drug-related penal legislation and practice in europe · drug-related penal legislation and...
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Drug-related penal legislation and
practice in Europe
Drugs, crime and punishment;
where to draw the line?
Brendan HughesPrincipal Legal Analyst, EMCDDA
Tallinn University
7 March 2016
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Brendan.Hughes@emcdda.europa.eu
Personal possession in international law
Art. 3(2): Subject to its constitutional principles
and the basic concepts of its legal system, each
party shall […] establish as a criminal offence
[…] the possession, purchase or cultivation of
drugs […] for personal consumption…[UN Convention Against Illicit Traffic, 1988]
Safeguard clause
No requirement to penalise use itself
No requirement for conviction or prison
[No objective test for “criminal” offence]
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Not an offence (16)
Drug use / consumption –
an offence?
[DRAFT]
Criminal offence (8)
Non-criminal
offence (6)
(ELDD Topic Overview – Illegal Consumption)
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Possession of drugs for personal use (minor offences):
possibility of incarceration in laws
Incarceration possible:
For any drug;
For any drug other than
cannabis.
Incarceration not possible.
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Does the penalty vary by drug?
(ELDD Topic Overview –
Classification: EDR 2013, Fig 4.2)
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Do changes in legal sanctions result in observable changes in cannabis use rates?
With many caveats,
the best available
evidence shows no
clear impact of
penalty changes on
cannabis use.
(EMCDDA Annual
Report 2011, Ch.3)
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Brendan.Hughes@emcdda.europa.eu
Alternatives to punishment: UN Conventions
1988 UN Convention Against Illicit Traffic:
Art 3.4 “(c)…in appropriate [supply] cases of a minor nature, the Parties may provide, as alternatives
to conviction or punishment, …as well as, when the offender is a drug abuser, treatment and aftercare.
(d) The Parties may provide, …as an alternative to conviction or
punishment [for personal possession]…, measures for treatment,
education, aftercare, rehabilitation or social reintegration of the
offender.”
Also 1961 Single Convention, Art 36.1(b) (since 1971); and 1971 Psychotropics Convention, Art 22.1(b)
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Alternatives to punishment / coercive sanctions
Why choose ATP?
Individual: proportionate response, treat addiction, reduce
stigma
Society: reduce drug-related crime, reduce disease
transmission
State structure: reduce pressure and resources of criminal
justice system, courts, prisons
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Brendan.Hughes@emcdda.europa.eu
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Types of alternatives to punishment in Europe
Police Pros. Ct. Sentence
Kruithof et al (2016): Study on alternatives to coercive sanctions as response to drug law
offences and drug-related crimes. European Commission DG MHA / RAND Europe
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Brendan.Hughes@emcdda.europa.eu
ATPs – Design Factors
Limited Factor Encompassing
Criminal Legal system Administrative
Optional Direction to judiciary Compulsory
Selected sites Geographical availability Nationwide
Sentencing Stage of legal procedure Post-arrest
Addicted Offender diagnosis Any drug user
Drug use or personal
possessionOffence
Any offence linked with
drug use or minor
trafficking
Multiple exclusions, eg
Possession of more than
a small quantity; prior
criminal record; recidivists
Exclusion criteriaExcludes only very serious
offences
Addiction treatment Response availableTreatment, education,
aftercare, rehabilitation
Secure facility Treatment setting Wherever appropriate
Limited Number of places available Not limited
Paid by offender Cost Paid by state
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Brendan.Hughes@emcdda.europa.eu
Alternatives to punishment:implementation and effectiveness
Existing: 108 alternatives found.
Implementation: 78 had data on the number of times used.
Experts/data say most ATPs are
rarely used by judiciary.
Completion: 19 had data on the number of successful
completions. Completion rates vary widely.
What do we mean by “what works”?Heroin > Cannabis? 400 thefts > 20 thefts? …Reducing court time?
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What affects use of alternatives?
Decision-makers’ beliefs and practices• To drug use, drug users
• Performance monitoring
• Assessment of offender compliance, completion
Administrative factors• Availability of resources
• Bureaucratic procedures
• Relations between relevant systems
Legislative factors• Facilitating / restricting / absent laws
Contextual factors• Changes to policy / practice
• Criminal justice / public mood
Kruithof et al (2016): Study on alternatives to
coercive sanctions as response to drug law offences
and drug-related crimes.
European Commission DG MHA / RAND Europe
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Brendan.Hughes@emcdda.europa.eu
What affects success of alternatives?
Evidence is weak, but promising:
• Target the individual offender (eligibility, needs, risk
factors) [Criminal records / violent offenders!]
• Try to retain offender in treatment, motivated
• Address the implementation factors; some
restrictions are counterproductive.
• Monitor and evaluate!
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Brendan.Hughes@emcdda.europa.eu
For more information:
And upcoming: Kruithof et al (2016).
Interactive: ELDD; Penalties at a glance
YouTube: What is decriminalisation?
Report:
Sentencing
and other
outcomes
(2009)
European Drug Summer School 2016
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Two-week summer school involving
scientific experts from the EMCDDA
and keynote speakers.
5th Edition – about 150 from the EU,
US, Asia, Africa and Latin America
have already participated!
Registration
Phase 1: 7 January–1 March (early-bird discounts)
Phase 2: 16 March–30 May
For more information:
www.drugsummerschool.cies.iscte-iul.pt
Illicit Drugs in Europe:Demand , Supply and Public Policies
Lisbon 27 June-8 July 2016
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