Drug Courts: A cause for celebration or a misguided attempt at progress?

In 1989 the first known drug treatment court was established in Miami in response to a crack epidemic. Two decades later, such courts are widespread across the US, offering treatment instead of prison time to some defendants arrested for drug-related felonies. Who is offered treatment is entirely at the discretion of the judge and defendants are usually required to plead guilty in order to be considered. Those who are offered and accept treatment are routinely drug tested throughout the process. Additionally judges can reward or punish the behaviour of those in treatment; incentives used includes certificates, cards and applause from the courtroom while sanctions include admonishments, assigned essays and, disturbingly, increased drug testing and court appearances or even a few days in jail.

This year, according to the National Association of Drug Court professionals, 120,000 people will be tried in 2734 drug courts spread across all 50 states. The question of whether these courts are a step in the right direction, towards viewing drug addiction through the sphere of public health as opposed to criminality, has never been so pertinent. 

The clear positive aspect of this model is that less people are going to prison for drug offences. Many people convicted for non-violent drug-related offences are offered an opportunity to reclaim their lives and access the treatment they need. It is also worth celebrating that people under this model can be saved from needless incarceration and that fewer families will be arbitrarily separated as a result of this.

A reported 75% of people who complete the drug court programme are not arrested again for 2 years. This also means that one in every four is, usually for another drug-related offence. Judges acknowledge that relapse is extremely common for an individual fighting an addiction, and the role of a strong support network along the road to recovery cannot be emphasized enough. Given that drug courts appear to subscribe to a model of addiction that allows for relapse, it is odd that relapse is punished and treated as ‘non-compliance’. Could it be that the pressure of an environment in which failing to complete the program successfully could result in incarceration is not conducive to effectively battling an addiction? Perhaps being publicly admonished in a courtroom in front of others who are in treatment, being given a telling off at the point when support and compassion are most needed, is not the best incentive to give up drugs. The use of a few nights in jail as a sanction is an incredibly irresponsible part of any treatment program and can only be a means by which to satisfy the public’s desire to see criminals punished. Given the high levels of stress, helplessness and guilt often associated with attempted recovery, especially in the first year, an experience as stressful as being given jail time, even for only a few nights, could easily push someone back into relapse. It is also likely that not everyone successfully completing ‘treatment’ is addicted to drugs: given that some people have been offered treatment as opposed to sentencing for the crime of possession, it is probable that some recreational users have accepted treatment as preferable to jail. The success rate with genuine addicts would therefore be lower than 75% in reality.

The figure of 75% becomes even less impressive when we consider that a meta-analysis by Latimer, Morton-Bourgon and Chrétien indicates that 45% of those admitted to treatment via drug courts drop out. It is likely that these 45% who are let go by the treatment system are in fact the most in need. What happens to them instead is that they face jail time and, often, an increased sentence for ‘non-compliance’ with the treatment. The drug courts’ treatment program fails nearly half of those attending. The International Drug Policy Consortium claims that judges are biased towards those who are perceived as ‘easy’ cases; in their eagerness to prove that the increased federal funding is justified, judges choose cases in which they believe the individual has the greatest chance of success under the minimum financial and institutional effort. This systematically excludes the most problematic users who are the most in need of help.

The problem with an arrangement that twins principles of treatment and punishment is that it cannot deliver treatment effectively. The drug court is first and foremost an instrument of the law, and therefore treatment is compromised because the program is still a part of the justice system, and the punitive element will always dominate this arrangement.

There is a huge tension between the act of sending someone who is in court for a drug-related felony to a treatment program and sending anyone failing this program to prison. While judges apparently understand that ‘relapse is part of addiction’, and try to accommodate this, individuals who are unable to do what the court asks of them, including abstaining from drugs, are let go from the program and are incarcerated. If the court recognizes, at the point at which treatment is offered as an alternative to prison, that an individual’s criminality derives solely from their dependence on drugs and that they need and deserve help, how then do they justify punishing those addicts who fail the program and are surely the most in need by forcing them to carry out a prison sentence? 

Most drug users are not problematic drug users. However, for those who are, it is important to ask ourselves, why did it take choosing treatment over prison for these people to receive help? Why were these people allowed to find themselves in court – in some cases for stealing to fund their addiction – and be processed by the legal system before they could be identified and helped by a health professional? The illegality of certain drugs, as well as the media's perpetuation of the stereotype of drug users as feckless and incompetent, stigmatises those who use them, including and especially those who are addicted.

Public antipathy towards people who are dependent on drugs is widespread, and this is fuelled by irresponsible and offensive media reporting. Stigmatising language such as ‘junkie’ is used in the media as bywords for social deviance; their effect is to dehumanize the subject, reducing the sum of a person’s character to their drug use. This heavily perpetuated stigmatisation can make it extremely difficult for an individual to admit to their doctor, their family or even themselves that their drug use is no longer recreational and has become problematic. The specific stigma associated with illegal drug use, on top of the more generalised stigma towards seeking help that exists in capitalist Western societies, means that many individuals who need professional help are not getting it. Attempts to recover from an addiction without the professional help of any kind can be incredibly dangerous if an individual decides to go cold-turkey and suffers the effects of a sudden withdrawal. In addition to the social stigma, many drug users are denied or have restricted access to healthcare. The fear of judgement and arrest deters the hardest-to-reach individuals from seeking treatment. The lack of empathy by many hospital staff towards drug users further exacerbates this. 

To this extent, the existence of drug courts is a good thing, because many people who may not have otherwise sought help are offered treatment. However, there is also a risk that drug courts can increase the stigmatisation associated with drug use, and specifically with those who are in rehabilitation from drug addiction. The fact that the treatment is accepted only to avoid prison unavoidably links treatment with punishment in an unhealthy way. People in this treatment program are made to attend court frequently, and  one of the punishments handed out for ‘non-compliance’ is having to attend court more often. This is creates an environment in which recovering addicts feel like they are there to be punished more than helped. Moreover, in wider society, if people see judges handing out treatment programs as sentences, this can only further entrench the stigma attached to all people in recovery from drug addiction, whether voluntary or not.

