Nous contacter|Plan du site|Mentions légales|Accès réservé

Assessing Deviance, Crime and Prevention in Europe
Version française PDF

Crimprev info n°7bis – Drug use and possession: the criminalisation-decriminalisation equation

Maria Luisa Cesoni

Full text

Drug use1, even more so than possession for personal use2, is subject to widely differing regulations in Europe, ranging from outright criminalisation to a non-judgemental penal approach. Furthermore, these regulations are constantly changing and setting various national debates in motion. Recent decades have witnessed quite far-reaching legislative reforms in some countries, ranging from making drug use a more serious offence to partial, if not complete depenalisation or decriminalisation. In terms of the legislative framework, a clear divide seems to be emerging between the countries of southern Europe - several of which have opted for sweeping decriminalisation of drug use (as have some eastern/north-eastern European countries) - and central and northern European nations, which are divided between a law enforcement approach and a half-hearted or purely pragmatic depenalisation3. Practices write fine distinctions into the observed frameworks of legal rules, whereby, for example, de facto forms of depenalisation are found within an enforcement setting.

  • 1  Variously described in our papers as narcotics,(...)
  • 2  For ease of understanding, both types of behavio(...)
  • 3  Cesoni, 2004.

On the basis of an analysis of policy on drug use in a number of countries, the three seminars we are staging in 2007-2008 aim to identify elements that may help explain the role played by certain factors - changes in the welfare state, the impact of the media, public and expert opinion, and the increased focus on victims in the criminal justice system and in the media, as well as respect for fundamental rights - in changing legislative policies, practices and discourse relating to the criminalisation or decriminalisation of drug use. The scant research and scientific literature on these very aspects in relation to policy on illicit drugs prevent this from being more than a preliminary analysis.

    For the purposes of this analysis, the concepts of criminalisation and decriminalisation have been construed broadly as including not only developments in the framework and implementation of legislation - the criminalisation, decriminalisation (the activity ceases to be illegal) or depenalisation (the activity remains illegal but the criminal penalty is reduced or not applied) of use and/or possession of drugs for personal use - but also any public policy measures aimed at or resulting in a greater or lesser criminalisation of these behaviours. The social criminalisation (or labelling) of drug use and users will be considered as a factor that may influence (or be influenced by) the political and legislative processes.

      The first seminar, held in Brussels on 26 and 27 October 2007, focused on the policies pursued in Belgium (Christine Guillain), Spain (Isabel Germàn), France (Henri Bergeron), the Netherlands (Tim Boekout van Solinge) and Switzerland (Kerralie Oeuvray)4. It enabled a number of considerations to be developed, especially on two of the cross-cutting strands of our work: the influence of welfare policies, and the human rights issue; the question of the impact of the media was brought out to a more limited extent.

      • 4  This summary report is based on the written summ(...)

      Developments in the legal framework of three countries with widely differing policies - Belgium, the Netherlands and Spain - were first presented in order to define the parameters of the criminalisation or decriminalisation of drug use. The analysis of France and Switzerland then focused more on the welfare policies pursued in these two countries, particularly the health and social care aspects.

        This first overview shed particular light on aspects related to the international policy context, and the issue of respect for users' rights as a prerequisite for a policy befitting a constitutional State. The cases of the Netherlands and Switzerland seem to show that local autonomy in establishing public health policies is conducive to adopting risk reduction policies, which themselves foster a more tolerant approach to drug use. Furthermore, the analyses of Belgium, France and the Netherlands revealed an increased reference to such things as public nuisance, arguably reflecting a rising sense of lack of personal safety (with regard to criminal conduct), which seems to be closely linked with the growth of a wider sense of societal insecurity. Robert Castel argues that, in our Western societies, “which, in a way, guarantee as of right the safety of their members, (…) modern insecurity is arguably not about the lack of forms of protection, but rather their obverse, their shadow cast across a social universe organised around an endless quest for protection or a frantic hunt for security”5. The development of forms of civil protection “guaranteeing fundamental liberties and ensuring the safety of property and persons”6 and social protection (protecting against risks such as accidents, illness and unemployment) have brought about risk aversion. The demand for State-provided protection has therefore risen as risks have dwindled. The crisis in the forms of social protection has therefore led people, being less hardened to risk, to be ever more demanding of protection and reluctant to see it lessened. In this way, “social insecurity and civil insecurity intersect at this point and play into one another”7.

