32% were investigated for drug offences. Suspects in criminal
matters involving drug offences were more likely to be prosecuted in a U.S.
district court (77%) as opposed to suspects involved in violent offences (59%),
public order offences (53%) or property offences (50%). Of those convicted of
felony drug offences in federal court in 1999, 93% received prison sentences.
The average sentence of all offenders sentenced in federal court in 1999 was
57.8 months; for drug offenders, the average was 75.4 months.
DEA seizures of non-drug
property – 1997[251]
In
fiscal year 1997, the Drug Enforcement Agency made 15,860 seizures of
non‑drug property pursuant to drug forfeiture laws. The total value of
this property is estimated at $552 million.
Property Type |
Number of Seizures |
Value (in dollars) |
Cash |
8,123 |
284,680,029 |
Other financial instruments |
507 |
73,602,092 |
Real
property |
748 |
108,833,498 |
Vehicles |
3,695 |
47,379,874 |
Boats |
111 |
5,884,754 |
Aircraft |
24 |
8,945,000 |
Other
means of transportation |
172 |
1,734,731 |
Other |
2,480 |
1,734,731 |
[1] Those
reports, prepared by the Parliamentary Research Branch staff, concern
Australia, the United States, France, the Netherlands, the United Kingdom,
Sweden and Switzerland. Exact references appear in Appendix B.
[2] We
heard representatives of the United States, France, the Netherlands and
Switzerland.
[3] In
this section, we have drawn on a study report prepared by the Library of
Parliament: C. Collin, National
Drug Policy: France, Ottawa: Library of Parliament, 2001, report
prepared for the Senate Special Committee on Illegal Drugs.
[4] Law
No. 70‑1320 of December 31, 1970, respecting health measures
in the fight against substance abuse and repression of the trafficking in
and use of poisonous substances.
[5] I. Charras,
"L’État et les 'stupéfiants'" : archéologie d’une
politique publique répressive", in Drogue.
Du bon usage des politiques publiques. Les cahiers de la sécurité intérieure,
page 13.
[6] I. Charras,
op. cit., pages 15‑16.
[7] L. Simmat‑Durand,
"Les obligations de soins en France." in C. Faugeron, ed., Les
drogues en France. Politiques, marchés, usages. Paris: Georg éditeur,
1999, page 111.
[8] M. Setbon,
L’injonction thérapeutique. Évaluation
du dispositif légal de prise en charge sanitaire des usagers de drogues
interpellés. Paris: Observatoire français des drogues et des
toxicomanies, 2000, page 11.
[9] See
inter alia L. Simmat‑Durand, La lutte contre la toxicomanie. De la législation à la réglementation.
Paris: L’Harmattan, 2000; J. Bernat de Celis, Drogues :
Consommation interdite. Paris: L’Harmattan, 1996; and H. Bergeron,
Soigner la toxicomanie. Les dispositifs de soins entre idéologie et
action. Paris: L’Harmattan, 1996.
[10] Y. Bisiou,
"Histoire des politiques criminelles. Le cas des régies françaises
des stupéfiants.", in C. Faugeron, ed., Les drogues en France. Politiques, marchés, usages. Paris: Georg éditeur,
1999, page 89.
[11] Bisiou,
op. cit., page 90.
[12] See
Ms. Nicole Maestracci, President, Mission interministérielle de
lutte à la drogue et à la toxicomanie [Interministerial Mission for the
Fight Against Drugs and Drug Addiction], testimony before the Senate Special
Committee on Illegal Drugs, Senate of Canada, first session of the
thirty-seventh Parliament, October 1, 2001, Issue no. 7, page 9‑10.
[13] Michel Kokoreff,
"Politique des drogues en France, entre loi pénale et réduction des
risques", presentation to the Senate Special Committee on Illegal
Drugs, 2001.
[14] Henri Bergeron,
"Comment soigner les toxicomanes?" Sociétal, June‑July 1998, pages 45‑49.
[15] Mission
interministérielle de lutte contre la drogue et la toxicomanie (MILDT), Three‑Year
Plan to Combat Drug Use and Prevent Dependence 1999‑2001. Available online at: http://www.drogues.gouv.fr/uk/what_you_need/whatyouneed_intro.html.
[16] Mission
interministérielle de lutte contre la drogue et la toxicomanie (MILDT),
"An Information Booklet Summarising the Government's Plan for the Fight
Against Drugs and the Prevention of Addiction
1999‑2000‑2001", Drugs:
No More, Risk Less, MILDT, December 1999, page 7. Available online
at: http://www.drogues.gouv.fr/fr/index.html.