Another problem with the treatment program offered by drug courts is the metric by which they measure success. Due to prohibitionist drug laws, these treatment programs are abstinence-only. Many people fail at abstinence and, surely, a harm reduction program of treatment would be preferable to incarceration?

Furthermore, it's interesting to look at who benefits from the massive amounts of discretion given to judges in deciding who should be offered treatment. Despite the fact that there is almost no difference in drug use between Black and White people in the US, Black people are over 10 times more likely to be imprisoned for a drug offence than White people. African Americans are more significantly more likely to be stopped and searched, arrested and prosecuted for drug-related offences than people of any other race in the US. The NYCLU report that Black people and Latinos combined make up 90% of those imprisoned in New York for drug offences. Most illegal drug users in New York are White.

Surely then, if the judges exhibit no institutional racism, and 90% of those tried in court for drug-related offences are African-American, then around 90% of people going into treatment should also be African-American. However, figures from the Brooklyn Drug Treatment Court show that this is not the case: 75-80% of people tried in this court are Black, 15% Latino and 10% White, yet Black people are at least 30% more likely than White people to be expelled from drug court than White people being tried for the same offence. 

It appears that when judges are allowed large margins of discretion, the same institutional racism that poisons much of the justice system at the level of ‘random’ stop-and-searches, and at the level of detainment and arrest, is apparent in the court room. Given the close correlation that still exists between race and class in the US, and given that richer individuals can afford to deal with a struggle with addiction in a private setting, the all too familiar treatment of African Americans within the drug courts seems even more pernicious.

While it is tempting to celebrate the expansion of drug courts as a progressive step towards a more tolerant attitude to drug use, the reality is far removed from this image. In reality, drug courts are just as rife with institutionalised racism as much of the justice system, focus narrowly on those who are the least in need of help, and take a punitive attitude to recovery because they are, by necessity, bound up with the criminal justice system.

The war on drugs: time to count the costs to women

The below post is reproduced from the Count the Costs blog. 


Given that today is International Women’s Day, it seems an appropriate time to highlight the fact that the war on drugs has disastrous effects for not only men, but women too. The below extract is taken from the Count the Costs stigma and discrimination briefing, and outlines the particular ways in which the drug war causes undue suffering to women across the globe. (See the full briefing for references.) If you work for, or are a member of, an organisation that promotes women's rights, please email info@countthecosts.org to join our list of supporters.

Although most commonly convicted for low-level, non-violent drug offences, and not the principal figures in criminal organisations, women are disproportionately impacted by the war on drugs.

Mandatory minimum sentencing for trafficking often fails to distinguish between quantities carried, and even lower-end sentences can be very harsh. Rigid sentencing guidelines often limit judges’ discretion, preventing them from considering mitigating factors that might reduce the sentences handed down. The result has been that many women involved in drug supply at a relatively low level are subject to criminal sanctions similar to those issued to high-level market operatives and large-scale traffickers.

This results in particularly severe sentences for so-called “drug mules” – those women who carry illicit drugs from one country to another either in their luggage or inside their person. Usually coming from socially and economically marginalised backgrounds, such women are commonly driven to drug trafficking either by desperation (a lack of wealth and opportunity), or by coercion and exploitation from men further up the drug trading hierarchy. The prison sentences drug mules can receive are all the more excessive considering that these women are often characterised by low levels of literacy, mental health or drug dependence issues, and histories of sexual or physical abuse. Any dependents of these women are a frequently overlooked additional population of drug-war casualties.

The war on drugs contributes to the sexual abuse and exploitation of women, with sex sometimes used as currency on the illicit drug market, or women being forced to have sex to avoid arrest or punishment by law enforcement. Reports from Kazakhstan, for example, have described police performing cavity searches on female injecting drug users found in areas near to known dealing points – with any seized drugs reclaimable in exchange for sex.

Expending resources on criminal justice responses to drug use, rather than investing in effective public health measures, further places an undue burden on women. Gender-specific treatment programmes that allow women to live with their children are often lacking (where they exist at all), and in certain countries, pregnant dependent drug users do not have access to the safest and most appropriate treatment practices, compromising both their health and that of their unborn children.

Drug taking is often equated with negligence or mistreatment of children, as a woman’s drug use or dependence can be grounds for removing a child from her care. This is blanket discrimination on the basis of a lifestyle choice or health condition, often fuelled by populist political and media stereotypes (the term “crack mom” is a notable example). Such weighty decisions should in fact be made on an individual basis, taking into account the real risk of abuse or neglect in each case.

Drug-related violence, the victims of which have historically been young men, is now also claiming the lives of women. In Central America, some of this violence has been attributed to “femicides” – the murders of women who are killed because of their gender. Although a concrete link between the drug war and such killings is difficult to demonstrate, there is a growing consensus that in many regions the atmosphere of violence and impunity created by the drug cartels has led to an environment in which women are deemed disposable and, as such, can be subjected to horrific forms of abuse.

• Globally, women are imprisoned for drug offences more than for any other crime

• One in four women in prison in Europe and Central Asia are incarcerated for drug offences, with levels as high as 70% in some countries

• From 1986 to 1996, the number of American women incarcerated in state facilities for drug offences increased by 888%, surpassing the rate of growth in the number of men imprisoned for similar crimes

• In Eastern Europe, women who have experienced domestic violence can be refused entry into women’s shelters if they are active drug users

• In Russia, opioid substitution therapy – which is an important and internationally recognised treatment option for pregnant women who use opioids – is not available and is actively opposed by the government

Where now for opponents of cannabis law reform?

This opinion piece appears in the Febuary edition of 'Matters of Substance', the magazine of the New Zealand Drug Policy Foundation.