        • 5  Castel, 2003, 6 (own translation).
        • 6  ibid., 5 (own translation).
        • 7  ibid., 53 (own translation).

        The Belgian legislative framework

        Christine Guillain’s analysis of developments in Belgian legislation highlighted the influence of the international legislative framework, which, until 1975 at least, appears to have been much more decisive than national factors, and has resulted in the - mainly indirect - criminalisation of drug use (i.e. by criminalising possession). From the mid-1990s, by contrast, the issue of insecurity and recourse to the concept of public nuisance tie in to a dual trend: an attempt to partially depenalise possession of cannabis for personal use, and continued enforcement of the criminal law in cases of public nuisance, a vague concept subsequently replaced by the equally indeterminate offence of breach of the public order.

          First period: the international influence

          The legislative process in Belgium can be divided into two periods. The evidence of the first period - from 1912 to 1960 - is that where there is no drug use problem, the criminalisation of drugs is a direct result of international developments. Prior to signing up to the International Opium Convention 1912, the main purpose of Belgium’s rules was to regulate its use in medical treatment. Notwithstanding the lack of problems linked to opium use, Belgium ratified the International Opium Convention because of the moral value inherent in this international commitment and the importance to Belgium of being associated with it. Ratification required Belgium to introduce enforcement provision, which it did with the Act of 24 February 1921 and the Royal Decree of 31 December 19308, whose original purpose was to combat illegal trafficking and control the home market trade in a number of soporific and narcotic substances. Although individual use was not criminalised, group use and possession were, albeit the legislature never troubled itself to specify with which intent - use or sale - possession constituted an offence. Statutory penalties of imprisonment were laid down, together with exceptions to the ordinary law rules, such as night-time house searches without a warrant and the conclusive evidential value given to the police reports written up to record offences under the Narcotics Act.

          • 8  Despite repeated amendments, both pieces of legi(...)

          Second period: depenalising cannabis use?

          The second period - from 1960 to the present day - saw increased criminal justice action against drug trafficking and the phased application of the enforcement provision to drug users, combined with attempts to secure depenalisation driven by the social defence movement.

            The 1960s and 1970s witnessed ever-larger drugs seizures and a rising tide of convictions for drug-related behaviours. This reflects not only the growing concern of the judicial authorities about drugs problems, but also the indirect punishment of drug use through pre-use offences such as acquisition or possession. At the same time, legal authors began to question the point of punishing drug use, looking into the socio-cultural factors behind use, or advocating treatment solutions for users.

              The Act of 9 July 1975, which extensively amends the 1921 Act and is the result of Belgium’s ratification of the Single Convention on Narcotic Drugs 1961, is likewise caught between two stools: a stronger enforcement agenda, and a desire for a different approach - that of treatment and rehabilitation for drug users.

                After a fresh rise in prosecutions of drug users, two criminal policy guidelines were issued in Belgium. The first, in 1993, called on the public prosecution service not to automatically file cases involving drug users as “no further action” when deciding whether or not to prosecute. The aim was a robust policy response to a group regarded as being the source of insecurity problems. The second criminal policy guidelines, issued in 1998, took an opposite, more tolerant approach towards simple cannabis use, and called on public prosecutors to assign these cases the lowest priority in prosecution policy. A long list of exceptions was introduced, however, especially in cases of problem use or public nuisance.

                  The finding that this policy had failed disastrously prompted the Belgian government, in the wake of the 1999 federal elections, to propose framing a consistent policy on drugs. The process came to an end only in 2003 with the enactment of two statutes, a Royal Decree and a criminal policy guidelines. The new, mainly cannabis-focused regulations depenalised possession of cannabis for personal use by reducing the criminal penalties applicable, and effectively decriminalised possession of cannabis for personal use by adults, by requiring police officers not to include the offender’s name in their commission of crime report. With no offender named in the report, the public prosecution service was unable to proceed with the case.

