The key considerations for the decriminalisation of drug use

In our last INHSU 2021 satellite session, we welcomed a global panel of experts to discuss the decriminalisation of drugs. The lively session gave real-life examples of decriminalisation models and shared valuable insights into how decriminalisation could positively impact the health and wellbeing of people who use drugs globally.

The session was chaired by Professor Alison Ritter from the Drug Policy Modelling Program at the University of New South Wales, Sydney. Alison was joined by Jean-Maxence Granier, Chair of Asud, Dr. Marie Jauffret-Roustide from Inserm, A/Prof Caitlin Hughes from Flinders University, Hon. Fortune Daniel Molokela-Tsiye, Member of Parliament of Zimbabwe and National Assembly Movement for Democratic Change Alliance, Caitlin Shane, Lawyer at Pivot Legal Society and Shaun Shelly, chair of the South African Network of People Who Use Drugs (SANPUD).

“There has been a long history of criminal penalties, discrimination and multiple forms of surveillance against people who use drugs,” Alison said, opening the session. “One solution that is gaining more traction is to remove the penalties for personal drug use.”

As the subject of decriminalisation becomes a hot topic globally, common questions, concerns and considerations have appeared. This session aimed to delve into each of them.

1. Should all drugs be decriminalised?

“First up, we shouldn’t be criminalising someone for putting something into their body,” said Mr Shaun Shelly, from SANPUD. “No matter what drug type it is.”

Shaun expressed that criminalisation very rarely solves the issues or makes a positive difference to people’s lives – “It’s not only a pointless exercise but it also violates people’s rights in terms of respecting a person’s autonomy.”

He pointed out that with so many legal drugs available, the use of illegal drugs drills down to a moral issue.

Caitlin Hughes from Flinders University agreed, speaking about how most existing decriminalisation models are cannabis only, but countries such as Portugal, Germany and Czech Republic have applied decriminalisation to all illicit drugs.

“What we see is that decriminalisation of all illicit drugs is when you get the maximum benefit from reforms,” Caitlin explained. “The ultimate aim is about reducing the harms, and people taking drugs such as heroin or amphetamines face the most stigma and barriers to accessing healthcare, harm reduction, or social services.”

The takeaway from Caitlin is clear; from a research perspective, to maximise benefits, decriminalisation needs to apply to all drugs.

“We’re kidding ourselves if we think it (prohibition) is about dangers and harms, otherwise extreme sports would be banned too,” explained Shaun Shelly from SANPUD.

2. What about drugs that are seen as more dangerous?

Drugs like cannabis and ecstasy are often seen as less harmful than drugs like cocaine and heroin. Dr. Marie Jauffret-Roustide doesn’t necessarily agree, explaining that the type of drug is only one part of the equation.

“Some people have troubles with cannabis, some people handle heroin very well,” Marie explained. “The context of how people are using drugs is just as important as what drugs they use. But it is also very clear that prohibition causes so much harm.”

Asud’s Jean-Maxence Granier agreed, giving the example of alcohol that has been proven to cause short and long terms harm. “When a product is legal we think it is not dangerous (such as alcohol),” he says. “We think it is the products that are dangerous but it is the laws.”

3. Can criminalisation be replaced with other sanctions?

A common model for decriminalisation is to remove the criminal sanctions but put in place mandatory treatment, fines (civil penalties), and surveillance.

“If a goal of decriminalisation is to reduce stigma and fear of arrest, then replacing criminal with administrative penalties simply won’t work,” explained Caitlin Shane from Pivot Legal. “The same harms exist.”

She also pointed out that coercive treatment tends not to work either, but also – importantly – it makes the wrong assumption that all people who use drugs require medicalisation. “People don’t need to be abstinent,” Caitlin expressed. “Not all people who use drugs have a negative relationship with drugs or experience ‘substance use disorders’.”

Jean-Maxence spoke about other issues with the model including personal choice and practical considerations such as housing. Marie Jauffret-Roustide, also from France, agreed. “People living in precarious positions need access to things like housing, not just medicalised treatment.”

4. What is a reasonable amount of drugs for personal possession?

Caitlin Hughes discussed how possession is inextricably part of personal consumption, so this needs to be factored into laws. However, the threshold of what is ‘reasonable’ is not an easy answer.

“If you’re setting a threshold it needs to be fit for purpose for the context of where it is being used,” she explained. “Otherwise you’ll end up funnelling more people into the criminal justice system rather than less.”

For some countries, the overwhelmed criminal justice system is a primary driver of the decriminalisation of drug use. Hon. Fortune Daniel Molokela-Tsiye from Zimbabwe spoke about how his country is moving towards a decriminalisation model.

“Our justice system is not trusted or reliable,” he said. “And the prison system is already overwhelmed with real criminal cases. It’s very important to address decriminalisation from a social-economical way. Prosecuting people for personal drug use would overwhelm our prison system and also take away the futures of young people in our country.”

Another interesting point impacting potential thresholds is the purity of drugs, and how it also impacts how much someone will buy. The lower quality of drugs, the more someone may buy for personal use, but this may push them across the threshold.

5. At what point do you become a drug seller?

An interesting part of the discussion was around where you draw the line from being someone who uses drugs to someone who is selling drugs, which is a core part of any decriminalisation model.

“We have created this false dichotomy between drug users and drug dealers,” said Caitlin Shane. “Whereas the truth is lots of people who deal drugs use drugs, and lots of people who use drugs deal drugs. In making that dichotomy we villainise drug dealers, ignoring the reality that they’re actually serving a valuable purpose in the face of governments that refuse to legally regulate substances or provide a safe supply.”

Shaun Shelly from South Africa spoke about the need to focus on transnational crime, not local selling as there is a huge difference in intent and harm. For transnational criminal enterprises, drugs are simply a commodity with a huge margin for profit because they are prohibited. Low-level dealing, sharing, splitting, the lower-level supply chain should be easy to distinguish from higher-level crime.

6. How do you engage stakeholders?

Marie Jauffret-Roustide shared the example of Switzerland, one of the first countries to introduce drug consumption rooms, among other harm reduction methods.

“One of the key reasons for Switzerland’s harm reduction success is their stakeholder engagement, especially with local residents,” she said. “They also disseminated very good information to communities about drugs, harm reduction, and the decriminalisation to stop some of the fears around decriminalisation increasing drug use in their areas.”

This is the opposite to other countries where drugs and drug use are not spoken about, which only reinforces the stigma and shame felt by people who use drugs. “All the good models in Europe around decriminalisation and harm reduction involve stakeholders on a local level, not just national,” she concluded.

The police play a core role too. Shaun Shelly from SANPUD shared an experience of local police officers who have become champions of harm reduction after being invited by SANPUD to get involved in their drug policy week and events. “It’s about humanizing people,” he said.

Chair Alison Ritter discussed the need to ensure people with lived experiences are also included in stakeholder engagement. “We need to elevate the voices of people who have suffered discrimination and marginalisation.”

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