[17] Nicole Maestracci,
testimony before the Senate Special Committee on Illegal Drugs, page 13.
[18] Observatoire
français des drogues et des toxicomanies, Drogues
et dépendances. Indicateurs et tendances 2002. Paris: author, 2002,
page 291.
[19] Observatoire
français des drogues et des toxicomanies (OFDT), Drogues
et toxicomanies : indicateurs et tendances, 1999 Edition, page 20.
Available online
at: http://www.drogues.gouv.fr/fr/index.html.
[20] Observatoire
européen des drogues et des toxicomanies (OEDT)/European
Legal Database on Drugs (ELDD), France
Country Profile, French Drug Legislation. Available
online at: http://eldd.emcdda.org/databases/eldd_national_reviews.cfm?country=FR.
[21] Comité
consultatif national d’éthique, Rapports
sur les toxicomanies, rapport no 43, November 23,
1994, page 19. See:
http://www.ccne‑ethique.org/français/start.htm.
[22] OEDT/ELDD,
France Country Profile, 2001.
[23] Comité
consultatif national d’éthique, 1994.
[24] United
Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, December 19, 1988: Article 5,
Confiscation 1. Each Party shall adopt such measures as may be
necessary to enable confiscation of: (a) Proceeds derived from offences
established in accordance with article 3, paragraph 1, or property
the value of which corresponds to that of such proceeds; (b) Narcotic
drugs and psychotropic substances, materials and equipment or other
instrumentalities used in or intended for use in any manner in offences
established in accordance with article 3, paragraph 1.
[25] OEDT/ELDD,
France Country Profile, 2001.
[26] M. Pelletier,
Rapport de la mission d’étude sur
l’ensemble des problèmes de la drogue, Paris: La Documentation française,
1978.
[27] Centre
d’aide et d’accueil en toxicomanie (CAAT), La
mise en application de la loi. See: http://caat.multimania.com/info/app_loi.htm.
[28] OFDT,
1999, page 25.
[29] Ibid.
[30] Ibid., page 26.
[31] CAAT,
2001, page 3.
[32] OFDT,
1999, pages 26‑27.
[33] C. Trautmann,
Lutte contre la toxicomanie et le
trafic de stupéfiants. Report to the Prime Minister, Paris: La
Documentation française, 1990.
[34] Ibid., Annexe 10, pages 252 and 253.
[35] R. Henrion,
Rapport de la Commission de réflexion
sur la drogue et la toxicomanie. Report to the Minister of Social Affairs, Health and Cities, Paris: La
Documentation française, 1995.
[36] Ibid., pages 82‑83.
[37] Ibid., page 83.
[38] Ibid., page 89.
[39] B. Roques,
La dangerosité des drogues.
Paris: Odile Jacob, 1995.
[40] Reynaud,
M. et al., (1999) Les pratiques
addictives. Usage, usage nocif et dépendance aux substances psychoactives.
Paris : Secrétariat d’État à la Santé et aux Affaires sociales.
[41] INSERM,
Cannabis : Quels effets sur le
comportement et la santé? Paris: author, 2001.
[42] Observatoire
français des drogues et des toxicomanies, Drogues
et toxicomanies : indicateurs et tendances, 1999 Edition. Available
online at: http://www.drogues.gouv.fr/fr/index.html.
[43] OFDT,
1999, pages 62 and 63.
[44] Ibid., page 83.
[45] Ibid., page 82‑84.
[46] OFDT,
2002, page 96.
[47] OFDT,
1999, page 64.
[48] Ibid., page 112 and 113. It should be noted that release refers
to many situations and does not imply that prosecution does not go forward.
Some may subsequently be convicted upon being summoned to court.
[49] Ibid., page 112.
[50] Ibid.,
page 114.
[51] Ibid., page 164 and 165.
[52] OFDT,
1999, page 121‑123.
[53] This
section draws largely on the research report prepared for the Committee by
the Library of Parliament: B. Dolin, (2001) National
Drug Policy: The Netherlands. Ottawa: Library of Parliament, prepared
for the Senate Special Committee on Illegal Drugs; available online at www.parl.gc.ca/illegaldrugs.asp.
[54] Canadian
Police Association, Brief to the Senate Special Committee on Illegal Drugs,
May 28, 2001.
[55] Brief
of Dr. Colin Mangham, Consequences
of the Liberalization of Cannabis Drug Policy, September 17, 2001.