                    This Act was partially repealed by the Constitutional Court in 2004 on the grounds that the vague and ill-defined concepts used in the statute violated the principle that offences and punishments should be strictly defined. A new criminal policy guidelines was then issued in 2005 regarding investigation and prosecution in cases involving the possession by adults of a quantity of cannabis intended for their own personal use. The public prosecution service was again exhorted to assign these cases the lowest priority, except where they involved a breach of the public order.

                      Drugs policy in the Netherlands

                      Tim Boekout van Solinge’s presentation of the policy pursued in the Netherlands enables the variable of insecurity arising from the general political climate to be taken into account as a factor in an enforcement crackdown. One of Europe’s most tolerant countries, whose policy has been guided by the aim of “normalising” the situation of users, has thus made action to combat the nuisance caused by users the central strand of a new law enforcement policy. The analysis of Dutch policy also highlights the role that the media coverage given to a small number of incidents associated with the use of hallucinogens has arguably played in bringing about a government bill to ban the sale of hallucinogenic mushrooms. However, what influence this has had on the development of Dutch policy, whose historical tolerance seemed even then to be disintegrating, is not easy to gauge.

                        Cannabis “coffeeshops” and risk reduction

                          The perceptions of Dutch policy on drugs stereotype the Netherlands as a drugs supermarket, symbolised by the “coffeeshop” (premises where cannabis and its derivatives can be sold to adult consumers). However, while the country pursues a liberal policy on the sale of these substances, and a policy of tolerance towards the use of all illicit drugs, it has also had a well-established risk reduction policy since the early 1970s. In public health terms, the situation is regarded as being under control: stable recreational drug use (on a par with the European average), an ageing drug addict population and a steady decline in injection practices.

                            The foundations of tolerance

                            The inception of a drugs policy in the Netherlands can be traced back to the 1960s and stems from the protest movements of the time, amongst other things. In 1968, two commissions - the Hulsman and Baan Commissions - were set up to study the new phenomenon of illicit substance use. Both recommended the adoption of a less draconian policy than a blanket drugs ban.

                              The sociological theory of labelling, which was a talking point in the Netherlands in the early 1970s when the findings of the two commissions were under discussion, was a major shaping force on the agenda to develop a more tolerant policy. The thinking was that if society censured behaviour regarded as deviant - such as drug use - by stigmatising and criminalising it, for example, there was a risk of exacerbating this kind of behaviour and at the same time driving users to the margins of society, whereas were society to treat it as normal, the deviant behaviour would become normalised and so not marginalised, thereby increasing the possibility of the user adopting less extreme, less deviant behaviour.

                                Cannabis: no further action

                                The big debate on drugs policy in the Netherlands has for several years been focused on the “coffeeshops” issue. The sale and possession of cannabis in coffeeshops is tolerated, although the statutory prohibition on both activities makes them illegal. There is a widespread practice of filing cases as “no further action”, stemming from the criminal policy guidelines adopted by the public prosecution service. In the Dutch legal system, the guidelines rank almost equal in importance to statute law, such that a prosecutor cannot easily disregard it.

                                  Since the mid-1970s, the public prosecution service has systematically waived cases involving the possession of small quantities of cannabis for personal use, and the sale of cannabis products by coffeeshops that are licensed by the city council. These coffeeshops have to observe a number of rules, however: no sales to minors, no sales of hard drugs, no advertising, etc.

                                    There is a snag, however. While it is permissible to sell cannabis to users, cannabis production and its sale to the coffeeshops remain completely illegal. A small majority of MPs have repeatedly voted to set up local schemes where the supply of cannabis would be legal and controlled. Successive governments have, however, been reluctant to grant parliament’s wishes in this respect for international policy reasons in the form of international conventions, which the Dutch Ministry of Justice has stressed do not permit cannabis to be supplied legally, and the international climate, where a majority of countries are against any such policy. It will be recalled that in the 1990s, in particular, Dutch policy on drugs was vilified, especially by France. On top of this European pressure, the United States, with its war on drugs, also had an influential role, as did the United Nations, which argues that the Netherlands is overly permissive and is not doing enough to tackle drugs.

