Living Sensibly with Drugs

Portugal makes the de-criminalisation of drugs work

By Jose Barbosa

Earlier this year a white paper pulling together data on Portugal’s drug policy caused a minor sensation among those interested in such things. Written by author and Salon.com columnist Glenn Greenwald for the Cato Institute, Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies pulls together seven years of data collected since the country’s trailblazing policy of drug de-criminalisation was enacted in 2001. Greenwald’s aim as stated in the paper was to examine the “… de-criminalisation framework as set forth in law and in terms of how it functions in practice.” The ultimate goal being to set Portugal up as a case study that policy makers and advocates in other countries could consider when formulating debate on the issue.

The basic conclusion Greenwald came to was that the world hadn’t caved into hell after drugs were decriminalised, and drug use across most substances had either stayed the same or decreased; in his estimation a resounding success.

Therefore it’s worth a look at exactly what Portugal’s policy is. The first thing to make clear is the difference between the de-criminalisation of personal use and possession, and the legalisation of drugs. At a policy level, the two are readily blurred. Rather depressingly for instance, the UN Office On Drugs And Crime spokesperson Walter Kemp said the office did not explicitly support de-criminalisation because it “… smacked of legalisation.”).

Drug possession and taking drugs for personal use is still prohibited, but now it’s considered an administrative violation which removes “consumption, acquisition and possession” from the criminal sphere. Let’s make that clear: drugs are still illegal, they’ve just had any penalties for possession and use stripped away. It’s also worth making clear that the law does [not] only apply to cannabis – it applies to all drugs including cocaine and heroin. (Strangely, most Portuguese I talked to were under the impression the law related only to marijuana. Whether that’s due to a conscious effort by authorities to downplay the true scope of the law or deficiencies in educating the masses, I’m not sure).

What happens then if you’re busted? Essentially nothing, if you’re not addicted. You can be fined, but that’s considered a last resort. For those who are addicted they can have their fine dropped if they submit to treatment. Cops can issue citations to a non-addict, but they’re not required to make an arrest. Trafficking still has its criminal offences attached – and if you’re found with over what could be considered ten days worth of substances, you can be considered to be trafficking.

Although not always. A story told to me by a friend in Lisbon concerned a flat of students who rather brazenly retained a healthy balcony chockfull of cannabis plants for the flat’s own use (a veritable urban forest as I can attest to having visited said flat a few years earlier). Called in by a downstairs neighbour after having a gutsfull of the loud music coming from upstairs, Police discovered the copse of chronic, and the flat was carted off to court.

To their surprise, the Judge let them off without any penalties. Although they were caught with well over the ten days worth, the Judge was satisfied that it was for their own personal use. He reasoned that to confiscate the plants would lead the students to source their supply from elsewhere, thus implicating them in the sphere of the illicit drugs industry – an outcome he considered to be much more harmful than leaving them alone with their plants.

That’s perhaps a good example of how the drug policy isn’t just an administrative tweak, but a major shift in philosophy. One of the strategies behind the legislation is to treat drug users as full members of society and to avoid the stigma that happens when someone is hauled up in court on criminal charges. All the usual paraphernalia of the court system are stripped away – with members of the “Dissuasion Commission” dressing informally, and being required by law to respect at all times the rights of the offender.

De-criminalisation has been viewed as a success by most of the population. At the very least, calls for a wholesale review of the policy are solely the purview of the far screwball right. Prevalence rates (that is how many people have used a particular drug over their lifetime) have dropped in most categories, compared to rates in the 1990s before the legislation was passed.

Funding for and the amount of drug users in treatment has increased. Remember that often the top barrier to an addict seeking treatment is the fear of arrest. Also related harms attributed to drug use are down, and mortality rates as a result of drug use have dropped. The number of newly reported cases of HIV and AIDS has declined as a part of that, due to more money and emphasis on prevention and needle swapping programmes. In 2006 (when the last big study of the effects of de-criminalisation was completed) drug related deaths per year were at 290, in 1999 the same figure was at 400.

It is not all good news, however. Greenwald reports that prevalence rates for all illicit drugs in the 16 to 18 age bracket were up from 12.3 to 17.7 percent from 1999 to 2003. However, according to 2007 figures from the European School Survey Project On Alcohol And Other Drugs (ESPAD), usage drops down to 14 percent. (The reason why Greenwald hasn’t included the latest data (released in 2008) isn’t clear. Perhaps it indicates the cyclical nature of drug use, something critics of the Portuguese policy suggest is being reflected in the declining figures.) Regardless, he moves on quickly and chooses to focus on the decreasing prevalence rates for heroin in the same period (2.5 to 1.8 percent). He then explains what a huge problem heroin was before de-criminalisation, which it was, but it seems a little disingenuous not to follow up on the previous figures and then crow about a slight decrease in heroin rates.

An earlier report is much more forthcoming about the problems of reporting. In the 2007 study by the Beckley Foundation the authors make the point that general population surveys of drug use did not start until 2001, the year the law came into effect. “This,” they argue “reduces the capacity to measure one of the major aims of de-criminalisation: reducing problematic use.”

Their study uses the same figures quoted by Greenwald two paragraphs above, but is cautious about including them because they rely on school kids accurately reporting their own usage.

“… if de-criminalisation signals to young people that cannabis use is more socially acceptable, they may become more willing to report using it when surveyed.”

It’s suggested that this is the reason behind the increase in cannabis use, although it’s noted that use of the drug has increased among most of the EU.

The study also looks briefly at drug related crime noting, however, that drug prevalence and crime rates can often work independently. Nonetheless, they quote an independent Portuguese study that finds a nine percent increase in crime strongly linked to drugs from 1999 to 2003.

(Happily though, the amount of drugs seized between the four years 1995-1999 and the 2000-2004 period have increased over one hundred percent. As Portugal is a gateway into Europe for drugs from Columbia that’s a positive outcome for the EU as a whole.)

Ultimately the Beckley authors arrive at the same conclusions as Greenwald, specifically that de-criminalisation has effectively shifted the focus to early intervention and treatment and been successful in reducing problems from drug use. But unlike Greenwald they’re careful to point out that any lessons from Portuguese de-criminalisation policy can only be seen in the Portuguese context, and on how much the success of the law depended on a good operating infrastructure.

In other words, you can’t just whack in a de-criminalisation strategy and expect results without a good operating system, as they put it. Indeed, according to their consultation with what they call “key shareholders” (presumably those involved in implementing the policy) the positive outcomes were less than expected, reasons include a lack of collaboration, resources and media education. One of the results from these deficiencies is the growing sense that drug use is becoming more socially accepted among the young.

Greenwald’s paper was released in April and has since been lauded by advocates of drug liberalisation around the world. And why shouldn’t they? It paints an almost glowing picture of the Portuguese policy that ties neatly into their base intuitions and prejudices. Those who want to change the ‘war on drugs’ would be better served by putting the Beckley report in their top drawer, as it contains the most balanced lessons to be extracted from the Portuguese experiment.

ENDS