drug-related penal legislation and practice in europe · drug-related penal legislation and...

Drug-related penal legislation and

practice in Europe

Drugs, crime and punishment;

where to draw the line?

Brendan HughesPrincipal Legal Analyst, EMCDDA

Tallinn University

7 March 2016

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Personal possession in international law

Art. 3(2): Subject to its constitutional principles

and the basic concepts of its legal system, each

party shall […] establish as a criminal offence

[…] the possession, purchase or cultivation of

drugs […] for personal consumption…[UN Convention Against Illicit Traffic, 1988]

Safeguard clause

No requirement to penalise use itself

No requirement for conviction or prison

[No objective test for “criminal” offence]

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Not an offence (16)

Drug use / consumption –

an offence?

[DRAFT]

Criminal offence (8)

Non-criminal

offence (6)

(ELDD Topic Overview – Illegal Consumption)

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Possession of drugs for personal use (minor offences):

possibility of incarceration in laws

Incarceration possible:

For any drug;

For any drug other than

cannabis.

Incarceration not possible.

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Does the penalty vary by drug?

(ELDD Topic Overview –

Classification: EDR 2013, Fig 4.2)

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Quantity limits (ELDD Topic Overview)

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Sentence statistics – personal use offences

EMCDDA Selected Issue Sentencing, 2009

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Do changes in legal sanctions result in observable changes in cannabis use rates?

With many caveats,

the best available

evidence shows no

clear impact of

penalty changes on

cannabis use.

(EMCDDA Annual

Report 2011, Ch.3)

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Alternatives to punishment: UN Conventions

1988 UN Convention Against Illicit Traffic:

Art 3.4 “(c)…in appropriate [supply] cases of a minor nature, the Parties may provide, as alternatives

to conviction or punishment, …as well as, when the offender is a drug abuser, treatment and aftercare.

(d) The Parties may provide, …as an alternative to conviction or

punishment [for personal possession]…, measures for treatment,

education, aftercare, rehabilitation or social reintegration of the

offender.”

Also 1961 Single Convention, Art 36.1(b) (since 1971); and 1971 Psychotropics Convention, Art 22.1(b)

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Where should the balance be?

Punishment Rehabilitation

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Alternatives to punishment / coercive sanctions

Why choose ATP?

Individual: proportionate response, treat addiction, reduce

stigma

Society: reduce drug-related crime, reduce disease

transmission

State structure: reduce pressure and resources of criminal

justice system, courts, prisons

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Types of alternatives to punishment in Europe

Police Pros. Ct. Sentence

Kruithof et al (2016): Study on alternatives to coercive sanctions as response to drug law

offences and drug-related crimes. European Commission DG MHA / RAND Europe

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ATPs – Design Factors

Limited Factor Encompassing

Criminal Legal system Administrative

Optional Direction to judiciary Compulsory

Selected sites Geographical availability Nationwide

Sentencing Stage of legal procedure Post-arrest

Addicted Offender diagnosis Any drug user

Drug use or personal

possessionOffence

Any offence linked with

drug use or minor

trafficking

Multiple exclusions, eg

Possession of more than

a small quantity; prior

criminal record; recidivists

Exclusion criteriaExcludes only very serious

offences

Addiction treatment Response availableTreatment, education,

aftercare, rehabilitation

Secure facility Treatment setting Wherever appropriate

Limited Number of places available Not limited

Paid by offender Cost Paid by state

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Alternatives to punishment:implementation and effectiveness

Existing: 108 alternatives found.

Implementation: 78 had data on the number of times used.

Experts/data say most ATPs are

rarely used by judiciary.

Completion: 19 had data on the number of successful

completions. Completion rates vary widely.

What do we mean by “what works”?Heroin > Cannabis? 400 thefts > 20 thefts? …Reducing court time?

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What affects use of alternatives?

Decision-makers’ beliefs and practices• To drug use, drug users

• Performance monitoring

• Assessment of offender compliance, completion

Administrative factors• Availability of resources

• Bureaucratic procedures

• Relations between relevant systems

Legislative factors• Facilitating / restricting / absent laws

Contextual factors• Changes to policy / practice

• Criminal justice / public mood

Kruithof et al (2016): Study on alternatives to

coercive sanctions as response to drug law offences

and drug-related crimes.

European Commission DG MHA / RAND Europe

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What affects success of alternatives?

Evidence is weak, but promising:

• Target the individual offender (eligibility, needs, risk

factors) [Criminal records / violent offenders!]

• Try to retain offender in treatment, motivated

• Address the implementation factors; some

restrictions are counterproductive.

• Monitor and evaluate!

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For more information:

And upcoming: Kruithof et al (2016).

Interactive: ELDD; Penalties at a glance

YouTube: What is decriminalisation?

Report:

Sentencing

and other

outcomes

(2009)

European Drug Summer School 2016

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Two-week summer school involving

scientific experts from the EMCDDA

and keynote speakers.

5th Edition – about 150 from the EU,

US, Asia, Africa and Latin America

have already participated!

Registration

Phase 1: 7 January–1 March (early-bird discounts)

Phase 2: 16 March–30 May

For more information:

www.drugsummerschool.cies.iscte-iul.pt

Illicit Drugs in Europe:Demand , Supply and Public Policies

Lisbon 27 June-8 July 2016

http://www.drugsummerschool.cies.iscte-iul.pt/

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