by Philip Bean
The drugs debate has started up again. This time the questions raised are more than those surrounding cannabis, but of decriminalisation of all controlled drugs. It has also attracted those in the highest political positions, including the Deputy Prime Minister and the Prime Minister himself. Driving the debate is a familiar theme: that the war on drugs has failed and we need a new approach. The answer it is said is to decriminalise, i.e. no longer make it an offence to possess controlled drugs where possession is for personal use. This, it is argued, has a number of advantages; it will save police time, reduce the number of offenders and thereby the costs of court appearances, and reduce the impact of crime, especially organised crime.
This is not a new argument. The Home Affairs Select Committee considered it in 2002 and said that, whilst it accepted that to decriminalise the possession of drugs for personal use might appear to remove some obstacles, it would add others, not least that it would send the wrong message to the majority of young people who did not use drugs. (paras 67-70)¹. The Committee was also concerned about the possible recruitment of new users. For example, it said it might give suppliers an incentive to seek to expand the users market. It would also engage enforcement agencies in a murky area, for how can you distinguish between user and supplier, particularly small scale social suppliers? The Committee also said it might also diminish respect for the law, as it would embrace or offer a fundamental inconsistency: that is it is permissible to use drugs, but not permissible to supply them – few, it seems, suggest that supplying drugs should be decriminalised.
There are some commentators who say ‘The War on Drugs’ no longer exists, nor has it for a number of years. Capitulation, they say, occurred long ago; what is in vogue nowadays is decriminalisation by the backdoor. That is to say, law enforcement agencies and the Courts take a “softly, softly” approach to possession of illegal drugs, even for heroin and cocaine, and particularly ecstasy, where many are given a caution and few go to prison. In this they are partially correct: well over half of all drug offenders are cautioned (slightly fewer for possession of crack cocaine and heroin i.e. about 40%), and only about 9% of all drug offenders are sent to prison, almost always for supply, with only about 4% of all drug offenders going to prison for possession.
Yet, however appealing the decriminalisation argument may appear, certain questions remain unanswered, the most difficult being: would it apply to juveniles? Would children under 16 be allowed to possess heroin or cocaine? If not, we shall have a curious form of prohibition applying to a certain age group, and strangely at odds with the restricted use of tobacco and alcohol applied to juveniles nowadays. As for the other claims, it might not save much police time, for it is doubtful if the police target a drug, more likely a drug user, where the aim is mainly to disrupt supply. It would certainly reduce Court appearances but this could also be achieved by additional use of cautions. How about the claim that it would take out of the criminal justice system an otherwise law-abiding group of drug users? This is, however, one of the least appealing features of the current debate. Why are drug laws given special attention? We do not say the Theft Act criminalizes an otherwise law-abiding group of burglars or shoplifters.
Finally, would it reduce the impact of organised crime, a claim made by many critics? Clearly not, if juveniles were prohibited from use. And anyway, the claim is not to legalise all drugs, i.e. allow them to be purchased freely and without controls, but to refrain from prosecuting those who have small amounts for personal use. As long as there are controls, there will be efforts to circumnavigate them.
What this, or any debate about decriminalisation, should do is concentrate more on sentencing practices and the variations in use of cautions and other non-custodial sentences throughout England and Wales, where evidence for such variations is powerful. It should also concentrate on questions about the justification for banning the use of certain substances, where we continue to pile on banning orders for new drugs at an alarming rate, with little or no consideration for, or evidence of, their harmfulness. Increase the use of cautions for possession, by all means, but look too at other matters which are more urgent.
1. The Government`s Drug Policy is it Working? (The Governments reply to the Third Report from the Home Affairs Committee Session 2001-2002.) HC 318 Cm5573
Professor Philip Bean is Emeritus Professor of Criminology and Criminal Justice, University of Loughborough and the author of Legalising Drugs; Debates and Dilemmas published by The Policy Press 2010.