[56] H. Martineau
and É. Gomart, Politiques et expérimentations
sur les drogues aux Pays‑Bas. Rapport de synthèse. Paris: OFDT,
2000, page 44.
[57] M. De
Kort, "A Short History of Drugs in the Netherlands", in E Leuw
and I. Haen Marshall, eds., Between
prohibition and legalization. The Dutch experiment in drug policy. Amsterdam:
Kugler, 1994, page 11.
[58] Tim Boekhout
van Solinge, testimony before the Senate Special Committee on Illegal Drugs,
Senate of Canada, first session of the thirty-seventh Parliament, 19
November 2001, Issue 11, page 53‑54.
[59] "Drug
Policy in the Netherlands", Government of the Netherlands, available
online at: http://www.netherlands‑embassy.org/c_hltdru.html.
[60] Boekhout
van Solinge, "La Politique de drogue aux Pays‑Bas: un essai de
changement", Déviance et Société,
Vol. 22, page 69‑71.
[61] C.D. Kaplan
et al., "Is Dutch Drug Policy
an Example to the World?" in Leuw and Marshall, eds., op. cit.
[62] In
the Netherlands, public and private agencies have jurisdiction over mental
health based on political affiliation and religious denomination. The
National Federation of Mental Health Organizations was a coordination
agency.
[63] Louk Hulsman,
Ruimte in het drugbeleid, Boom Meppel,
1971, page 5, mentioned in Peter Cohen, "The case of the two
Dutch drug policy commissions: An exercise in harm reduction
1968‑1976" (1994, revised in 1996), Article presented to the 5th
International Conference on Drug Harm Reduction, March 7‑11,
1994, Addiction Research Foundation, Toronto, available online at: www.cedro‑uva.org/lib/cohen.case.html.
[64] In
Peter Cohen, "The case of the two Dutch drug policy
commissions", supra, page 3.
[65] Working Party, Department of Justice, The Hague, 1972.
[66] Interdepartmental
Task Force on Drugs and Alcohol, The Hague: Department of Justice, 1985.
[67] Department
of Foreign Affairs (1995), Continuity
and Change. 1995. The report is available online at: www.drugtext.org/reports/wvc/drugnota/0/drugall.htm.
[68] As noted in the section on current legislation, this reduced
limit is now in effect.
[69] As noted in the section on current legislation, trials began
in 1998.
[70] This concern was addressed subsequent to the Report by the
"Damocles bill" of 1999, discussed herein, which provides greater powers to municipalities
to shut down coffee shops that are a local nuisance.
[71] M. Grapendaal,
E. Leuw and H. Nelen, A
World of Opportunities: Life‑Style and Economic Behaviour of Heroin
Addicts in Amsterdam. New York, S.U.N.Y. Press, 1995, mentioned in T. Boekhout
van Solinge, "Dutch Drug Policy in a European Context", Journal
of Drug Issues Vol. 29, No 3, 1999, page 511. Available online at: www.cedro‑uva.org/lib/boekhout.dutch.html.
[72] 100,000
Dutch florins = approximately C$63,000.
[73] Source:
Staatscourant (1996) in D.J. Korf and H. Riper, "Windmills in
Their Minds? Drug Policy and Drug Research in the Netherlands", Journal of Drug Issues , Vol. 29, No. 3, 1999, page 451,
Table 2.
[74] In
addition to imprisonment, penalties sometimes include fines and property
seizures (except for possession).
[75] For repeat offences within five years, the required
penalty is increased by one-quarter. As to sales to "vulnerable
groups" (that is to say to minors, psychiatric patients), a minimum
fine of approximately Cdn $475 is also levied.
[76] Quantities greater than 1 kg are considered as
suggesting drug trafficking.
[77] Dr. Robert Keizer,
The Netherlands’ Drug Policy.
Brief to the Senate Special Committee on Illegal Drugs, November 19,
2001.
[78] National
Drug Monitor, "Fact Sheet: Cannabis Policy, Update 2000", Trimbos
Institute, 2000.
[79] Martineau
and Gomart, op.cit., page 85,
for the quotation and preceding information.
[80] We
have reproduced this table in its original format, thus we do not have the
capacity to change text to English ; "déjà utilisé" means
ever used, and "usage récent" means recent use.
[81] Caballero
and Bisiou (2000), op. cit., page 770‑772.