                                      From public health to public order

                                      The risk reduction policy began in the early 1970s with needle exchange and methadone prescription programmes. A key factor to understanding why a risk reduction policy developed so early on - relative to other countries - is the existence of local urban health services, which were outside the remit of the Dutch Ministry of Health and so were able to take independent risk reduction measures.

                                        The risk reduction policy was strengthened in the 1990s, not least by the introduction of heroin programmes for chronic users who have repeatedly tried and failed to stop using. Another measure adopted was that of testing pills at big raves, although this was curbed by the conservative Balkenende government five years ago.

                                          The late 1990s saw a legal crackdown, with the introduction of stricter measures such as two-year compulsory treatment programmes for repeat minor offender drug addicts. The compulsory treatment takes place in prison, but is not regarded as a custodial sentence. Despite its relative lack of success, its underlying agenda is still to take those who create a public nuisance off the streets to prevent them from re-offending.

                                            The clampdown has been further tightened in recent years. The social and political climate has changed, and there is less support for liberal policies and toleration. This is partly explained by the insecurity that has gripped the country since the murders of Pim Fortuijn and Theo van Gogh. Moreover, in the aftermath of the September 11 attacks, legislation was brought in that curtailed individual liberties (identity checks, for example) and gave more power to the police (who have used it, leading to more instances of abuse of power) and the criminal justice system.

                                              Drug users have been easy targets for the police. There is a high arrest rate of drug addicts - a group with a weak position in society. Drugs busts at parties have also increased, with the result that even recreational users have found it increasingly difficult to use and carry even small quantities of drugs.

                                                Media coverage of incidents

                                                In 2007 a string of widely reported incidents occurred in the city of Amsterdam, seemingly linked to the use of hallucinogenic mushrooms sold in “smart shops” (outlets for legal products, which may have psychoactive properties). In the summer, a 17-year-old French girl committed suicide by jumping off a tall building in the city centre. Media claims that she was under the influence of hallucinogenic mushrooms at the time were never confirmed. During the same summer, a British male leapt from a hotel room after taking hallucinogenic mushrooms. The story that grabbed most headlines, however, concerned a French tourist who brutally slaughtered his own dog while he was in his car parked on the canalside. In court, he claimed to have no memory of what happened, and to have been under the influence of hallucinogenic mushrooms for a week before the incident. Since these events, the government has tabled a bill to ban the sale of hallucinogenic mushrooms, but it has not yet been voted on in Parliament.

                                                  The Spanish legislative framework and the case of the Basque Country and Catalonia

                                                  Isabel Germàn’s paper emphasised the need for an approach based on recognising the rights of drug users, not only in compliance with the founding principles of a democratic State, but also as a strategy for reducing the risks and harm associated with the use of narcotic drugs. Since the Spanish policy of relative tolerance, where use and possession for personal use are subject only to administrative penalties, does not appear to be delivering these aims, not least because of the prohibitionist legal framework, a policy of normalisation is advocated.

                                                    The legislative framework

                                                    Drug use in Spain is not criminally punishable; it is subject only to an administrative penalty, and then only when done in public. Possession for personal use likewise attracts only administrative penalties. Consequently, neither use nor possession for personal use is a criminal offence. However, since possession with intent to supply is a criminal offence (Articles 368 et seq. of the Penal Code), it has to be determined when possession should be regarded as intended for trafficking.

                                                      Since the Penal Code lays down no criteria to establish what does not qualify as personal use, and because of the difficulty of proving the mens rea of possession, the courts have gradually worked out criteria to make that distinction, i.e. on which to decide whether possession may be punished or not. Case law also considers that the offence is not committed in two instances: one being common use, the other when close relatives are supplying a dependent user to help him or her gradually kick the habit, or avoid the risks of withdrawal.

                                                        The administrative penalties for personal use and possession for use are laid down in Institutional Act No. 1 of 21 February 1992 on the Protection of Public Safety, which provides for the following serious administrative offences9: use in a public place, on a public highway, in a public institution or on public transport, unlawful possession, and discarding in a public place any equipment serving for use (Section 25.1)10. Most cases are brought for use in public and/or possession for use, and most of these relate to cannabis and its derivatives.

