Prohibition with Cautioning or Diversion
Within this category cannabis use is prohibited by criminal law, yet alternative measures (e.g. pre- or post-trial diversion to treatment) at various stages of the criminal process reduce the severity of punitive consequences. Therefore, instead of an arrest, the matter is dealt with by a warning or cautioning the offender about their behaviour and its possible consequences.
In most instances, the key impacts of criminal prohibition (e.g. criminal conviction/record) remain despite depenalisation provisions. However, offenders are moved from the criminal justice system and its mainly punitive consequences to education, treatment or other interventions typically aimed at changing behaviour.
Examples of countries that have implemented this type of reform include: France, a number of Australian States, Canada, Great Britain, several US States and Brazil.
Example Case Study 1: France
In France, cannabis possession is technically a criminal offence according to the narcotics control law. Available information suggests however that for personal cannabis possession offences, there may be no further action taken in the majority of cases, that is, prosecution is waived in the context of an overall diminishing proportion (e.g. 10%) of cases of illegal drug possession being prosecuted. It is suggested that small-time drug users are mainly dealt with by therapeutic alternatives or a request to contact social or health services, thereby avoiding criminal prosecution. Furthermore, legislation passed in 1999 provides a range of diversion measures for ‘certain minor offences, particularly related to mere drug use’, including a voluntary fine payment or community service, in lieu of criminal prosecution.
Example Case Study 2: Brazil
Brazilian legislation passed in 2006 partially decriminalised the possession of drugs for personal use. Previously, those caught possessing small amounts of drugs faced between six months and two years in prison. However, this reform stated that prison sentences would no longer apply and would be replaced by educational measures and community services. In the same law, the minimum penalties for drug traffickers and sellers were increased. Whilst decriminalising the use of drugs is major progress, it would seem disproportionate to establish maximum jail sentences of five years for the sale of very minor quantities of drugs.
If someone is enlisted on an education programme and fails to complete it, then they are issued a fine between £16 and £40. However, the current minimum wage is set at £0.90 per hour.
Ministers are currently examining a number of reform options, including the total decriminalisation of the possession of drugs for personal consumption and the lowering of sentence levels for small-scale traffickers.
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