[82] This
section draws largely on the research report prepared for the Committee by
the Library of Parliament: G. Lafrenière, (2001) National
Drug Policy: United Kingdom. Ottawa: Library of Parliament, prepared for
the Senate Special Committee on Illegal Drugs; available online at www.parl.gc.ca/illegaldrugs.asp.
[83] Tackling Drugs to Build a Better Britain.
[84] "Drug
Laws: the debate nobody wants", The
Guardian, May 14, 2001.
[85] Police
Foundation (2000) Report of the
Independent Inquiry into the Misuse of Drugs Act 1971, "Drugs and
the Law", Chapter 7, paragraphs 28, 29 and 31.
[86] House
of Lords, Select Committee on Science and Technology, Ninth Report, Session
1997‑98, Cannabis: The
Scientific and Medical Evidence, para. 2.6.
[87] Ibid., par. 4.1.
[88] Ibid., par. 5.1.
[89] Ibid., par. 8.16.
[90] Ibid., par. 8.17.
[91] House
of Lords, Select Committee on Science and Technology, Therapeutic
Uses of Cannabis, Second Report, March 14, 2001, par. 29.
[92] Report of the Independent Inquiry into the Misuse of Drugs Act 1971,
Drugs and the Law, Mars 2000, page 74.
[93]
Ibid., Chapter 2, par. 64.
[94] Joseph
Rowntree Foundation, Drugs: dilemmas,
choices and the law, November 2000. This article may be found at http://www.jrf.org.uk/knowledge/findings/foundations/N70.asp.
[95] Tackling Drugs to Build a Better Britain, The Government’s Ten‑Year Strategy for Tackling Drugs Misuse,
April 1998, in the chapter entitled: "Resourcing and Managing the
Work".
[96] DrugScope,
UK Drug Situation 2000. The
UK Report to the European Monitoring Centre for Drugs and Drug Addiction,
November 2000, page 7.
[97]
Ibid., page 11‑12.
[98]
"The Untouchables", Economist,
April 21, 2001, Vol. 359, No. 8218, page 49.
[99] This
section draws to a large degree on the report prepared for the Committee by
the Library of Parliament: G. Lafrenière, (2001) National
Drug Policy: Sweden. Ottawa: Library of Parliament, report prepared for
the Senate Special Committee on Illegal Drugs, available online at www.parl.gc.ca/illegaldrugs.asp.
For more information, see also T. Boekhout van Solinge,
(1997) The Swedish Drug Control
System: An in‑depth review and analysis, Centre for Drug Research,
University of Amsterdam, Amsterdam, 1997.
[100] European
NGO Council on Drugs and Development, A
Snapshot of European Drug Policies : Report on the state of drug policies in
12 European countries, October 2001, page 27.
[101] United
Nations Office for Drug Control and Crime Prevention, Country
Drug Profile : Sweden, 1998, page 1.
[102]
Boekhout van Solinge, op. cit.,
page 45.
[103]
European NGO Council on Drugs and Development, op.
cit., page 27.
[104]
Boekhout van Solinge, op. cit.,
page 88.
[105]
Ibid., page 116‑117.
[106]
Ibid., page 103.
[107] Ministry
of Health and Social Affairs, National
Action Plan on Narcotic Drugs, Fact Sheet, February 2002.
[108]
Boekhout van Solinge, op. cit.,
page 165.
[109]
Ibid., p 125.
[110]
Ibid., page 162.
[111]
Ibid., page 129.
[112] European
Monitoring Centre for Drugs and Drug Addiction, Country
Profiles – Sweden, European Legal Database on Drugs, 2001.
[113]
Ibid., page 177.
[114]
Boekhout van Solinge, op. cit.,
page 15.
[115]
N. Dorn and A. Jamieson, European
Drug Laws: the Room for Manoeuvre, London: DrugScope, 2001, page 188.
[116]
Ibid., page 206.
[117]
Ibid., page 190.
[118]
Ibid., page 191.
[119]
European Monitoring Centre for Drugs and Drug Addiction, op.
cit.
[120] National
Institute of Public Health, National
Report: Sweden 2001, Stockholm, December 2001, page 14.
[121]
Boekhout van Solinge, op. cit.,
page 172‑173.
[122] The
Swedish Commission on Narcotic Drugs, Summary
of the report The Crossroads from the Swedish Commission of Narcotic Drugs,
Sweden, 2000.
[123]
Ibid.
[124] The
following information is based on the European Monitoring Centre for Drugs
and Drug Addiction, National Report
– Sweden 2001, op. cit.,
page 15.
[125] The
information in the following section is based on the United Nations Office
for Drug Control and Crime Prevention, Country
Drug Profile – Sweden, op. cit.,
page 12.