                                                        • 9  The concept of an administrative offence is not(...)
                                                        • 10  As well as permitting the unlawful use or supply(...)

                                                        In theory, possession for personal use should result in a penalty (administrative or otherwise) only if done in public, as this is the only act that might endanger public safety. In practice, however, differences in interpretation have resulted in one of the main problems found with this Act, i.e. the legal uncertainty for users stemming from differential enforcement of the legislation by different police forces in different places.

                                                          The 1992 Institutional Act allows for penalties to be suspended for offenders who undergo withdrawal treatment. Criminal law also holds provision for suspending a sentence of imprisonment on drug addicts who committed criminal offences because of their drug dependency, provided the offence carries a custodial sentence of not more than five years, and they agree to undergo withdrawal treatment.

                                                            A balance between liberty and control

                                                            The Basque and Catalan approach to drugs is closer to balancing liberty and control, and the autonomous regions have implemented some successful harm and risk reduction schemes.

                                                              Cannabis use has become high-profile in the Autonomous Community of the Basque Country of late: it is openly used in many public places. The 5th Plan on Drug Addiction (2004-2008) explains that it has become de facto legalised, such that it is mainly cannabis production and supply - not possession and use - that are banned.

                                                                The Basque Country is running various harm and risk reduction schemes: needle exchange programmes for the general and prison populations, methadone prescription programmes, safe sex programmes, and drugs testing at festivals and youth centres. A supervised user facility has also been opened in Bilbao, which, despite initial rejection, has become a benchmark resource for the region’s drug addicts.

                                                                  In Catalonia, an initiative by the Agata Association (a support group for women living with breast cancer) has spearheaded the therapeutic use of cannabis. The Catalan scheme shows how such a process can be initiated within the confines of the law. The fact is that since cannabis is still regarded as an illicit drug, then barring a change in the existing law, the only option is to go with other legal strategies.

                                                                    Risks, risk reduction and normalisation

                                                                    Unlike legal drugs, illegal drugs are beset - aside from the primary effects that are the direct consequence of use - by a series of major problems, such as the lack of information on the risks of substance use or the social and/or legal stigmatisation of users resulting from the fact that these substances are unlawful. Since the law defines which types of behaviour are acceptable, the mere fact of using these substances itself stigmatises the users, who are perceived as a threat and labelled as “deviant”; moreover, this kind of reaction is most frequently directed at the most vulnerable groups.

                                                                      Another issue is the high percentage of prisoners with drug dependence problems. Most were drug users before being jailed, in a proportion much greater than among the general population. In a number of cases, the reason for being jailed is so-called functional offending, i.e. offences committed as a direct consequence of their addiction.

                                                                        While criminal law is sometimes seen as a panacea for all social ills, leading to enforcement action in situations where interventions by other control agencies would be preferable, there is no escaping the fact that the enforcement policy pursued in relation to illicit drugs at both international and domestic level has failed to reduce the problems. Worse, prohibition itself is apt to encourage crime; alternative systems of control therefore need to be established.

                                                                          This is less about taking an abolitionist approach and calling for the penal system to be dismantled than about intervening only for the most serious attacks on legal assets, on the most fundamental interests of organised society. Consequently, of all the different policy approaches on drugs (depenalisation, decriminalisation, etc.), the “normalisation” route seems to be of particular interest, as it implies not a desire to forego all criminal law intervention, but to limit it to the most serious offending behaviour (mainly trafficking). It is therefore about encouraging the responsible use of drugs, i.e. use that does not interfere with the user’s personal and social capacities, giving him or her the choice of rational use, and responsibility for the consequences of it.

                                                                            As a concept based on minimal criminal law intervention, normalisation may arguably be more consonant with the principles governing a democratically legitimate welfare state. It is about playing down enforcement to focus efforts on prevention and on the treatment and social rehabilitation of users. The normalisation approach is consistent with the harm and risk reduction philosophy, which seeks to address the different drugs-related problems by giving priority to reducing the negative effects of substance use.

                                                                              The user as an individual with rights

                                                                              The key to risk reduction for users of illegal drugs is protection that enables them to avoid or overcome marginalisation and vulnerability. Consequently, this involves acknowledging their status as individuals with rights, i.e. guaranteeing recognition of their fundamental rights in the same way as users of legal drugs, and hence respect for their lifestyle choices.

