The policy-reform efforts of countries such as Portugal and Switzerland have created contradictions between national law and the obligations set in the UN Conventions on drug control. A New Convention on Illegal Drugs is now needed and it must appropriately address the pressing public health, social order and personal freedom issues that surround the use of illegal drugs.
Decriminalisation of drug use
Criminalising users pushes them away from health services out of fear of arrest, drives them into the shadows, and locks them up in prisons, which serve as schools for crime . Several countries have therefore introduced some form of decriminalisation . Drug users are absolved from arrest and prosecution for drug use and for preparatory acts like the acquisition, possession or cultivation of drugs for personal use. In some countries any type of sanction is removed, in other countries criminal sanctions only are removed, coupled with either maintaining administrative penalties or referral to treatment or education.
The key example here is that of Portugal, which decriminalised the possession of personal use of certain quantities of drugs whilst expanding access to treatment. Whilst there was a mild increase in the usage of marijuana, there was also an increase in the number of addicts in treatment, reductions in drug-related harms, problematic use, and in criminal justice overcrowding.
A threshold at which possession is judged to be for personal use rather than supply needs to be established. The decisive determinant should be the intent associated with the possession rather than the exact amount. Only a few countries use quantity as the sole criterion to determine whether the drugs being possessed are intended for personal use or are intended to be traded to others.
Alternatives to incarceration
Putting dependent drug users in prison for acquisitive crimes (crimes including burglary and theft committed by drug users to fund their addictions) is limiting their chances of entering treatment and completing a successful recovery. There are many jurisdictions that have introduced diversion schemes offering treatment instead of imprisonment for drug-related offences. In order to be effective, treatment should be combined with rehabilitation, social and healthcare provision. Services offered should not be compulsory nor involve the deprivation of liberty of an individual; offenders should still have a choice between accepting treatment and assistance, or facing imprisonment or other administrative sanctions. Such diversion schemes have been shown drastically to reduce crimes like burglary and petty theft .
In countries where drug-related violence is a major problem, experimental schemes of selective prosecution have proven successful in reducing drug-related homicide. For example, members of criminal groups involved in drug trafficking have been offered non-prosecution in return for refraining from violence. They were informed that if any member was found to be implicated in violent offences, the group would be prosecuted for drug offences. This dramatically reduced the level of drug-related violence, something arrests and incarceration had not been able to accomplish.
Proportionality of sentences
In many countries, partly under pressure from the 1988 Trafficking Convention, sentencing levels for drug trafficking offences became completely disproportional and can be regarded as violations of human rights.For example, sentences for drug offenders in New York State are among the most punitive in the US. According to a Human Rights Watch Report:
The introduction of mandatory minimum tariffs and longer prison sentences has vastly increased incarceration rates in some countries . Meanwhile studies have shown that such sentences have little or no effect on whether a user will re-offend when compared with alternative community sanctions or shorter prison terms . Harsh sentencing regimes also have not made a measurable impact on the availability or price of drugs, while the social impact in terms of disrupting family lives has been dramatic. Mandatory minimums and ‘three strikes you’re out’ schemes should be abolished, as should the death penalty for drug offences.
Countries such as the UK, Ecuador, Argentina and New Zealand are in the process of reviewing their sentencing guidelines for drug offences, and proposals are tabled to significantly lower sentencing levels for low and mid-level traders. Ecuador already issued a pardon for some 3,000 people who had spent more than a year in prison for offences involving less than two kilograms of any type of drug, some with convictions of more than 10 years. In the Netherlands between 2003 and 2005 the authorities decided that cocaine couriers arriving in the country should simply be sent back to their place of origin and the drugs confiscated rather than the couriers being incarcerated.
The benefit of basic harm reduction services like needle exchanges and substitution treatment in the context of HIV/AIDS prevention are beyond doubt and endorsed and promoted by UN agencies. The challenge here is to scale up and reach universal access. Effective implementation, however, is only possible within a legal environment in which drug users are not prosecuted. Hence, access to healthcare services should not require applicants to first stop their drug use, and should allow them to enter programmes without fear of arrest.