[126]
OEDT, National Report – Sweden 2001, op.
cit.
[127]
Boekhout van Solinge, op. cit.,
page 138.
[128]
United Nations Office for Drug Control and Crime Prevention, op.
cit., page 9.
[129]
National Report 2001, page 27.
[130] This
section draws to a large degree on the report prepared for the Committee by
the Library of Parliament: C. Collin, (2002) National
Drug Policy: Switzerland. Ottawa: Library of Parliament, report prepared
for the Senate Special Committee on Illegal Drugs, available online at www.parl.gc.ca/illegaldrugs.asp.
[131]
This term is used to designate the federal state.
[132]
Yan Boggio et al., (1997) Apprendre à gérer : La politique suisse en matière de drogue,
Geneva: Georg, 1997.
[133]
Ibid., page 38.
[134] Swiss
Federal Office of Public Health, The
Swiss Drug Policy, September 2000, available online at http://www.bag.admin.ch/sucht/f/index.htm.
[135] Swiss
Federal Office of Public Health, Mesures
fédérales pour réduire les problèmes de la drogue, Basic document of
the Federal Office of Public Health, decision of the Federal Council of
February 20, 1991, Doc. no. 3.4.1f.
[136] The
acronym "MaPaDro" was used to refer to the program of federal
measures for the period 1990‑1996. The acronym "ProMeDro" is
used to refer to the program of federal measures for the period
1997‑2002. To avoid confusion, "ProMeDro" is used
throughout.
[137] Swiss
Federal Office of Public Health, Programme
de mesures de santé publique de la Confédération en vue de réduire les
problèmes de drogue (ProMeDro)
1998‑2002, October 1998.
[138] M.F. Aebi,
Martin Killias and Denis Ribeau, "Prescription médicale de
stupéfiants et délinquance : Résultats des essais suisses", Criminologie,
Vol. 32, no. 2, 1999, page 127‑148; see also the testimony
of Professor Ambros Uchtenhagen, Senate Special Committee on Illegal
Drugs, Senate of Canada, first session of the thirty-seventh Parliament,
February 4, 2002, Issue 13.
[139] For
more information on this initiative, see the Youth Without Drugs Web site at
http://www.jod.ch/f_fr_index.htm.
[140]
For more information on this initiative, see the DroLeg Web site at www.droleg.ch.
[141] Swiss Federal Office of Public Health (2000), op. cit., page 10.
[142] See
the testimony of the Chief of the Zurich Criminal Police, Senate Special
Committee on Illegal Drugs, Senate of Canada, first session of the
thirty-seventh Parliament, February 4, 2002, Issue 13.
[143]
Boggio et
al., 1997, op. cit., page 75‑80.
[144] Federal
Office of Public Health (1998), op.
cit., page 5.
[145] The
EMCDDA coordinates a network of 15 information centres, or national
focal points, located in each of the member states. For more information,
visit the EMCDDA Web site at http://www.emcdda.org/mlp/ms_fr‑4.shtml.
[146] The
Conference of Canton Delegates usually meets four times a year. It
coordinates drug addiction measures, establishes an annual program and
priority catalogue, ensures the exchange of information, debates and adopts
positions and responds to consultations, defines and discusses related
issues and provides development sessions. See http://www.infoset.ch/inst/kkbs/f‑statuten.html
(in French). The National Committee consists of representatives from the
cities, cantons and the Confederation. Its role is to provide
follow‑up on implemented measures and ensure that those measures are
harmonized.
[147] Federal
Office of Public Health (1998), op.
cit., page 6‑7.
[148]
Ibid., page16.
[149] Ibid.,
page 16‑17.
[150] Federal
Office of Public Health, The Swiss
drug policy: A fourfold approach with special consideration of the medical
prescription of narcotics, 1999, page 7.
[151]
Boggio et al., 1997, op. cit.,
page 19.
[152] Ibid.,
page 18‑19.
[153]
Ibid., page 20‑21.
[154] Ibid.,
page 21.
[155]
Swiss Federal Council, Message
concernant la révision de la loi sur les stupéfiants, March 9,
2001.
[156] Loi fédérale sur les stupéfiants et les substances psychotropes,
October 3, 1951 (as of November 27, 2001) available on line at http://www.admin.ch/ch/f/rs/812_121/index.html#fn1.
[157] New
name of the therapeutic products agency, in effect since January 1,
2002.