                                                                                These aims can be delivered only by improving access to services, adapting them to the needs of drug users, and providing and promoting health education aimed at encouraging less high-risk use. This must go in hand with the accountability and participation of drug users as citizens, and must include strategies to motivate users to change their health-damaging practices. Ultimately, it is about taking a more rational and objective approach to drugs, overcoming society’s knee-jerk fears, and promoting a legal framework that enables less drastic interventions.

                                                                                  Welfare state and drugs policy in France

                                                                                  Henri Bergeron’s paper set out to examine the relationship between welfare and penal policies. Arguably, it points to a dual link: while legitimising the health approach to drug use over the more direct enforcement response, in particular custodial sentencing, the welfare state seems at the same time to be promoting an extension of enforcement provisions against users.

                                                                                    The different phases of French penal policy on drug use

                                                                                    Three main phases of French penal policy on drug use can be identified from the literature.

                                                                                      The early 70s: a nascent policy of punishing use. An initial short, “soft” enforcement period on use gives way to a slow but steady rise in the number of arrests, limited use of treatment orders and clear rejection by the first “drug abuse workers”11.

                                                                                      • 11  Bergeron, 1999.

                                                                                      The ambivalent 80s. A heavy police crackdown on simple use (with an exponential rise in arrests for use), aimed particularly at tracking down small-time dealers, and a clear intent to focus intervention on chronically addicted users. Recommendations for the de facto depenalisation of cannabis begin to surface in public policy scoping documents.

                                                                                        From 1990 on, the police crackdown on simple users continues as the main outcome of an interventionist policy, but is accompanied by an increase in cases where no further action is taken, and even many stop-and-search operations resulting in no report, giving rise to an even more developed, not to say accepted de facto depenalisation, particularly as convictions do not inevitably lead to imprisonment. In a circular dated 17 June 1999, the French Justice Minister calls on prosecutors (among other things) to give priority to treatment provision for simple use.

                                                                                          What links can be established between this development in penal policy in relation to simple use of drugs and the approach taken in France by the welfare state, broadly defined as the legislative, prescriptive and redistributive policies of social and health protection, and especially health then public health policies, towards drug users?

                                                                                            The determining factors of de facto depenalisation

                                                                                            Wacquant’s analysis of the US situation reports a quadrupling of the country’s prison population within a period of two decades due to “extending the use of imprisonment for a range of felonies and misdemeanours that had hitherto not been imprisonable offences, starting with minor violations of drugs legislation and public order offences”12. Wacquant argues that the reasons for what he identifies as a move from the welfare state to the penal state are to be found in “enforced job insecurity” and “the corresponding roll-back of social protection”13.

                                                                                            • 12  Wacquant, 1998, 124, 13 (our translation).
                                                                                            • 13  Wacquant, 1998, 124, 4 (our translation).

                                                                                            Applying Wacquant’s line of argument to the French case, where the evidence is of a low level of imprisonments of simple users relative to the prevalence of use and arrest - and especially stop-and-search - figures, can the welfare state be said to have acted as a bulwark?

                                                                                              While wage-earners in France are certainly less well-off and less secure, and the focus of the various plans to reform social security funding is on a gradual erosion of social welfare cover, social and health policies have not suffered the same sad plight as those in the United States. Furthermore, closer study of policies aimed at drug users suggests that they have undergone some development, especially for the poorest users and addicts.

                                                                                                The proposition that the drugs problem has been turned into a health problem (“healthicisation”)14 arguably has some relevance. Applying Fassin’s paradigm15, it is the outcome of a dual process of translating the object into the language of public health and putting the translated object onto the public agenda. Two (in reality overlapping) periods of healthicisation can be identified16.

                                                                                                • 14  Faugeron, Kokoreff, 2002.
                                                                                                • 15  Fassin, 1998.
                                                                                                • 16  For further development of this, see Bergeron H.(...)