As a new high-profile group is established in the US to fight legalisation, Steve Rolles, a long-time advocate for regulating drugs, considers how recent reform victories are reshaping the landscape of the oldest debate in drug policy.

The debate around the legalisation and regulation of cannabis has been with us since the 60s, but recent years have seen it move increasingly from the margins into the political mainstream. In the US, support for legalising cannabis has crossed the 50 percent threshold; even in the spiritual home of the War on Drugs, and despite bipartisan political hostility, a majority now support an end to cannabis prohibition.

Last November, the issue made the decisive move from theoretical debate to political reality as the states of Washington and Colorado passed ballot initiatives that not only legalised personal cannabis possession for adults but also set in motion the first regulated markets for non-medicinal cannabis anywhere in the world. If, as seems likely, the laws are implemented (the federal government is still considering its response at time of writing), this will represent the first real breach in the global prohibitionist regime.

While reform advocates have been understandably jubilant, for opponents, a strategic rethink has become necessary, perhaps best represented by a new group called Smart Approaches to Marijuana. This initiative is led by Kevin Sabet, a US Office of National Drug Control veteran under three administrations and probably the highest profile opponent of cannabis legalisation in the US with hundreds of print and broadcast credits to his name. Sabet is supported in the SAM leadership team by former congressman Patrick Kennedy, journalist David Frum and a group of academics and medical professionals.

The SAM project appears to represent a clear strategic repositioning for Sabet and, by inference, the wider coalition of cannabis law reform opponents. Most striking is the recommendation that cannabis possession should become a civil offence and that criminal records for possession be expunged. The additional requirement for a “mandatory health screening and marijuana-education program as appropriate” has met with indignation amongst some US reformers, but suggestions that SAM advocates mandatory rehab are not supported by the text on the site (referrals to treatment are specifically advocated only "if needed").

While the term ‘decriminalisation’ does not appear, it is precisely what is being advocated by most definitions used in drug policy (closely mirroring the Portuguese decriminalisation model, albeit only for cannabis). It is a significant shift for Sabet who, as recently as April 2012, was writing of decriminalisation that “such a policy may actually make us worse off” and flat out that it “won’t work”.

It would be gratifying to think his group has been convinced by reform arguments or evidence from 14 US states and 25 or so other countries around the world that have already adopted decriminalisation models. However, equally plausible is the dawning realisation that decriminalisation, at least of cannabis, is now a political inevitability and Canute-like defiance is futile. Obama’s recent statement that ‘we’ve got bigger fish to fry’ (than arresting cannabis users) suggests that SAM may also be echoing (or informing) shifting priorities at federal level. There is certainly considerable convergence between the SAM proposals and the US Office of National Drug Control Policy’s talk of a third way (between the extremes of legalisation and a War on Drugs) and retreat from more hawkish War on Drugs rhetoric.

Some hardline prohibitionist groups, however, seem determined to dig in. The World Federation Against Drugs for example, describes advocates of decriminalisation as “driven by greed, disrespect of human rights and lack of understanding of the harms of drugs and of addiction”. SAM by contrast, appears to be conceding on decriminalisation but drawing a line in the sand on legalisation regulation.

The arguments against legalisation are familiar, with, perhaps unsurprisingly, “cannabis use is harmful” front and centre, supported by extensive detail and references. For Transform, debating the risks of cannabis is a distraction from the more salient point that, however risky cannabis is, it is more risky when produced and supplied via an unregulated criminal market (and this is quite aside from the harms of that criminal market). Cannabis needs to be legally regulated because of its risks, not because it is safe.

More interestingly, SAM places great emphasis on the threat of the commercialisation of a legal cannabis market, dwelling on the spectre of Big Tobacco. This, certainly, is a legitimate concern but, in fairness, hardly one that has been ignored.*

Regulation is a blank slate; governments can establish any legal and policy framework they deem appropriate. As demonstrated by Uruguay’s proposals for a state monopoly on cannabis supply and the emerging non-profit cannabis cooperatives in Spain, a commercial model is far from a given, let alone one that “will act just as the tobacco industry acts” as SAM dramatically proclaims.

Indeed, the tobacco industry has seen increasingly strict regulation of dosage, price, packaging, public consumption, branding and marketing over past decades. In much of the West, even in the US, these smarter approaches to tobacco (regulatory tools are impossible under prohibition) have helped dramatically reduce tobacco use in a matter of decades at the same time as cannabis use has been rising.

It’s hard to escape the observation that SAM may be making a case against free-market legalisation while actually supporting a strictly regulated market model. Maybe having seen the light on decriminalisation, they will soon join principled reformers in helping design the optimal regulatory frameworks for legal cannabis that can deliver the shared goals we all seek

*see for example see p.105 of Transform's 2009 'Blueprint for Regulation',  p37, p.51 of Transform's 2006 'Tools for the Debate', or Transform's submission to the UK Govt 2008 consultation on tobacco policy

New Ipsos MORI poll shows 53% of GB public want cannabis legalised or decriminalised

News release
Embargoed until 00:01 Tuesday 19 February

Tel: 07980 213 943 or 07970 174 747
Web: www.tdpf.org.uk
Registered charity number: 1100518

New Ipsos MORI poll shows 53% of GB public want cannabis legalised or decriminalised, and 67% want a comprehensive review of our approach to drugs
 

A new poll by Ipsos MORI, commissioned by Transform Drug Policy Foundation, shows that over half of the public (53%) support cannabis legalisation (legal regulation of production and supply) or decriminalisation of possession of cannabis. Only 1 in 7 support heavier penalties and more being spent on enforcement for cannabis offences. In addition, the survey shows that around two thirds (67%) support a comprehensive independent review of all the possible policy options (from legal market regulation to tougher enforcement) for controlling drugs.