[158] See
testimony of Ms. Diane Steber Büchli, Swiss Federal Office
of Public Health, before the Senate Special Committee on Illegal Drugs,
Senate of Canada, first session of the thirty-seventh Parliament, February 4,
2002, Issue 13.
[159] Swiss
Federal Council, Message concernant la
révision de la loi sur les stupéfiants, 2001, page 3554‑3555.
[160]
Ibid., page 3560. We further discuss this issue in Chapter 21.
[161]
Ibid., page 3540.
[162]
Ibid., page 3556.
[163]
Ibid., pp. 3596‑3597.
[164]
Ibid., p. 3598.
[165]
Ibid., p. 3600.
[166]
The findings of one of the experts consulted are presented in Chapter 19
above.
[167]
Federal Council, ibid., page 3621.
[168] Federal
Court, L’organisation judiciaire en
Suisse, available online in French at: http://www.bger.ch/index.cfm?language=french&area=Federal&theme=system&page=content&maskid=195
[169] Federal
Office of Police, Un aperçu de
l’OFP, available online in French at http://www.bap.admin.ch/f/index.htm.
[170] Federal
Office of Police, Exploitation définitive
de la banque de données en matière de drogue DOSIS, June 26,
1996, available online in French at http://www.bap.admin.ch/f/index.htm.
[171] Federal
Office of Police, Situation Suisse :
Rapport de situation 2000, Analysis and Prevention Service, 2001,
available online in French at http://www.bap.admin.ch/f/index.htm.
[172] Ibid.,
page 7.
[173] According
to the Federal Office of Police press release, Thai pills contain
metamphetamine, and their structure closely resembles that of ecstasy. They
come from Thailand, where they go by the name of "Yaba" (drug that
makes you go crazy). The tablets bear the letters "WY" and smell
like vanilla. The substance is usually smoked, using a sheet of aluminium,
or absorbed. The risk of addiction among people absorbing the product by
smoking it is at least three times greater than among ecstasy users. This
drug is a powerful stimulant with effects comparable to those of crack, but
longer lasting. These pills may result in irreparable physical and mental
damage (loss of memory, depression). They may also cause paranoid
hallucinations and violent fits and create psychological dependence faster
than ecstasy.
[174] Federal
Office of Public Health, 2000, op.
cit., page 17‑37.
[175]
Ibid., page 18‑19.
[176] Ibid.,
page 20‑23.
[177] This
section draws to a large degree on the report prepared for the Committee by
the Library of Parliament: R. MacKay, (2001) National
Drug Policy: Australia. Ottawa: Library of Parliament, report prepared
for the Senate Special Committee on Illegal Drugs, available online at www.parl.gc.ca/illegaldrugs.asp.
[178] For
a history of the laws relating to cannabis in Australia, see: McDonald et
al., Legislative Options for
Cannabis Use in Australia, Commonwealth of Australia, 1994, available
online at: http://www.druglibrary.org/schaffer/Library/studies/aus/cannabis.htm.
[179] South
Australian Government, Royal Commission of Inquiry into the
Non‑Medical Use of Drugs South Australia 1979, Final
Report (Chairperson: Sackville).
[180] For
an outline of the National Drug Strategy from 1985 to the present, see: http://www.aic.gov.au/research/drugs/strategy/index.html.
[181] See
Eric Single and Timothy Rohl, The
National Drug Strategy: Mapping the Future, A Report commissioned by the
Ministerial Council on Drug Strategy, Canberra, April 1997. Available online
at: http://www.health.gov.au/pubhlth/publicat/document/mapping.pdf.
[182] Ministerial
Council on Drug Strategy, National
Drug Strategic Framework 1998‑99 to 2002‑03: Building
Partnerships, Prepared for the Ministerial Council by a joint steering
committee of the Intergovernmental Committee on Drugs and the Australian
National Council on Drugs, Canberra, November 1998. Available online at: http://www.health.gov.au/pubhlth/nds/resources/publist.htm.
[183] For further details on the National
Illicit Drug Strategy, see the Australian Department of Health and
Aged Care Web site: http://www.health.gov.au/pubhlth/strateg/drugs/illicit.
[184] For
further information, see: Ministerial Council on Drug Strategy, National
Action Plan on Illicit Drugs, 2001 to 2002‑03, Prepared by the
National Expert Advisory Committee on Illegal Drugs, Canberra, July 2001.
Available online at: http://www.health.gov.au/pubhlth/nds/resources/publist.htm.