                                                                                                The first phase followed the outbreak of the AIDS epidemic and was reflected in two main conceptual changes: one is that the drugs problem is viewed less and less in terms of law-breaking or self-destruction, and more and more in terms of public health; the other is that a clearer distinction is made in the public domain between different drugs and different types of use. Risk-taking becomes the new common benchmark.

                                                                                                  The public health argument was accompanied and gradually overtaken by an epidemiological approach. These conceptual shifts found expression in public health policies that enabled the development of health and social welfare provision in the form of risk reduction.

                                                                                                    The second phase is embodied in the framing of a catch-all policy on addiction, merging the different types of drugs into a single class - psychoactive substances - and covering all forms of drug-related behaviour. With this phase comes an increasingly medicalised conception of dependence, but also abuse, and even use. This trend, focused on the biological and possibly psychopathological mechanisms of the acquisition of drug-seeking, is apt to obscure some of the social and cultural depth that discriminates between these substances and their uses, and to give some prominence to the discovery of “mind-altering drugs”.

                                                                                                      What appears to result from this is that drug-related behaviours, which hitherto were primarily a matter for legal regulation and, from more anecdotal evidence, health and preventive health education, henceforth form part of a comprehensive public health policy.

                                                                                                        So, can the de facto depenalisation established in France be seen as a consequence of making the drugs problem a health problem? It may be argued that the medicalised approach to drug use and the healthicised responses and policies contributed to enhancing the status of users as having a medical condition, and informed the drafting of certain legal and policy measures, such as the 1993, 1995 and 1999 action plans, which sought to define the approach to drug use. These arguments are particularly in evidence in the circular issued by the French Justice Minister in June 199917.

                                                                                                        • 17  Faugeron, Kokoreff, 2002, 16.

                                                                                                        Although there is no proof that waivers of prosecution were the main consequence of the discussion of this health policy, it may be argued, by turning the gist of Wacquant’s proposition on its head, that the severe penal treatment (by imprisonment in particular) meted out for simple drug use in France gradually became charged with negative symbolism, while the health and social - i.e. welfare - approach gradually acquired a positive connotation and gave added legitimacy to the practice of filing cases as “no further action”. On the basis of these considerations, it is tempting to see, in France also, the development of the welfare state as a bulwark against the development of the penal state.

                                                                                                          And yet the heavy police crackdown on drug use, the impossibility of the 1970 Act being revised and the recent moves towards a re-penalisation of how offending drug use is dealt with, argue in favour of the somewhat different scenario of a juxtaposition of the welfare state and the penal state, rather than Wacquant’s suggestion of a possible trade-off relationship between social and penal policy.

                                                                                                            The new French reforms: a re-penalisation vs depenalisation paradigm?

                                                                                                            At a time of rising public demand for law and order, is Wacquant’s hypothesis, if not yet borne out in France, on the point of being so? Two enforcement trends have been seen to be taking shape in very recent times. As evidenced by the EMCDDA’s 2005 annual report, public nuisance has become a keynote theme of public policy action, and protection of public spaces against public nuisance has become a legitimate objective justifying large-scale regulatory and enforcement activities: increasingly stiff action on driving under the influence of drugs, the rise to prominence of and attempts to check on drug use in the workplace, the growing appeal and development of drug screening tests, the crackdown on gatherings of young people using all manner of psychoactive substances on the streets of southern European cities and moves to corral raves into buildings in isolated areas if possible.

                                                                                                              There is also evidence of re-penalisation of simple use to be seen in the very recently enacted18 supplementary criminal penalty of “awareness training in the dangers of narcotic drug use” (Article L3421-1 of the Public Health Code). In point of fact, these training courses are an incitement to shift cases traditionally dealt with by the police to the public prosecution service, and hence also an incitement to prosecutors to stop filing cases as “no further action”.

                                                                                                              • 18  Crime Control Act of 5 March 2007 and its implem(...)

                                                                                                              Such a provision bespeaks both a reassertion of the relatively “liberal” acknowledgement that prison cannot be a solution for users and, at the same time, a strong desire to enhance the value of prohibition by a wide-ranging interventionist policy of implementing a justice system response. It is therefore at the time when society’s demand for public safety is at its peak that depenalisation (in the sense of avoiding custodial sentences) is most complete. But it is also the point in history where the understanding of the determining factors of drug use is most completely medicalised that the conditions are most right for the enforcement response to develop.

