Decriminalisation: the unanswered questions

At a press conference on April 15, Prime Minister Joseph Muscat hinted at an imminent policy change on drugs. Without giving any specifics, he said that the next issue to be discussed is “drug decriminalisation in certain circumstances”.

Quizzed on the details, Justice Minister Owen Bonnici revealed that a White Paper will be launched before the end of the year… but refused to divulge any further information. “At this stage it is not opportune to comment except that the government is seeking, by means of legislative interventions, to provide assistance to genuine victims of drug abuse,” was all he would say.

At a glance, however, this seems to refer to a different policy from the one alluded to by Muscat last Monday. ‘Decriminalisation’, in itself, cannot be interpreted as ‘assistance’ on a par with rehabilitation – which in any case is already on offer for people charged with drug-related offences. It merely means that an offence will no longer carry criminal penalties at law… and this in turn opens a raft of other questions.

How will the proposed system actually work in practice? If, for instance, drug possession is to be decriminalised only for first-time users… how are the police to know if a user has never been apprehended before, short of arresting the suspect and conducting the usual police investigations? Moreover: will possession of all drugs be decriminalised? Or does the policy intend to distinguish between different drugs on the basis of harmfulness to health and society?

Faced with these questions, government has so far chosen to keeps its cards close to its chest. But other people are free to comment at will: and reactions so far seem to indicate a degree of scepticism over the proposal… not to mention widespread confusion between ‘decriminalisation’ and ‘legalisation’, as well as fears that this will be the thin end of a wedge leading to other controversial reforms (e.g., abortion, euthanasia, etc).

The current drug situation
Although Bonnici avoided a direct question on the issue, it would appear that his government’s drive to reform the drug laws stems from a perceived failure of Malta’s official drug policy thus far.

On paper, the results of decades of ‘zero tolerance’ do not look very encouraging. In 2010, Dr George Grech – clinical director of government’s anti-drugs agency Sedqa – bluntly declared that the war on drugs was lost.

“Prison is not giving results – it’s no secret there are drugs in prison, and we have come to learn that incarceration does not work with people who are purely drug addicts,” Dr Grech said. Describing the need for a discussion as ‘urgent’, he added: “We have to face this discussion soon, whether we want to or not. The truth is, our prison is already full enough.”

Subsequent revelations of fully-fledged drug trafficking operations ensconced within Kordin prisons did not help ease the perception that Malta’s drug policies were an abject failure. Nor did the publication of successive reports, both by Sedqa and the equivalent European drug monitoring agencies, which revealed a consistent increase in problem drug use over time.

Since 2010, Sedqa has warned of an ‘explosion’ in cocaine use, while European surveys place Malta towards the top of the European table for problem heroin use – a phenomenon that the same surveys indicate is on the decline elsewhere in Europe.

Sedqa officials declined to comment officially for this article, as (with Easter getting in the way) there was no time to get approval for comments. But professionals active in the field were willing to offer their views in private.

While broadly agreeing that prison is no place for people with drug policies, experts in drug rehabilitation nonetheless expressed concern that decriminalisation, on its own, would fail to address new problems associated with an ever-changing drug market.

One concern is the possibility that any reform may be limited only to cannabis, while overlooking the emergence and proliferation of new, synthetic drugs – some of which have yet to be classified. Any reform, they argue, must take the entire drugs landscape into account. Furthermore, cannabis itself is constantly changing, as a result of laboratory efforts to increase the levels of its psychoactive ingredient, THC.
This has resulted in more potent strains of cannabis coming onto the market, increasing the possibility of associated health risks… especially concerning psychosis. It is a misconception, therefore, to describe cannabis as ‘harmless’.

Nonetheless, instead of criminal procedures for drug users, rehab professionals advocate the setting up of a National Drugs Court of the kind proposed by the former administration in 2011, and already in place in countries such as he USA: where there was a 70% drop in drug-related crime since drug cases were referred to non-criminal tribunals.