[185] See
testimony of Professor Eric Single before the Senate Special Committee on
Illegal Drugs, Senate of Canada, first session of the thirty-seventh
Parliament, May 2001. Available online at: www.parl.gc.ca/drogues‑illicites.asp.
[186]
Ibid.
[187] The
illegal drug legislation in effect in the states and territories may be
consulted online at: http://www.aic.gov.au/research/drugs/context/legislation.html.
[188] For
more information on Australian drug laws, see David Brereton, "The History
and Politics of Prohibition", in Drugs
and Democracy, supra.
[189] For
further details on Australian drug courts, see: http://www.aic.gov.au/research/drugs/context/courts.html
[190] For
further details on this topic, see: Eric Single, Paul Christie and
Robert Ali, "The Impact of Cannabis, Decriminilisation in
Australia and the United States", Journal
of Public Health Policy, 21,2, Summer 2000, page 157‑186.
Available online at: /37/1/parlbus/commbus/senate/Com‑f/ille‑f/presentation‑f/single‑f.htm.
[191] For
a fuller discussion of the legislative possibilities concerning cannabis,
see McDonald et al.., Legislative Options for Cannabis Use in Australia, supra.
[192] Single,
Christie, and Ali, supra, Notes 3,
11, 12, 18, 19 and 50. See also Maurice Rickard, Reforming
the Old and Refining the New: A Critical Overview of Australian Approaches
to Cannabis, Department of the Parliamentary Library, Information and
Research Services, Research Paper No. 6 2001‑02, 2001, page 29.
Available online at: http://www.aph.gov.au/library
(listed under Research Papers).
[193] Rickard,
op. cit., page 30.
[194] National
Drug Research Institute, Curtin University of Technology, The
Regulation of Cannabis Possession, Use and Supply, A discussion document
prepared for the Drugs and Crime Prevention Committee of the Parliament of
Victoria, Perth, Western Australia, 2000, page xxxiv.
[195] Ibid., page xxxiii.
[196]
Rickard, op. cit.,, page 33.
[197] Robert Ali
et al., The Social Impacts of the Cannabis Expiation Notice Scheme in South
Australia, Department of Health and Aged Care, Canberra, May 1998.
Available online at:
http://www.health.gov.au/pubhlth/publicat/drugs.htm.
[198] John Broome,
"Impacts Upon Social and Political Life", in Drugs and Democracy, op. cit.,
page 117.
[199] Ibid., page 117.
See also: Adam Sutton and Stephen James, "Law Enforcement and
Accountability", in Drugs and
Democracy, op. cit., page 163,
where an estimate of AUD $404 million is given for the annual cost to
the Commonwealth, States and Territories of enforcing laws against illicit
drugs.
[200] Broome,
supra, page 117.
[201] Ibid.,
page 118.
[202] This
figure includes costs associated with the use of alcohol and tobacco. See
Timothy Rohl, "Evaluating the National Drug Strategy", in Drugs and Democracy, supra,
page 134.
[203]
The Regulation of Cannabis Possession, Use and Supply, supra,
page 40.
[204]
Ibid., page 40‑43.
[205] Megge
Miller, and Glenn Draper, Statistics
on Drug Use in Australia 2000, Australian Institute of Health and
Welfare, Canberra, May 2001. Available online at: http://www.aihw.gov.au/publications/phe/sdua00/index.html.
[206] For
detailed results of the 1998 NDSHS, see: Pramod Adhikari and Amber Summerill,
1998 National Drug Strategy Household
Survey: Detailed Findings, Australian Institute of Health and Welfare
(Drug Statistics Series No. 6), Canberra, October 2000. Available
online at:
http://www.aihw.gov.au/publications/index.cfm/title/6243.
[207]
Miller and Draper, supra, page
53‑58.
[208] This
section draws to a large degree on the report prepared for the Committee by
the Library of Parliament: B. Dolin, National
Drug Policy: United States. Ottawa: Library of Parliament, 2002, report
prepared for the Senate Special Committee on Illegal Drugs, available online
at www.parl.gc.ca/illegaldrugs.asp.
[209] In
David P. Currie, The
Constitution of the United States: A Primer for the People, Chicago:
University of Chicago Press, page 26.
[210]
17 U.S. 316.
[211] See
Steven R. Belenko, ed., Drugs
and Drug Policy in America: A Documentary History, Westport: Greenwood
Press, 2000; Joseph D. McNamara, "Commentary: Criminalization
of Drug Use" Psychiatric Times;
Vol. XVII(9) Psychiatric Times;
Luna, Erik Grant, "Our Vietnam: The Prohibition Apocalypse",
(1997) 46 Depaul L. Rev. 483. Stephen B. Duke,
"Commentary: Drug Prohibition: An Unnatural Disaster", (1995) 27 Conn.