The findings indicate that 45% of mid-market newspaper readers (including Daily Mail and Express readers) support cannabis legalisation (legal regulation of production and supply) or decriminalisation of possession of cannabis, with less than one in five (17%) supporting heavier penalties and more being spent on enforcement for cannabis offences. For tabloid readers these figures are 47% and 20%. Around 65% of mid-market newspaper readers and 66% of tabloid readers support a full review of all drug policy options.

Additional survey findings include:

• 53% of the public support legal regulation or decriminalisation of cannabis - 50% of Conservative supporters and 55% of Labour supporters also support these options, as do 46% of Daily Mail readers
• Only 14% of the public (and 17% of Daily Mail readers) support tougher enforcement and heavier penalties for cannabis offences
• 67% want a comprehensive review of all policy options. 70% of Conservative supporters and 69% of Labour supporters also feel this way, as do 61% of Daily Mail readers
• When outcomes from Portugal were briefly described, almost 40% of the public support the Portuguese-style decriminalisation of small quantities of drugs for personal possession

A spokesperson for Transform said: “These results show just how far ahead of politicians the public are. Whilst Labour and Conservative politicians shy away from the debate on drugs, around half of their supporters want to see legal regulation of cannabis production and supply or decriminalisation of cannabis possession, and a significant majority want a comprehensive review of our approach to drugs – including consideration of legal regulation. The poll demonstrates that even amongst Daily Mail readers, almost half support less punitive approaches to cannabis, and a majority back an independent review of all options, which may come as a surprise to the paper’s editors.

“Politicians have repeated their ‘tough on drugs’ propaganda for so long that they assume the public are more fearful of change than they really are. In fact the world has changed, and the public are far more progressive than was thought, right across the political spectrum. At the very least the government should heed long standing and growing calls for a review of all policy options, including legal regulation. And as a matter of urgency the coalition should engage in experiments in the Portuguese style decriminalisation of possession of drugs for personal use. Now is the time for the heads of all parties to show the leadership citizens surely deserve.”

Contact

Danny Kushlick, Head of External Affairs: 07970 174 747 danny@tdpf.org.uk

Steve Rolles, Senior Policy Analyst: 07980 213 943 steve@tdpf.org.uk
 

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Notes

1. The full poll data is available here: http://www.tdpf.org.uk/Ipsos_MORI_TPDF_poll.pdf

Technical Details

Ipsos MORI carried out the survey, on behalf of Transform Drug Policy Foundation, between 25^th January and 5^th February 2013. A sample of 946 British adults aged 18+ completed a face-to-face survey via the Ipsos MORI omnibus. The data has been weighted by gender, social grade, age, region, working status, housing tenure and ethnicity to reflect the known local population profile.

Questions / Definitions

• Given the subject matter, questions were presented to respondents on showcards with options reversed for some respondents. Respondents read out a letter to indicate their response.
• Q1 was a split sample question: half sample were asked Q1A half sample were asked Q1B.

Q1A. Possession of illegal drugs is currently a criminal offence in the UK. Some other countries have ‘decriminalised’ possession of small quantities of illegal drugs for personal use.  This means that possession of a small quantity for personal use is usually punished with fines (like a speeding fine), or attendance at a drug treatment or education programme, rather than arrest. Under ‘decriminalisation’, drugs are still confiscated. Production and supply to others remain criminal offences that may result in punishments carrying a criminal record, for example a prison sentence, fines or community service.

With this in mind, which of the following comes closest to your view of the law in the UK?

1. The law in the UK should stay as it currently is, so that possession of illegal drugs remains a criminal offence.
2. The law in the UK should be changed, so that the possession of small quantities of illegal drugs is ‘decriminalised’, as described.
3. An experimental trial of ‘decriminalisation’ should take place for a limited time period in some parts of the UK, to allow its effectiveness to be evaluated.
4. Other

Q1B. Possession of illegal drugs is currently a criminal offence in the UK. Some other countries have ‘decriminalised’ possession of small quantities of illegal drugs for personal use.  This means that possession of a small quantity for personal use is usually punished with fines (like a speeding fine), or attendance at a drug treatment or education programme, rather than arrest. Under ‘decriminalisation’, drugs are still confiscated. Production and supply to others remain criminal offences that may result in punishments carrying a criminal record, for example a prison sentence, fines or community service.

Since this was introduced in Portugal in 2001, and resources were instead spent on healthcare, overall use of drugs rose at a similar rate to neighbouring countries. However, there were higher numbers accessing drug treatment, the justice system spent less time and resources on drug-related crime, and there were falls in problematic drug use, and drug use amongst school age children also fell.

With this in mind, which of the following comes closest to your view of the law in the UK? 

1. The law in the UK should stay as it currently is, so that possession of illegal drugs remains a criminal offence.
2. The law in the UK should be changed, so that the possession of small quantities of illegal drugs is ‘decriminalised’, as described.
3. An experimental trial of ‘decriminalisation’ should take place for a limited time period in some parts of the UK, to allow its effectiveness to be evaluated.
4. Other

Q2. Would you support the government commissioning a full independent review of drug policy, that compared our current system of criminalisation with alternatives, including: increasing the criminal penalties for production, sale and use of drugs; decriminalising drug possession as described; and the legalisation and state regulation of production and supply for some currently illegal drugs?

1. Yes, I would support a review
2. No, I would not support a review
3. Other

Q3. Here are a number of different options for regulating the production, supply and use of cannabis (also sometimes called marijuana, pot, hash, grass, skunk, weed, spliff or joints). Please read through this card and then read out the letter next to the option which you think best matches how you think cannabis should be regulated.
 

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Scenario A. Legal – minimal control

Legal to produce and sell cannabis with minimal control and regulation. 

Similar to tea and coffee, there is unrestricted advertising and availability.  Only basic trading standards and quality controls apply, with prices, location and number of outlets decided by the market.