Policy as deterrent
Meanwhile, under scrutiny it appears that the perception of the Maltese justice system as being draconian when it comes to drugs may need to be revisited.

Criminal lawyer Joseph Giglio, who has seen a considerable number of drug-related cases in court, argues that the present system rarely comes down heavily on cases of possession for personal use.

“According to the criminal code, ‘simple possession’ – that is, for personal use – may be liable to a prison term of up to one year, and/or a fine. The reality, however, is that people who are brought to court charged with ‘simple possession’ are almost never imprisoned. There are alternative sanctions: apart from the fine, there is the possibility of a probation order, or – more commonly – a conditional discharge.”
Current court practices are such that the general rule is for a conditional discharge to be handed down in such cases, he adds.
Giglio personally disagrees with decriminalisation, arguing that the present system acts as a deterrent against drug use.

“I can only comment about what I know, which is the current system. In my experience, the fact that drug possession may involve court procedures may act as a deterrent with some people.”

Decriminalisation, he explains, would reduce drug possession to the same level of offence as a parking violation. “As with parking violations, non-criminal consequences clearly do not serve as a deterrent. If people know they might face criminal procedures, it might make them think twice.”

The Portugal factor
Giglio however admits that he is unfamiliar with how the decriminalisation model works in other countries. Both Sedqa and Alternattiva Demokratika (which favours decriminalisation) point towards the experience of Portugal, which decriminalised drug possession in 2001.

This is how Time Magazine describes the policy 13 years later: “Under Portugal’s decriminalisation policy, users are not arrested but are instead referred by the police to a “dissuasion” commission. The commission is made up of three people, typically an attorney, a social worker and a medical professional. It determines whether the person is addicted – if so, they can be referred to treatment or given specific penalties like being banned from a particular neighborhood or losing a driver’s license. Treatment is not forced, however, and those who are not addicted are often not sanctioned in any way. Only about 5% to 6% of users are brought before such commissions a second time in the same year.”

Ten years into the new drug regime, The British Journal of Criminology concluded that Portugal’s experiment resulted in “less teen drug use, fewer HIV infections, fewer AIDS cases and more drugs seized by law enforcement. Adult drug use rates did slightly increase – but this increase was not greater than that seen in nearby countries that did not change their drug policies. The use of drugs by injection declined.”

Comparable statistics for Malta suggest the clean reverse of these trends. European surveys suggest that teenage drug use is on the increase, as is drug use through intravenous methods. AIDS and HIV have likewise increased, though there may be other factors contributing to this phenomenon.

Robert Callus, AD’s spokesperson for drug policy, explains that the Green Party’s own calls for decriminalisation are fuelled by Portugal’s success.

“AD’s policy, largely based on Portugal’s model, suggests three main changes to Maltese law: a) Decriminalise drugs for personal use; b) Classify between soft and hard drugs; c) Cultivation for personal use should be treated as simple possession (thus, if decriminalised, not a crime) and not a separate crime that carries a mandatory prison sentence just because the drug happens to be in a form of a plant.”

Callus also rejects the ‘deterrent’ argument. “Unfortunately many people still think that criminalising drug users is some sort of prevention, that it serves a deterrent. It does not and there is plenty of research worldwide to prove this. The most classic case is that of Portugal… which not only didn’t it see a significant spike in drug use but [since 2001], drug related crime and disease have significantly decreased. On the other hand, countries with draconian laws on drugs (including Malta) are no better off and drug consumption is significantly on the rise.”

Decriminalisation, he adds, will not increase drug use. “It will only decrease the harm caused by the war on drugs.”

Another grey area in dealing with drug cases concerns drug users who seek medical attention. Callus draws attention to the fact that Malta’s drug policy may discourage people from seeking help, with possibly fatal consequences.

“We also believe in a no questions asked policy in the case of people taken to hospital suffering from overdose, as well as for anyone accompanying them. Present policy is resulting in the police being notified, thus many people refuse to seek help following an overdose. This is leading to unnecessary deaths.”

