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Decriminalisation or legalisation: injecting evidence in the drug law reform debate

We should all be concerned about our laws on illegal drugs because they affect all of us – people who use drugs; who have family members using drugs; health professionals seeing people for drug-related…

One argument for legalisation is it will move the problem away from police and the criminal justice system, where it currently dominates resources. AAP Image/Simon Mossman

We should all be concerned about our laws on illegal drugs because they affect all of us – people who use drugs; who have family members using drugs; health professionals seeing people for drug-related problems; ambulance and police officers in the front line of drug harms; and all of us who pay high insurance premiums because drug-related crime is extensive.

Drug-related offences also take up the lion’s share of the work of police, courts and prisons. But what can we do? Some people feel that we should legalise drugs – treat them like alcohol and tobacco, as regulated products. And legalisation doesn’t necessarily need to apply for every illegal drug.

Why legalise?

One of the arguments for legalisation is that it would eliminate (or at least significantly reduce) the illegal black market and criminal networks associated with the drug trade. Other arguments include moving the problem away from police and the criminal justice system and concentrating responses within health.

Governments could accrue taxation revenue from illegal drugs as they currently do from gambling, alcohol and tobacco. A regulated government monopoly could secure direct income; our research suggests this may be as high as $600 million a year for a regulated cannabis market in New South Wales.

The strongest argument against legalisation is that it would result in significant increases in drug use. We know that currently legal drugs, such as alcohol and tobacco, are widely consumed and associated with an extensive economic burden to society – including hospital admissions, alcoholism treatment programs and public nuisance. So why create an environment where this may also come to pass for currently illegal drugs?

The moral argument against legalisation suggests the use of illegal drugs is amoral, anti-social and otherwise not acceptable in today’s society. The concern is that legalisation would “send the wrong message”.

Unfortunately, there’s no direct research evidence on legalisation because no country has legalised drugs yet. But suppositions can be made about the extent of cost-savings to society.

The moral argument against legalisation is that it would send the wrong message. acidpix/Flickr

Indeed, some of our research on a regulated legal cannabis market suggests that there may not be the significant savings under a legalisation regime that some commentators have argued. But these are hypothetical exercises.

Decriminalisation

An alternative to legalisation is decriminalisation. Experts don’t agree on the terminology and there’s much confusion. But, in essence, decriminalisation refers to a reduction of legal penalties. This can be done either by changing them to civil penalties, such as fines, or by diverting drug use offenders away from a criminal conviction and into education or treatment options (also known as “diversion”).

Decriminalisation largely applies to drug use and possession offences, not to the sale or supply of drugs. Arguments in favour of decriminalisation include its focus on drug users rather than drug suppliers. The idea is to provide users with a more humane and sensible response to their drug use.

Decriminalisation has the potential to reduce the burden on police and the criminal justice system. It also removes the negative consequences (including stigma) associated with criminal convictions for drug use.

One argument against decriminalisation is that it doesn’t address the black market and criminal networks of drug selling. There are also concerns that it may lead to increased drug use but this assumes that current criminal penalties operate as a deterrent for some people.

The moral arguments noted above also apply to decriminalisation – lesser penalties may suggest that society approves of drug use.

Many countries, including Australia, have decriminalised cannabis use: measures include providing diversion programs (all Australian states and territories), and moving from criminal penalties to civil penalties (such as fines in South Australia, Australian Capital Territory and the Northern Territory).

Our team’s research on Portugal suggests that drug use rates don’t rise under decriminalisation, and there are measurable savings to the criminal justice system.

The moral argument against decriminalisation is that it suggests society approves of drug use. floresyplantas.net/Flickr

In Australia also, there hasn’t been a rise in cannabis use rates despite states and territories introducing civil penalties for users. And research on diverting drug use offenders away from a criminal conviction and into treatment has shown that these individuals are just as likely to succeed in treatment as those who attend voluntarily.

At the same time, research has also noted a negative side effect to the way in which decriminalisation currently operates in Australia – “net widening” - whereby more people are swept up into the criminal justice system than would have occurred otherwise under full prohibition because discretion by police is less likely and/or they do not fulfil their obligations.

Despite the largely supportive evidence base, politicians appear reluctant to proceed along the decriminalisation path. Some commentators have speculated that this is because of public opinion – decriminalisation is regarded as an unpopular policy choice.