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Scenario B. Legal – moderate control

Legal production and availability  of cannabis with moderate government control and regulation

Similar to the current system for tobacco and alcohol, but cannabis is only available from licensed shops or premises. The number and location of outlets is decided by the government, which also influences prices through taxes or setting minimum prices. Packaging carries health warnings, and advertising and age restrictions apply.

If you are underage and in possession of cannabis, it may be confiscated. Licensed premises selling the drug to anyone underage will be fined, and may lose their license. All unlicensed sales are illegal and may result in punishments that carry a criminal record, for example a prison sentence, fines or community service. 

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Scenario C. Legal – strict control

Legal production and availability of cannabis with strict government control and regulation

Like controlled medicines, cannabis is only available either with a doctor’s prescription for medical uses, and/or bought over the counter from a licensed retailer similar to a pharmacist, trained to give health information and advice.  The government decides prices, maximum quantities sold, and the number and location of outlets.  Users may be registered, age restrictions apply. Packaging carries health warnings, and branding and advertising are banned.

Any licensed retailers selling cannabis to anyone underage will be fined and may lose their license. All unlicensed sales are illegal and may result in punishments that carry a criminal record, for example a prison sentence, fines or community service. 

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Scenario D. Illegal – decriminalise possession

Illegal to produce and supply, but possession of cannabis does not lead to a criminal record

Supply of cannabis is only through the illegal market where manufacture, distribution and sale are unregulated. Those found in possession of a small amount of cannabis for personal use would not be given a criminal record. But the drug may be confiscated, and the user given a fine (similar to a speeding fine), or a requirement to attend a drug treatment or education programme.

Production and supply of cannabis to others remain criminal offences that may result in punishments carrying a criminal record, for example a prison sentence, fines or community service.

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Scenario E. Illegal – current laws apply

Illegal to produce, supply and be in possession of cannabis – all lead to a criminal record

Supply of cannabis is only through the illegal market where manufacture, distribution and sale are unregulated. Production, supply and possession for personal use, or to supply others, can result in punishments that carry a criminal record, for example a prison sentence, fines or community service.

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Scenario F. Illegal – much heavier penalties apply

Illegal to produce, supply and be in possession of cannabis – all carry a prison sentence

Supply of cannabis is only through the illegal market where manufacture, distribution and sale are unregulated. Possession for personal use is always punished with a prison sentence, or a young offenders’ institution for under 18s. Production and supply to others is punished with an automatic life prison sentence. Substantially more money would be spent on enforcement against suppliers and users. 

ENDS

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This critique of drug prohibition was written 45 years ago

These are pages from 'The Limits of the Criminal Sanction' written by Herbert L. Packer in 1968. It's striking how spot on Packer was, and how little the critique has changed. The only real difference is that the scale of the problems he identifies has become far, for greater. 

HT @strayan

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Transform seeks new Treasurer

2012 was an historic and exciting year for drug policy reform, with two US states voting to legalise cannabis and a host of eminent public figures – including incumbent presidents – declaring that the war on drugs has been lost.

To capitalise on the growing support for the end of the war on drugs, we have been expanding our capacity at Transform – in particular our Board of Trustees. The Board now includes experts from a range of fields, including the former Deputy Director of Oxfam, internet entrepreneur Paul Birch, and the former political editor of the Mirror. (More details on the board can be found here.)

We are now looking for an experienced Treasurer to join our dynamic Board.

Transform’s Board meets three times a year (twice in Bristol and once in London). The treasurer will also be expected to attend meetings of the Executive Committee in between these dates (usually held in Bristol).

The main duties are to oversee the financial administration of the organisation, review procedures and financial reporting, and to advise the board on our financial and fundraising strategy.

Now is a great time to join the drug policy reform movement, so if you think you have the required skills and would like to apply, please send your CV and cover letter to jane@tdpf.org.uk by 15th February 2013.

You can find out more about the role here (PDF). If you have any question or would like more information, please call 0117 325 0295.

Marijuana legalisation: Sometimes Violations of International Law Are Cause for Celebration

This is guest article for the Transform blog by Damon Barrett , Deputy Director of Harm Reduction International, co-founder of the International Centre on Human Rights and Drug Policy, and an Editor-in-Chief of the journal Human Rights and Drugs.  It is also published on Damon's Huffington Post blog.  

The United States is again in violation of international law. That is a strong statement and one that reminds us of the invasion of Iraq, Guantanamo bay, water-boarding, rendition, and the strong international legal arguments made about these situations.

But in this case the violation will be hailed by many as a positive step.

On 6 November various ballot initiatives were voted on in the US, from abolishing the death penalty to allowing assisted suicide, to legalising gay marriage. Three had the clearest potential to render the US in breach of international law if they succeeded. With the votes in Colorado and Washington which established a legally regulated framework for non-medical production and sale of marijuana, that breach has now occurred.

 now in unchartered legal territory

The laws in question are the 1961 UN Single Convention on Narcotic Drugs and the 1988 UN drug trafficking conventions (which has a longer, duller title). Alongside one other treaty (which deals with synthetics) these form the bedrock legal foundation of the global drug control regime. Most countries follow them very closely, including the US.

Some states have been pushing at the boundaries of these treaties for some time, however, on particular points of contention that have developed in the decades since the treaties were negotiated. Times have changed since 1961. Grey areas have been exploited, arcane scheduling systems utilised, and interpretations adopted that allow more room for manoeuvre.

But what sets these ballot initiatives apart is that there is no grey area to exploit, and it would take some legal gymnastics to interpret your way past that. This is straight up legalisation (and regulation) of recreational use, production, and sale, which is simply not permitted. It's what the system was set up in large part to prohibit, with marijuana receiving particular attention alongside coca and opium. While most substances are listed in annexed schedules, these three are written into the very terms of the treaties ('cannabis' is the term used).

The US (alongside over 180 other states) is required, under a very robust and politically supported regime, to 'limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs'.

