Decriminalisation is not legalisation of controlled drugs
Over 50 years into the ‘War on Drugs,’ national and international debate on drug policy continues to rage unabated, with few tangible results to show for the effort. Rates of drug use remain high across the world; incarceration for drug offences is at record levels and spending to wage the ‘war’ costs billions of US dollars each year. Our current drug policies are a failure. But, across the globe, and out of the spotlight, governments are adopting a different policy approach to address drug use in their communities.
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Some are reducing harsh penalties for drug offences to save costs; others are increasing their harm reduction and public health measures to limit the destructive impact of problematic drug use.
In the past 10 years, a new wave of countries have moved toward the decriminalisation model, suggesting growing recognition of the failures of the criminalisation approach and a strengthening political wind blowing in the direction of an historic paradigm shift.
Decriminalisation and legalisation
There has historically been conflation of the terms decriminalisation and legalisation which can hinder productive debates on the matter. Therefore, it is important to clarify the differences between the two.
Decriminalisation has usefully been defined as ‘the removal of sanctions under the criminal law, with optional use of administrative sanctions’. These administrative penalties can include fines, community-service orders, warnings, education classes, suspension of a driver’s or professional license, travel bans, property confiscation, associational bans, mandatory reporting, termination of public benefits, administrative arrest, or no penalty at all.
Under decriminalisation regimes, personal possession and use of small amounts of drugs are still unlawful, but not criminal. Fundamentally, decriminalisation is the removal of drug use and possession from the remit of the criminal justice system, and its reclassification as a public health issue. Decriminalisation in no way implies drug use is not a serious issue, or one that should be ignored or allowed.
On the other hand, legalisation is technically the process by which a product becomes legal and is often conflated with regulation. Ultimately, under such a model all drug-related offences are no longer controlled within the sphere of criminal law, but production, supply and use are regulated through administrative laws, as is the case for tobacco or alcohol. Under this regime, the drug trade is taken from criminal gangs and given a legal backing and thereby reduces the lucrative criminal markets.
Effects of criminalisation
The rationale behind decriminalisation is to reduce the harms associated with criminalising people who use drugs (PWUD). This punitive approach has come under increasing scrutiny as it has been identified as a key structural risk factor for a range of drug-related harms for people who inject drugs (PWID). More commonly, higher rates of HIV infection among PWID are seen in environments in which injecting drug use (IDU) and other associated practices such as the provision of sterile needles are criminalised.
Continuous criminalisation prevents drug users from accessing health services for fear of arrest by the police. It also encourages needle sharing with high risk of contracting HIV, viral hepatitis and other blood-borne viruses, pushing use into unhygienic marginal environments and thus increasing the risk of infection and overdose death.
Although the conventions restrict the use of controlled drugs to medical and scientific purposes, this limitation should not be construed as a justification for a repressive “prohibitionist” regime, but as the foundation of a drug control system protecting the health of people from the inappropriate use of the narcotic drugs and psychotropic substances. The conventions indicate that the controlled substances should be used under the responsibility of medical doctors or licensed health professionals to avoid substantial health and security challenges to individuals and communities.
Modern drug control framework
The modern international drug control framework was established under the 1961 UN Single Convention on Drugs, but the criminalisation of personal possession was first explicitly introduced by the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychoactive Substances.5 Article 3(2) of the 1988 convention states:
‘...each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption.’
The commentary on the 1988 convention says explicitly that this paragraph ‘amounts in fact also to a penalisation of personal consumption. However, the 1988 convention does not specify the nature of the sanction and additionally provides a caveat to the presumption that States must criminalise drug possession. Article 3 (2) begins with the statement that any measures adopted shall be ‘subject to its constitutional principles and the basic concepts of its legal systems.’
In line with these provisions of the conventions, the political Declaration 2009 reiterates the commitment to promote and develop primary prevention, early intervention, treatment, care, rehabilitation, social reintegration and related support services, aimed at promoting health and social well-being among individuals, families and communities and reducing the adverse consequences of drug abuse, with interventions based on scientific evidence. State parties can, therefore, adopt a less punitive criminal justice approach to drug possession and use without breaching their international obligations.
Bans on harmful substances are created with the intention of reducing their use and, therefore, protecting people from their harms. Given that no link exists between criminalisation and lowered levels of drug use, there is the need for a paradigm shift towards a health based approach in Ghana.