Countries including Switzerland, Portugal, Spain, Germany, the Netherlands, Norway, Canada and Australia have introduced more advanced harm reduction practices with very promising results. These include heroin prescription (instead of methadone maintenance, as heroin prescription is easier to reduce gradually and methadone’s efficacy as a treatment is doubted by many doctors) and drug consumption rooms for the most problematic users, where users can consume drugs in a supervised environment (e.g. Insite in Vancouver). Evidence has shown that these approaches reduce drug-related deaths and drug-related crime, and bring the most problematic users into contact with treatment options that they would otherwise stay away from . The experimentation and development of effective harm reduction programmes for stimulants such as crack cocaine and methamphetamines is urgently needed.
Applying the harm reduction principle to policies targeting the supply and production of drugs is still in its pioneer stage. The acceptance, however, of the fact that drug use will always continue at a certain level, means that drug production will also continue to exist. Similar to the introduction of harm reduction on the demand side, supply-side policies should no longer only aim to reduce supply (through development of an economically viable alternative crop, crop eradication, interdiction, dismantling of trafficking groups, etc), but should also aim to reduce the harms associated with the continued supply, such as environmental degradation, drug-related violence and corruption.
Reclassification of drugs
A more rational classification of psychoactive substances according to their associated health risks, coupled with a better understanding of drug markets and the difference between recreational use and more problematic patterns of abuse, should become a cornerstone for future drug policy.
Two attempts have been undertaken by scientific panels in the UK and the Netherlands to develop a rational scale to assess the harmfulness of drugs, looking at the toxicity (acute or chronic physical harm), the potential for dependency and social harm at individual, family and society levels . All psychoactive substances irrespective of their current legal status need to be included in such a comparative assessment, including alcohol, tobacco and pharmaceutical drugs.
One of the recurring themes of the Beckley Foundation seminars over the last few years has been highlighting the haphazard and inflexible nature of the current classification system for illegal drugs, which often bears little relationship to the real harms (and in some cases medical and therapeutic uses) of the different substances, and omits any comparison with legal and prescribed drugs which can be even more dangerous to their users and more costly to society.
The Scale of Harm, developed from Beckley Foundation work, offers a systematic framework and process that could be used by current regulatory bodies to assess the harm of current and future drugs of abuse, and can readily accommodate new evidence as and when it emerges. This system of classification, based on the scoring of harms by experts, on the basis of scientific evidence, has much to commend.
This approach provides a comprehensive and transparent process for assessment of the danger of drugs, and builds on earlier approaches to this issue but covers more parameters of harm and more drugs.
The system is rigorous and transparent, and involves a formal, quantitative assessment of several aspects of harm. It can easily be updated as knowledge advances.
Cannabis is the best candidate substance for this first change in legal approach . Not a single expert in the field would now argue that cannabis belongs in the same category as heroin where it was placed in the 1961 Single Convention. Worldwide, it is the most used illegal drug and making criminal sanctions tougher seems to have hardly any impact on rates of cannabis use .
Quite a few countries, therefore, in practice already treat cannabis differently, with lower sentences, decriminalisation or lower priority for law enforcement.
Cannabis use amounts to nearly 80% of total global drug consumption, so regulating just this drug could cause a significant collapse in the global drug trafficking market.
There is also evidence to suggest that the unregulated production of higher strength strains, with a greater ratio of Tetrahydrocannabinol (THC) to Cannabidiol (CBD) causes more mental health issues. Regulation could also control the strength of cannabis allowing users greater control of what they consume (much the same way as you can choose different strengths of alcohol to consume). The Beckley Foundation in collaboration with Dr Paul Morrison of the Institute of Psychiatry is currently using EEG to study the differing effects of THC and CBD on brain functioning.
xWhilst no nation has legalised cannabis, some jurisdictions have gone further towards introducing models similar to a regulated market. The Dutch coffee shop system, where licensed shops are in practice allowed to sell cannabis, the medical marijuana model in certain US states, where cannabis is available from licensed dispensaries with a doctor’s certificate of recommendation, or the establishment of co-operatives in Spain, where cannabis is allowed to be sold to members on a not-for profit basis as an attempt to organise a legally-regulated supply for decriminalised recreational use, are the three best examples of legally imperfect attempts, as they are still unable to introduce legislative regulation due to the 1961, 1971 and 1988 UN Conventions.