There is more, of course, and there are various provisos and caveats on certain provisions, but this is a 'general obligation' of the regime around which all else revolves. In other words, the US is not just in breach of some marginal aspect of the system, now, but a fundamental requirement of it that goes to the heart of prohibition.

Millions of US citizens are now permitted to buy and sell marijuana for recreational purposes (regulations pending). These laws apply to a population far exceeding that of Sweden (where I am currently sitting) and way over twice the size of Ireland (where I'm from). This would be supported by neither government, which have signed contracts with the US in the form of these international agreements to the effect that none of them would allow it. The fact that this has happened at state and not federal level does not rectify the legal dilemma the US government now faces.

Many in the US and worldwide are celebrating the results in Colorado and Washington as the beginning of the end of the war on drugs - and appropriately through a democratic process. People have voted for the US to breach international law. That very few would have cared or knew about this is not relevant. This is the fact of it.

There are now four possible scenarios. The US Federal Government can fight it out, stepping all over state sovereignty. The US can withdraw from the treaties in question. The treaties themselves can be changed by international processes. Or the US can carry on in breach and turn a blind eye. I think the fourth is the most likely. Ironically, this leads inexorably to arguments for broader reform, but this is something the US overnment has ardently opposed, even signing a recent declaration with the Russians to that effect.

So the implications for international law and the place of the UN drugs conventions within it must be considered.

We would not celebrate an ongoing breach by the US of the Convention on the Elimination of Racial Discrimination or the International Covenant on Civil and Political Rights, to which it is also bound. Nor would we tolerate (though they happen regularly) violations of the Geneva Conventions, the Torture Convention, the Nuclear Non-Proliferation Treaty or environmental protocols. Indeed, there is a hierarchy in international law that is exposed by the Colorado and Washington votes.

But it is one within which the drug control regime has an unnaturally elevated position due to the widespread political consensus around prohibition, and fears that have been intentionally fuelled over the years. Drugs, in the UN conventions, are seen as a threat to mankind, and an 'evil' to be fought. Over time, respect for the UN drugs conventions has been equated with respect for the rule of law itself. 'The three United Nations drug control conventions...set the international rule of law that all States have agreed to respect and implement' said the President of the UN's International Narcotics Control Board (INCB) in a recent speech. (The INCB is the body that monitors States' implementation of the drugs conventions). He has confused the rule of law with specific laws.

There are some things that are wrong in themselves (malum in se) and things that are wrong because they are prohibited (malum prohibitum). But when it comes to drug laws, fighting something that is prohibited has resulted in widespread acts that are wrong in themselves and that breach basic legal principles - the rule of law.

The racially discriminatory nature of drug laws is common knowledge. Some governments rely on the international regime to justify executions of people convicted of drug offences (in violation of international law, in fact). Police violence, mass incarceration, denial of due process are routine in States' pursuit of the general obligation the US now breaches.

The international legal arguments about the Colorado and Washington results will certainly arise. They must, though it will likely be in the rather closed and stale environment of UN drugs diplomacy. When that happens it must emerge is that these ballots are a victory for the rule of law even as they bring the US into conflict with the drugs conventions. Fundamental legal principles of proportionality, fairness and justice, not to mention democracy, have won out over arbitrary and unreasonable controls on human behaviour.

Ending the war on drugs, moreover, will be a victory for international human rights law. It will be a victory for international law itself - for environmental law, anti-corruption agreements, international security, for the achievement of international development agreements and improved health - all of which have been damaged by decades of prohibition. Colorado and Washington have taken us one step closer. For that we should all celebrate.

Follow Damon Barrett on Twitter: www.twitter.com/DamonHRI

Cannabis legalisation in Washington and Colorado: A game-changer

Last night was a historic moment for the drug policy reform movement: two US states, Washington and Colorado, voted to legally control, tax and regulate cannabis for non-medical use.

They are not just the first US states to do this; they are the first political jurisdictions anywhere in the world to take such a step.

The wider political fallout from this vote will be significant. Firstly, there’s the potential for the domino effect: other states might now feel emboldened to press ahead with similar ballot initiatives. Indeed, last night showed that change is in the air, as Massachusetts became the 18^th US state to legalise medical marijuana, and California voted to reform its notorious “three-strikes” law, which will mean those convicted of a third non-violent felony – including drug offences – will no longer receive a mandatory 25-to-life sentence.

Secondly, there remains the possibility that the federal government will crack down on Colorado and Washington as they start taking the necessary practical steps to legally regulate the cannabis trade – something that remains unambiguously illegal under federal law. The governor of Colorado – who was personally opposed to the initiative – said in a statement:

“The voters have spoken and we have to respect their will … This will be a complicated process, but we intend to follow through.”

But he followed that up by – somewhat flippantly – reminding voters that there may be a clash with the feds down the road:

“That said, federal law still says marijuana is an illegal drug so don't break out the Cheetos or gold fish too quickly.”

However it plays out, a clash with the federal government over this new legislation will be a major news story, ensuring that the issue of legal regulation maintains its place in the mainstream media and political debate. This is obviously a plus for the reform movement; we know that exposure to meaningful debate invariably pushes public opinion in the right direction (the arguments for the war on drugs, while entrenched, cannot withstand scrutiny). But despite tensions with federal law there is genuine cause for optimism given that, rightly or wrongly, the protection of state rights from unwarranted meddling by the federal government is a theme that runs through much of the political discourse in the US, particularly among the Tea Party-style hardliners who might be expected to be social conservatives and therefore opposed to legal regulation. (Mitt Romney's running mate, Paul Ryan, for example, has been quoted as saying that it's up to individual states to decide whether to legalise medical marijuana.) The question is whether their usual support for state-level policy making – and disdain for “big government” legislation – extends far enough for them to support – or at least not actively oppose – state-level legalisation initiatives.