But public opinion is largely in support of decriminalisation, where it concerns cannabis (though not decriminalisation for other illegal drugs). In the last national survey, more than 80% of Australians supported decriminalisation options for cannabis. The other reason for equivocal policy support, I believe, is a lack of clarity about the issues.

There’s poor understanding about the different models of decriminalisation and some basic confusion exists. Many people equate decriminalisation with legalisation, but as detailed above, they are very different in policy, intent and action.

Decriminalisation is also sometimes incorrectly confused with harm reduction services, such as injecting centres or prescribed heroin programs.

The Australia21 Report released last week to stimulate informed public debate is an important step foward. In order for the debate to progress, we need clarity of terms, and dispassionate presentation of what evidence we have. Every policy has both risks and benefits and we need to talk about these.

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34 Comments sorted by

  1. Robin Bell

    Research Academic Public Health, at University of Newcastle

    Excellent balanced article Alison. I hope that when considering decriminalisation of drugs people understand the harms related to use of these substances. The harms inflicted on users AND their families, friends and innocent strangers. Decriminalising doesn't make these harms go away. Just to highlight these consider the following:

    "Psychological distress and diagnoses or treatment for a mental illness continue to be highest among recent users of meth/amphetamines, ecstasy, cannabis, and cocaine…

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    1. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Robin Bell

      Robin,

      There is a vast difference between correlation and an implicit causation. For example I'd suspect that the vast majority of bike riders and drivers killed were males in the prime of their risk-taking years. Hence it should be expected that a high proportion would have alcohol or other drugs in their system (whatever that means).

      Last time I looked at this the tests employed showed trace evidence of THC within four days of consumption - this is from mouth swabs. Now unless we are claiming…

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    2. Robin Bell

      Research Academic Public Health, at University of Newcastle

      In reply to Peter Ormonde

      Points taken Peter. These are simply correlations, but nonetheless are similar correlations across a range of different circumstances with a similar theme; drugs associated with poor outcomes and significant harms..

      In each of these circumstances the damage done is disproportionate to the damage likely to be mitigated if decriminalisation is implemented. While this proposition can be easily contested, please consider the following.

      So far as children are concerned, we are morally, ethically…

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    3. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Robin Bell

      Yes I worry about morals when it comes to police and politicians... so should we all I reckon.

      Now one of us is getting tangled up here: "Causation is difficult to prove mainly due to the lack of evidence. What evidence we do have is unequivocal." Scant evidence is never unequivocal Robin - just thin.

      If deaths on the roads were really of great community concern - we would do something about them. We would limit speed in cars (as well as trucks), we would strip licences away for a single…

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    4. Danny Hoardern

      Analyst Programmer

      In reply to Robin Bell

      "A study of MVA fatalities in under 45s in Gosford and Wyong in 1996-98 found that two thirds of controllers (16 out of 24) tested positive for drugs, alcohol or both. 10 tested positive for delta-9-tetrahydrocannabinol"

      The study you mention only covers under 16 - 45's - if this were adjusted to the entire population you'd get the percentage of cannabis consumers: 15 per cent of Australians aged 15 - 64. Also note the small sample size, and there is also a correlation with risk taking and drug…

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    5. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Danny Hoardern

      Good comments Danny,

      We also have random drug testing in NSW.

      http://www.rta.nsw.gov.au/roadsafety/alcoholdrugs/drugdriving/roadsidetesting.html

      Apparently I'm assured that they only do this where there is probable cause - that is your driving suggests you are affected by drugs. Trouble is the test actually detects cannabis use during any time up to four days previously. But I can only assume one is fined for use rather than for driving under the influence, since that would be untenable in a court. Seems a curious business.

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    6. Danny Hoardern

      Analyst Programmer

      In reply to Peter Ormonde

      Interesting, and a different approach to QLD - here it is a random roadside test just like alcohol testing (although I don't think it is as common).

      Here apparently the test only shows positive for consumption up to four hours. Four days would be a very inaccurate impairment detection!

      It is great that we have these in place to dispel fears of plagues of stoned drivers (although I doubt there is much impairment - the science is sketchy).

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    7. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Danny Hoardern

      I'd check that out further if I were you Danny.