Decriminalisation vs legalisation
Portugal, however, is not the only international model on offer. More recently, Uruguay took the initiative of legalizing marijuana altogether: a trend also taken up in a number of US States such as Colorado.

Predictably this has given rise to confusion between the two approaches. For instance, columnist Andrew Borg Cardona – formerly president of the Chamber of Advocates – declared that the government was contemplating “legalisation of certain drugs”… when in fact it was decriminalisation, not legalisation, that is being contemplated.

The difference is significant. It is perfectly possible to be in favour of decriminalisation but against legalisation... as exemplified by Angelo Micallef: former KSU president, now active within the Nationalist Party’s youth movement MZPN.

“There is a stark difference between legalization and decriminalisation. To legalise drugs means making drugs available for sale just like any other medicinal product. To decriminalise drugs means to not make it a crime to be caught in possession of drugs and/or consuming drugs.”

Micallef, who has argued against legalisation in the past, agrees that a discussion on decriminalisation is now needed. “It is clear that sending someone to prison for mere possession for personal use is not only not appropriate but is counterproductive. It is also clear that our national policy on drugs needs reviewing in this sense.

"People with a drug addiction need assistance not a jail sentence. It thus makes sense to decriminalise so called soft drugs for personal use, more so in the case of first time users. In this way we would stop needlessly involving the police and the courts in a matter which should not concern them and tackle the challenge in a more appropriate manner.”

As for legalisation, Micallef believes such a move to be somewhat risky and at this stage should not be opted for. But as government is clearly not pursuing this policy, there is little point in exploring it any further… except perhaps to consider the political implications of what is likely to develop into a future war of words.

The political considerations
Unlike decriminalisation, ‘legalisation’ also conjures up images of permissiveness that clearly go beyond the scope of the proposed reform. As such, there may well be a political motive to confuse the two otherwise disparate issues.

There are other political implications also. Given the evident reluctance of government to elaborate any further, questions may be raised concerning its own motives in making such a half-baked announcement precisely now. Why not wait until government is ready to launch the white paper before announcing the policy change? Why not wait until answers are ready to hand, to legitimate questions on a sensitive issue that is of great concern to the public?

One possible explanation is that, coming so soon after the civil unions bill was approved by parliament – with the Opposition abstaining, and incurring jeers for its pains – it would seem the Prime Minister is keen to exploit an already gaping wound in a Nationalist Party that is torn between liberal and conservative elements.

By casually dropping hints of a controversial reform that will challenge the ‘zero tolerance’ policy held by all PN administrations since 1987, Muscat may also have issued an indirect challenge to his political adversaries to take a stand on an issue which he knows is internally divisive.

Judging by the PN’s initial reactions, it would appear this strategy (if such it is) is already working. Opposition leader Simon Busuttil passed up an opportunity to explain his party’s views on decriminalisation, arguing (not unreasonably) that it is impossible to formulate a position until government provides more details on its plans.

But if Muscat’s proposed drug policy reform is intended to expose further divisions in the beleaguered PN, or to paint it into a corner where it cannot take any position at all… it is a highly risky strategy that might (some would argue, already has) expose similar rifts within his own party.

Past Labour governments have likewise defended a zero tolerance policy in their time, and former prime minister Alfred Sant – who had waged war on ‘drug barons’ in the 1990s – is on record stating he disagrees with decriminalisation. He is also a prominent candidate for the PL ahead of the European elections in June.

Contacted by this newspaper, Sant said he had no comment to make at this stage. “I have nothing to say about it. [AD chairman] Arnold Cassola tried to make an issue out of it in a recent televised debate, but it’s not an issue as far as I’m concerned…”

Sant likewise ignored questions regarding whether his own views are compatible with the party he intends to represent in the European Parliament.

It remains to be seen whether these apparent divergences of opinion between past and present Labour Party leaders will feature in the forthcoming electoral campaign. Clearly however, a starting pistol has been fired for what is likely to be the political controversy of tomorrow.