Thirdly, there is the clash with international law. The new Colorado and Washington legislation puts the states in clear breach of the general obligation of the 1961 UN drug convention requiring the criminalisation of non-medical supply and use. The US, perhaps ironically now, has historically been the biggest cheerleader for such prohibitions on the global stage. A complete U-turn from this position isn’t realistic, but it will be interesting to see whether, at the international level, they at least tone down their “tough on drugs” rhetoric now that they themselves are the first to do the previously unthinkable.

Even if there isn't much of a change in the US’s posturing about drugs in international forums, the hypocrisy of demanding that other nations carry on enforcing prohibition while they themselves are retreating from it, could be enough to encourage a range of countries to start agitating for reform. What is to stop the Netherlands, for example, from finally solving its “back door problem” and legally regulating production and supply to its cannabis coffee shops, which have for decades operated in a quasi-legal paradox. Change is already well under way in Latin America, and the developments in Colorado and Washington will only help the region’s case for the need to explore alternatives to the war on drugs.

Finally, while drug policy reformers – particularly those in the US who did such an incredible job mobilising support – should all be delighted that these measures have passed, we should refrain being smug about these victories. Although this news adds to the stream of positive developments over the past couple of years, there is still a long way to go.

For outside observers looking at these developments, the main concern with US legalisation will always be over-commercialisation, and a policy model driven more by profit-seeking and the interests of private enterprise than public health and wellbeing. It is vital that if we are going to “regulate marijuana like alcohol” (as the slogan for these ballot initiatives has argued), then we must learn from the mistakes made with inadequate alcohol (and also tobacco) regulation in the past. But done right, it is clear that legal regulation will greatly reduce social and health harms. Having secured their place in the history books as the first places anywhere to break with the global prohibitionist regime, Colorado and Washington now have a responsibility to do it right, and to show the world that legally regulating drugs is a safe, logical and vitally important step to take.

The US votes for change (to its drug laws)

Although the US has for a long time been one of the world’s most ardent supporters of global prohibition, a number of its constituent states have demonstrated significantly more progressive thinking on drugs. In 2010, a state level ballot - Proposition 19 - in California, very nearly led to legal regulation of cannabis in that state. And while the ballot was narrowly defeated (53.5% vs 46.5%), it hinted at the extent of potential support for drug policy reform among Americans.

As has been widely reported, there are now similar ballot initiatives in Washington, Oregon and Colorado, and there's a strong chance at least one of them will pass. They all contain different provisions and details of their respective regulatory frameworks. These are summarised in this table (with thanks to the National Cannabis Coalition):

State
Initiative	Oregon Cannabis Tax Act (OCTA or I-9)	Regulate Marijuana Like Alcohol (A-64 Colorado)	New Approach Washington (I-502)
Personal Possession	Allowed, Limit Not Designated[ii]	1 ounce in public; all of the cannabis produced from harvests of personal plants at the grow site.	1 ounce of cannabis; 16 ounces of solid products (hash, brownies, etc.); 72 ounces of liquid products (tinctures, etc.)
Personal Cultivation	Allowed, Limit Not Designated	6 plants, only 3 in flower.	NOT ALLOWED
Age Limit	21 Years Old	21 Years Old	21 Years Old
Public Consumption	None except non-minor areas where prominent signs allow it.	No “open and public” consumption.	None.
DUID Standard	Current Oregon Law (demonstrated impairment)	Current Colorado law (demonstrated impairment)	New 5ng THC / mL blood per se DUID; zero-tolerance under age 21.
Regulatory Body	New Oregon Cannabis Commission (OCC)	Colorado Department of Revenue	Washington State Liquor Control Board
Hashish / Hash Oil?	“Cannabis means all parts, derivatives, or preparations of the cannabis plant.”	“Marijuana means… every compound, manufacture, salt, derivative, mixture, or preparation of the plant, or its seeds, or its resin, including concentrates.”	“Marijuana means… every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.”
Industrial Hemp?[iii]	Legalized as any crop, no licenses, fees, or regulation; all seeds & starts are considered hemp.	Hemp defined as <0.3% THC cannabis, department shall set hemp regulations.	Marijuana defined as >0.3% THC, implying hemp is any cannabis <=0.3% THC and thereby legalized.
Commercial Cultivation	Individuals may cultivate for sale to the OCC	Marijuana Cultivation Facilities	Marijuana producer’s license available for cannabis sales to processors[iv]
Commercial Processing	Individuals may process cannabis into hash, hash oil, medibles, tinctures, salves, etc. for sale to the OCC	Marijuana Product Manufacturing Facilities	Marijuana processor’s license available for cannabis sales to retailers.
Commercial Sales	OCC Cannabis Stores, may limit amounts and frequency	Retail Marijuana Stores	Marijuana retailer’s license available for cannabis sales to the public. Can only sell marijuana.
Commercial Zoning	Not specified, OCC may set regulations	Not specified, department may set regulations	>1000 feet of schools, playgrounds, other locations with minors.
Taxes & Fees	Not specified	15% excise tax at wholesale level[v] (cultivator to processor or retailer)	25% excise tax at each stage of sales (producer to processor to retailer to customer)
Medical Marijuana	OCC Stores sell cannabis at cost to qualifying patients.	Act does not apply to medical marijuana, which retains its current regulatory structure.	Improves medical marijuana by providing protection from arrest for some possession.[vi]
Restrictions	Sale to minors or unlicensed sale forfeits one’s right to buy, sell, or process cannabis	Localities may ban commercial cultivation, processing, retail through their governing body or by ballot initiative only in even-numbered years.	May set maximum number of retail outlets / county.  Signage can be no more than 1600 square inches.  No advertising near kids.
Fee Distribution	After OCC / AG costs, 90% to General Fund, 7% to Drug Abuse Treatment, 1% for hemp promotion, 1% hemp biodiesel, 1% to school drug education.	First $40M to Public School Capital Construction Assistance Fund; remainder to General Fund	Dedicated marijuana fund run by State Liquor Control Board.  $125K to Healthy Use Survey; $50K to social and health reports; $5K to UW for web-based marijuana education; $1.5M to State Liquor Control Board; remainder: 15% to drug treatment; 10% for drug education; 1% to state university research; 50% to Washington Health Plan; 5% to community health care; 0.3% to building bridges program; remainder to General Fund.