      Firstly the swab test is most expensive compared to the standard breathalyser and I suspect that the wallopers would not be hauling over an old bloke like me in a hat and a ute to make sure I hadn't been bonging on that morning.

      Secondly, I'd be pretty sure that if there was a test that pinned down consumption to a four hour window the NSW coppers would be using it. And the driver would be charged with driving under the influence of an illegal drug. But I'm sure they don't.

      I'll dig out some references tomorrow just to make sure when I'm not so buggered ... been digging holes all afternoon... time for a kip.

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    8. Danny Hoardern

      Analyst Programmer

      In reply to Peter Ormonde

      The four hour figure was an anecdote from the police officer who caught a friend on drug dui.

      I can't see four days being practical - there would be too many people appealing the charges in court, as it is pretty obvious that you're not "impaired" even one day after cannabis consumption.

      Dug this out just now:
      "How long after consuming cannabis, methylamphetamine or MDMA can these drugs be detected in saliva?
      THC (the active ingredient in cannabis) can be detected in saliva for up to four…

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    9. John B

      Analyst

      In reply to Robin Bell

      Hello Robin. As a cannabis smoker myself I thought I would point out a couple of things in response to what you have written. Firstly, you need to be careful putting cannabis in with these other drugs. It must be treated completely separately. An important point needs to be recognised, that I know from being a smoker and all of my smoker friends will tell you the same, is that cannabis slows you down on the road. You can look at all the studies you like. It's a fact. I can provide this YouTube documentary…

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  2. Mark Honeyman

    Wage Slave

    Why is it that risk taking associated with drugs is seen as an 'economic burden to society' when other risk taking activities are not. Is anyone jumping up and down at the economic cost of risky activities such as contact sports, mountain climbing, cycling etc?

    Its easy to get caught up in a cultural and political war against drugs when the base questions are moral ones. Does the state, or anyone else, have the right to limit risk taking in whatever form that may be when one poses no threat to others? Understanding the importance of drug use in society, understanding how to use drugs safely and how to effectively combat dependence are more logical and humane questions that need addressing.

    Of course, through rampant prohibition we have created an environment where illegal drugs are so lucrative that the money trail undoubtedly includes elected officials. Decriminalisation and legalisation of drug in this environment is difficult to say the least.

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    1. Danny Hoardern

      Analyst Programmer

      In reply to Mark Honeyman

      "Why is it that risk taking associated with drugs is seen as an 'economic burden to society' when other risk taking activities are not."

      The majority of politicians are probably aware that it would be better to legalise some drugs, but until they're certain that implementing legislation won't lose them votes then it's going to be tough. A strong case needs to highlight the benefits of legalisation, the perils of prohibition while quelling public angst and misplaced moral values.

      After reading…

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  3. Tim J Hawes

    Mr.

    I think we really need two different policies simultaneously. Legalisation of marijuana and the decriminalisation of your 'harder substances'. There is a vast gulf between, say pot and heroin. Treating the legal sale of pot like tobacco will in no way eliminate kids smoking pot, in exactly the same way it hasn't eliminated kids smoking cigarettes. Then again, there are different externalities as pot may reduce education performance more than cigarettes but have vastly better health outcomes (think…

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  4. alexander j watt

    logged in via Twitter

    Although it can seem more extreme, legalisation is the better option, as it places the entire industry on a equal footing for control through regulation, and enables legitimate revenue generation enterprises.

    Decriminalisation does not tackle the roots of the drug war problem: the black market (huge profits still fund criminals), and no controls on supply (who target kids) or quality (with drugs made in toilets).

    The reason decriminalisation has been the method adopted so far in dealing with…

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  5. Dave Smith

    Energy Consultant

    One of the major arguments for legalisation is that drug quality could be standardised and enforced. Illegal drugs can vary in strength/purity and be cut with toxic substances, contributing to overdoses and deaths. The article is remiss for not discussing this aspect.

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  6. Evert Rauwendaal

    logged in via Facebook

    "The strongest argument against legalisation is that it would result in significant increases in drug use".