L. Rev. 571).
[212] United States v. Doremus (1919), 249 U.S. Reports 86. The Harrison
Act was again upheld as a revenue measure in United
States v. Nigro (1928), 276 U.S. Reports 332.
[213] Webb et al. v. United States
(1919), 249 U.S. Reports 96.
[214]
United States v. Behrmann (1922), 258 U.S. Reports 280.
[215]
See Luna, supra, page
490‑495.
[216]
Comprehensive Drug Abuse Prevention and Control Act of 1970, Title II, 21
U.S.C., ss. 800‑966.
[217] Congress
need merely find that a class of activity affects interstate commerce to
enact criminal penalties; no proof is required that the conduct involved in
a single prosecution has an effect on commerce: see Ehrlich, Susan,
"The Increasing Federalization of Crime" (2000) 32 Ariz.
St.L.J.825.
[218]
The Office's home page can b e found at www.whitehousedrugpolicy.gov.
[219] See,
for example, Craig Reinarman and Harry G. Levine, eds., Crack in America: Demon Drugs and Social Justice, University of
California Press, September 1997. The organization Human Rights Watch in a
May 2000 report on the United States referred to the phenomenon as a
"moral panic" (available online at www.hrw.org/reports/2000/usa).
[220] Department
of Justice, Drug Enforcement Agency, "Notice: Denial of Petition",
April 18, 2001, in Vol. 66, No. 75 of the Federal Register,
page 20037‑20076.
[221] Arkansas,
California, Colorado, Georgia, Hawaii, Illinois, Indiana, Louisiana,
Michigan, Oklahoma, South Carolina, South Dakota, Utah and the U.S. Virgin
Islands.
[222] Congress
has passed various anti‑crime bills that include drug‑related
provisions, including the Crime
Control Act of 1984 (P.L. 98‑473), the Anti‑Drug
Abuse Act of 1986 (P.L. 99‑570), the Anti‑Drug Abuse Act of 1988 (P.L. 100‑690), the Crime
Control Act of 1990 (P.L. 101‑647) and the Violent
Crime Control and Law Enforcement Act of 1994 (P.L. 103‑322).
Collectively, these Acts enhanced drug-related penalties and provided new
funding for drug control activities.
[223] Source:
Charles Doyle, Drug Offences:
Maximum Fines and Terms of Imprisonment for Violation of the Federal
Controlled Substances Act and Related Laws, Library of Congress
Congressional Research Service, November 1, 2000.
[224] A
second offence is one committed after a prior conviction for any
felony drug offence under any
federal, state or foreign drug law.
[225] Distribution
of a small amount of marijuana for no remuneration is treated as simple
possession, the penalties for which are contained in the second chart.
[226] A
prior conviction includes conviction of any
offence under the Controlled
Substances Act or any State drug law.
[227] The
Uniform Laws Annotated, Master Edition, Volume 9, Parts II,
III and IV, provides annotation materials for the adopting states. Under the
heading "General Statutory Note", those jurisdictions that have
based their drug legislation on the Uniform
Act are stated to have substantially adopted the major provisions of the
Uniform Act, but the official text of the State Act "departs
from the official text in a such manner that the various instances of
substitution, omission, and additional material cannot be clearly indicated
by statutory notes." As such, it is recommended that recourse be had to
the individual State legislation for specific details for the individual
CSA. Another useful reference is Richard A. Leiter, ed., National Survey of State Laws, 3rd Ed., Detroit: Gale
Group, 1999, which, at pages 152‑188, provides charts that set
out specific offences and penalties for cocaine, heroin and marijuana in all
States.
[228]
Appendix 2 of the report by B. Dolin, op.
cit., states the main alternatives.
[229]
No. 00‑151. Argued March 28, 2001 – Decided May 14,
2001. Cited as: 532 U.S. __ (2001).
[230] An
"affirmative defence" requires the defendant to prove on a balance
of probabilities that he or she is in compliance with the statute.
[231] The
"choice of evils" deference refers to the defence of medical
necessity. Long recognized in common law, a defendant is provided the
opportunity to prove in court that his or her violation of the law was
necessary to avert a greater evil; the pain of a debilitating disease or
condition in the case of medical marijuana. Certain states, as noted in the
chart, have codified the defence.