You can read about the cannabis regulation models Transform has proposed in 'After the War on Drugs; Blueprint for Regulation' (The Oregon measures probably coming closest). 

There have been a series of intense debates within the US cannabis reform movement about the details of these ballots - with the new per se Driving Under the Influence (DUI) proposal on the Washington State ballot proving a particular flash point. This would establish a threshold quantity of THC in the blood that if found in drivers would lead to an automatic DUI prosecution, regardless of impairment. Without burrowing too far into the technicalities of this particular debate - in summary: the promoters of the ballot argued that a tough DUI provision, whilst not ideal, was a political necessity to get the ballot passed (anti reform critics frequently playing on the risk of stoned drivers), whilst opponents of this specific provision argued that it would lead to unfair prosecutions of people driving whilst not impaired - particularly under 21s. 

These debates have been complicated further by promotion of anti-ballot campaigns led by some of the commercial interests in the booming medical cannabis industry in these states, some of whom view the passing of the ballots as a threat to their businesses (not only is an unspecified, but assumed to be quite significant  proportion of medical cannabis used for recreational non medical purposes, but with legal availability of a quality assured non medical product, the necessity for dedicated medical suppliers diminishes dramatically). This has all led led to the peculiar phenomenon of this year's Seattle Hempfest - the world's biggest annual cannabis festival, and by implication also the worlds biggest legalisation rally, was also simultaneously this year's biggest anti-legalisation rally.  

These various squabbles aside, the reality is that Washington and Colorado in particular are looking like they may be in with a real shot at winning. In Colorado polls are consistently showing a majority of voters to be in favour of the state’s legalisation bill, Amendment 64, which is being promoted by the "Campaign to Regulate Marijuana like Alcohol".

Health conscious: John Hickenlooper

Age controls are an especially good illustration of the potential benefits of alcohol-style regulation, as a study a few years ago from the US National Center on Addiction and Substance Abuse found that it was easier for teenagers to buy cannabis than alcohol, which somewhat undermines the commonly heard “but-think-of-the-children!” critiques from the nay-sayers.

The governor of Colorado, John Hickenlooper, has criticised cannabis regulation on just such grounds. He said:

“[Amendment 64 has the] potential to increase the number of children using drugs and would detract from efforts to make Colorado the healthiest state in the nation. It sends the wrong message to kids that drugs are OK.” 

This is interesting because, as Hickenlooper proudly told the press not so long ago, he’s “the first brewer who’s even been a governor”. It’s not clear whether Governor Hickenlooper’s career supplying Colorado with the mind-altering drug alcohol represents his effort to make Colorado the healthiest state in the nation, but it is clear that he doesn’t like the idea of people supplying another (rival?) mind-altering drug out of concern for public health.

Other politicians – as well as physicians and law enforcement officials – have, however, publicly declared their support for Amendment 64, and TV ads are now being aired to promote the campaign. Similarly impressive endorsements are lining up behind  the Washington initiative.

But even if the positive publicity does the trick and the encouraging polling lasts until election day, there’s still the thorny issue of the federal government to negotiate. It’s unlikely that were any of the other initiatives to pass, the feds would sit back while states allowed activities that are in direct conflict with federal law.

This Monday, directors of the Office of National Drug Control Policy spoke to the Department of Justice to remind it that if any of the legalisation initiatives pass, they would still be violating federal law and could trigger a constitutional showdown. The ONDCP is clearly attempting to pressure Attorney General Eric Holder into making a public statement opposing these measures, as the Department of Justice is still yet to do so, despite only a couple of weeks remaining until election day. Where this is all going to lead is not clear - we would be moving into uncharted territory; the first time anywhere in the world has unambiguously legalised and regulated production and sale of cannabis for non medical use.

Speaking to one of the architects of the prop-19 California ballot back in 2010, they were open about not having a plan for resolving state vs federal law tensions, or for that matter the less discussed but arguably even more significant issue of violating the International UN drug conventions, to which the US is a signatory (indeed they were the driving force behind their creation). Their plan was, as they put it - 'to start a shit storm and see where it leads'.

If the ONDCP have a plan - they are not letting on either (see this conversation Transform had with the US Drug Tsar in 2011).


Whatever the outcome of the votes, or of possible states vs feds (or vs UN) legal wrangles, the ensuing drug policy debate can only be useful in raising awareness of the issue, and could also provide greater political space for other countries – like Mexico, Guatemala and Colombia, who recently took their calls for change to the UN – to be more vocal in speaking out against the war on drugs and be bolder in their moves towards more substantial reform.

[ii] OCTA only specifies that commercial cultivation and sales must be licensed by OCC and that personal cultivation and sales need not be licensed.  Presumably, you could grow a football field of plants and possess a large Hefty Bag full of pot under OCTA, so long as you sold none of it.

[iii] All hemp production still remains illegal under federal law without a DEA permit.

[iv] I-502 producers and processors may not have a direct or indirect financial interest in retailers.

[v] Colorado’s TABOR requires any tax increase to go before a vote of the people.  15% is merely the maximum authorized wholesale excise tax that the legislature may enact.

[vi] Washington’s medical marijuana law has no registry cards and only an affirmative defense to prosecution.  Thus, medical marijuana patients can now be arrested by police, and then they have to provide an affirmative defense to the judge.  Under I-502, these patients would now be protected from arrest for 1 ounce of cannabis, 16 ounces of medibles, or 72 ounces of tinctures.