    That's funny, because the policy of drug prohibition has also led to a significant increase in:

    Heroin users: http://i.imgur.com/lAHX9.png

    &

    Amphetamine users: http://i.imgur.com/tmh3v.png

    The market for all drugs should be regulated, not by criminals, but by government. The strongest argument in favour of regulation (you can't regulate black market goods) is the fact that tobacco use has declined by 33% in the last 12 years (by over 50% in some places): http://i.imgur.com/lM3UK.png

    It's pretty clear that regulation, not prohibition, is the answer.

    References:

    www.maths.unisa.edu.au/~yalcin/techreports/amphetamine.pdf
    www.maths.unisa.edu.au/~yalcin/techreports/Heroin.pdf
    http://www.aihw.gov.au/publication-detail/?id=32212254712

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    1. john mills

      artist

      In reply to Evert Rauwendaal

      Great article and great response Evert, How does it go,addiction to sugar, then tobacco,then alcohol,then prescription pills or cannabis, then hallucinogens, non prescription(criminal) pills, powders, one way or another there all out there, and some of us are going to try them all, so far we can visit the grocer or the chemist for the first four, and be educated for the use. For the rest we have to visit a criminal, therein lies the hypocrisy and the dilemma, all these drugs are used by people who…

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    2. John B

      Analyst

      In reply to Evert Rauwendaal

      There are many myths. Also the one that it would send the wrong message etc etc. But a former US Surgeon General mentions a drop in usage when the medicinal marijuana law was passed in California.

      MYTHS ABOUT MEDICAL MARIJUANA
      by Joycelyn Elders
      The Providence Journal (RI)
      (Dr. Joycelyn Elders was U.S. Surgeon General in 1993-94 and is
      Distinguished Professor of Public Health at the University of Arkansas School of Medicine)

      The myth.. "Medical-marijuana laws send the wrong message to…

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  7. Alison Ritter

    Professor & Specialist in Drug Policy at UNSW Australia

    Thank-you for your contributions. A few points from me:

    Yes, an argument for legalisation is that drug quality could be regulated, resulting in less likelihood of overdose and other harms.

    Yes, we should consider each currently illegal drug on its own merits – there may be greater argument for legalising drugs such as cannabis, and decriminalising other drugs. The relative weight of argument differs for each drug.

    Yes, the international treaties to which Australia is a signatory are an…

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    1. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Alison Ritter

      Thanks for the opportunity to discuss some of these issues Alison.

      Here's a strange little link full of curious facts about drug prohibition - not the least being that it all started with that accursed corporal Napoleon, whose enthusiasm for using his fingers for counting continues to persecute me personally to this very day through the insidious and neo-bonapartist revanchist International Bureau des Poids et Mesures with their decimalisation by stealth!

      http://www.tdpf.org.uk/Policy_Timeline.htm

      Don't give them an inch I say!

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    2. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Peter Ormonde

      More seriously, I think the issue is actually a lot broader than the impact on public health in "consumer" nations... we should also be simultaneously considering the impact of prohibition on producer countries such as Mexico, Afghanistan and the like which has seen the growth of a sinister form of corruption and plutocracy.

      It's not all about us.

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  8. Steve Weber

    Retiree

    Medical Marijuana Patients Get Their Day in Federal Court with the Obama Administration
    July 30th, 2012

    D.C. Circuit to hear oral arguments this October in lawsuit challenging marijuana's federal classification

    The United States Court of Appeals for the D.C. Circuit agreed to hear oral arguments in Americans for Safe Access v. Drug Enforcement Administration, a lawsuit challenging the federal government's classification of marijuana as a dangerous drug with no medical value. The D.C. Circuit…

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  9. Dave O'connor

    IT consultant

    People lack an understanding of the economy. In Australia today seven privatized prisons exist, shares in the corporations that own these prisons are sold on the world’s market based on the number of prisoners in the prison system. The war on drugs funds the prison system with its main resource which is prisoners and for this reason decriminalization of illicit drugs in Australia is not an option.
    You are probably thinking right now how this system works? If you imagine a cattle farmer, he is the…

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    1. Danny Hoardern

      Analyst Programmer

      In reply to Dave O'connor

      If we can guarantee income and bonuses for those currently making money off prohibition, then the inevitable switch to regulation will be easier. I reckon if we can land a fricken robot with lasers on Mars then we're capable of regulating a commodity.

      Think about the children: there is a landmark study out now that provides proof that cannabis and the adolescent brain does not mix. We also know that strict regulations provide better success at keeping adolescents from substances which harm them, but not adults.