Considering the prevalence of its use and its low position on the scale of harm index, it is time for some countries to gather the courage to introduce a fully legally-regulated market for cannabis. As well as the benefits already outlined, regulation will ensure quality production, labelling according to strength and the ratio of THC to CBD, and reduce the barriers to further medical and scientific research (See New Approaches – Therapeutic Potential).
With regard to other plants, there are convincing arguments to allow regulated markets in mild stimulants in their natural form such as coca, khat, ephedra and kratom. Prohibition has led to an illegal market dominated by more concentrated and more harmful derivates.
The attempts by Bolivia and Thailand to lift the bans on the coca leaf and kratom (a medicinal leaf) respectively are vitally important in this regard. These leaves are natural and represent integral parts of the indigenous cultures of the two countries. In both cases, criminalising these leaves is not necessary and indeed counter-productive given their longstanding unproblematic use.The legal statuses of the use of psychoactive plants, such as peyote, psilocybin and the ayahuasca brew for spiritual practices also need further clarification. Recent court rulings in the Oregon, USA have begun this process with ayahuaca for religious purposes, but much more needs to be done.
‘From Coercion to Cohesion’ is a paper, published by the UN, which discusses the possible ways of implementing a drugs policy which treats drug addiction as a health matter rather than a criminal matter.
 See for example: Allen, L, Trace, M & Klein, A (2004), Decriminalisation of Drugs in Portugal: A Current Overview, DrugScope and The Beckley Foundation, London
 Nutt, D, King, L, Saulsbury, W & Blakemore, C (2007) Development of a Rational Scale to Assess the Harm of Drugs of Potential Misuse
 Weil, A (1981) The Therapeutic Value of Coca in Contemporary Medicine, Journal of Ethnopharmacology
 Witness for instance the message from the 1998 UN Special Session of the General Assembly on Countering the World Drug Problem – “A Drug Free World – We Can Do It!”. Ten years later, the goal of “eliminating or significantly reducing” the drug trade by 2008 had been finessed into “2008 was set as a target date for achieving ’significant and measurable results’ in drug control.” See note 2 for evidence that even this modest goal was not achieved.
 See for example: Seccombe (1995) Squeezing the Balloon: International Drugs Policy. Drug and Alcohol Review US Department of Health and Human Services estimate that around 10million in the US are in need of substance abuse treatment but are yet to receive it.
 Hughes, C & Stevens, A (2010) What Can We Learn From The Portuguese Decriminalisation of Illicit Drugs? British Journal of Criminology.
 Greenwald (2009) Drug Decriminalisation in Portugal: Lessons for Creating Fair and Successful Drug Policies. Cato Institute
 National Treatment Improvement Evaluation Study 2004.
 Human Rights Watch, ‘Human Rights Violations in the United States – Cruel and Usual: Disproportionate Sentences for New York Drug Offenders’, 1997
 Smith, A & Pollack, H (1999) Curtailing the Sentencing Power of Trial Judges: The Unintended Consequences. American Judges Association Court Review
 See for instance: US Department of Justice (1994) An Analysis of Non-Violent Drug Offenders with Minimal Criminal Histories
 Sees, K et al. (2000) Methadone Maintenance vs. 180-Day Psychosocially Enriched Detoxification for Treatment of Opiod Dependence: A Randomized Controlled Trial. Journal of the American Medical Association.
 See note 5. Room, R et al. (2008) Cannabis Policy: Moving Beyond Stalemate. The Beckley Foundation
 Hall, W & Pacula, R (2003) Cannabis Use and Dependence: Public Health and Public Policy. Cambridge University Press.