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    2. john. b

      logged in via Twitter

      In reply to Danny Hoardern

      Something has to happen. My 70 yo father has to "score" from uni car parks. A recovering alcoholic that has made the transition to medicinal cannabis and now works and is happy. If he goes back to drinking because he can't get cannabis, the shit is going to hit the fan. I am fed up!

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    3. Danny Hoardern

      Analyst Programmer

      In reply to Dave O'connor

      No offence Dave, but I find your ethics fascinating: We need to continue spending money locking people up over a fricken flower or else I'll be out of pocket (in other words, I cannot think of any financial opportunities from regulating a highly-demanded commodity). (Or, I couldn't care less if people went to jail over a commodity safer than alcohol, as long as my pockets are lined!).

      Evolution will inevitably prevail and old ideas will be a relic from the past, since the younger generation supports liberation.

      (I can hear Dave-like creatures chirping in: "yeah but hold it off as long as possible so we can continue making a buck. Oh my, look at how much my prison stocks jumped after that post!!")

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    4. Danny Hoardern

      Analyst Programmer

      In reply to john. b

      According to the Single Convention on Narcotic Drugs, 1961, the government must provide your father with cannabis if he is in pain or suffering:

      "The Parties, Concerned with the health and welfare of mankind, Recognizing that the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provision must be made to ensure the availability of narcotic drugs
      for such purposes, ... "

      Cannabis does provide relief for pain:
      - http://americannewsreport.com/researcher-says-marijuana-is-safer-alternative-to-painkillers-8815280.html
      - http://norml.org/library/item/chronic-pain
      ... many, many more studies available via your favourite search engine

      http://www.incb.org/pdf/e/conv/convention_1961_en.pdf

      You can apply through the TGA for the special access scheme (this costs money; they want a slice of the pie), but we as adults should have access to cannabis in the same way as alcohol.

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    5. john. b

      logged in via Twitter

      In reply to Danny Hoardern

      Yes the jury is in here and now a rush from the major pharmaceutical companies for patents.The latest science also tells us now that they find cannaboid receptors in many of our organs that must be filled. These scientists and physicians now suggest that by not filling these receptors we leave ourselves open to a myriad of diseases. Parkinsons, Alzheimers, cancers etc. Our country literally kills us now by not making cannabis readily available to all.

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    6. Danny Hoardern

      Analyst Programmer

      In reply to john. b

      We need our Prime Minister to be aware of the (lack of) ethics surrounding prohibition.

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    7. john. b

      logged in via Twitter

      In reply to Danny Hoardern

      Australia21 council said the current drug laws are "killing our children". Bob Carr said Australia has had 40 years of wrong drug policy, but without any ammendment. Or in other words, see you in 10 years and we can all celebrate 50 years of wrong policy. This is offensive. I wonder even if manslaughter charges could now apply to our government now that they knowingly and willingly partake in the killing of our children?

      Australia21 release their 2nd report this Sunday (@Australia_21 on twitter). Now is the time to email/tweet our pollies. Put your boots down on their throats to stop this killing.

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  10. Eddie Jordan

    logged in via Facebook

    A balanced and thought-provoking piece, thank you. For me, when one considers the drug issue holistically, the clincher for legalisation (or some form of decriminalisation) is the huge figures involved in the War on Drugs. The US has spent something like $1 trillion prosecuting this ‘war’ over the past forty years; the mind boggles when you consider what this money could have achieved in terms of education, safe regulation, support for developing world growers, treatment centres etc. etc. Furthermore…

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  11. John Hopkins

    Social Engineer

    The right to consume ANY product that WE deem fit, is a VERY BASIC HUMAN RIGHT.
    Those who have imposed this moronic "War" against our basic rights, are criminal scum. Those who perpetuate it or worse, those lowlife crud who inflict it upon us, MUST be made to pay. Execution is not too much for the criminal crap who "enforce" this "War" against us.
    We are rolling faster & faster, towards Civil War because of this moronic "War Against Drugs"
    I personally, want to see ALL DEA scum & ALL Australian "Drug Squad" lowlife scum, strung up & hanged in public. To the jeering of those they have either destroyed, or attempted to destroy. KILL EM ALL.

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