                                                                                                                Comprehensive policy and control culture in Switzerland

                                                                                                                The Swiss situation presented by Kerralie Oeuvray also leaves the impression that while the integration of welfare policies in drug user care provision - more extensively in Switzerland than in France since the medico-psychological aspect is supplemented by more across-the-board social assistance-based interventions - goes hand in hand with a more limited use of enforcement provision in the strict sense of the term, they facilitate or are reflected in an extension - or in this case, more an institutionalisation - of the control exercised over users.

                                                                                                                  Criminalisation/decriminalisation and management of social problems

                                                                                                                  Considered in terms of the sociology of social problems, the question of criminalising/decriminalising the use of particular products is just one of many dynamics involved in the society-wide and local management of such use. Equally important will be how the community health policies directed more at drawing chronic users into treatment provision are implemented, and the forms of welfare state support provided to clients in treatment provision. The analysis of how these different approaches (legal, community health and social welfare) are linked up gives credibility to the theories that point to a nascent culture of control in European societies. Based (but not exclusively) on knowledge relating to Switzerland, three approaches or trends can be singled out deriving from the way these different forms of provision are deployed within created or evolving partnerships.

                                                                                                                    A comprehensive policy

                                                                                                                    The first approach is that of so-called comprehensive policies on drug addiction. In response to the challenges posed by the open drug scenes of the 1990s, the risks of HIV infection, rising user death rates and the limitations of abstinence-focused treatment, a four-pillar policy rallied a broad consensus throughout Switzerland, uniting the prevention, treatment, risk reduction and enforcement sectors. Each sector remained true to its own approach, but this was implemented in specific cases by reference to the cross-cutting objectives framed in terms of reducing drug-related problems, with priority given to treatment in particular. Accordingly, at local level, criminal prosecutions could be waived on the grounds that an individual’s willingness to seek treatment made it appropriate. Dropping the narrow focus on abstinence enabled measures like needle exchanges and the creation of supervised injection facilities. This comprehensive policy is generally regarded as having satisfactory outcomes. As well as cutting death and new HIV infection rates, many individuals previously excluded from medico-social treatments are now patients or clients of social services.

                                                                                                                      While the welfare state is not an explicit pillar of this model of intervention, various branches of social welfare are involved either in funding provision (via invalidity insurance), or providing clients with a subsistence minimum (via social assistance: minimum income, housing benefit, paying health insurance premiums).

                                                                                                                        The link between the judicial and medico-social systems

                                                                                                                        The second approach relates more specifically to the link between the judicial and medico-social treatment systems. The penal code allows courts to substitute a treatment order for imprisonment for drug or other kinds of addicts with their consent19. In Switzerland, 16% of residential treatment places in 2006 were court-ordered placements. European research20 has recently looked at the effectiveness and working of such quasi-compulsory treatment. It evidences a reduction in both use-related and criminal behaviours, but emphasises that the effectiveness of this kind of provision depends on a well-developed and coordinated care network, in which court-ordered treatment is only a minor strategic element, and that if links are not made with the welfare state (for example by providing individuals on treatment programmes with a minimum income), the outcomes are at risk. It should nevertheless be emphasised that, since the treatments tend to be longer than the terms of imprisonment initially meted out, this increases the risk of the principle of alternative sentencing becoming an added means of exerting judicial system control over treatment.

                                                                                                                        • 19  The Narcotics Act also allows drug users who sub(...)
                                                                                                                        • 20  A three-year project (2002-2005), “QCT Europe: Q(...)

                                                                                                                        The overlaying of provision and the extension of ongoing control

                                                                                                                        The third approach can be seen in the overlaying of all forms of intervention on an ongoing basis. After several years in a range of treatment provision, dependence problems are apt to become second-order issues, but the individual is not necessarily able to break free of the status of client or patient to, for example, take up a normal job. At this stage, the judicial system is present only in the background. The welfare state, by contrast, emerges as a necessary partner (or pillar) of a comprehensive policy, not only as a short-term prop, but also as an essential mainstay for a foreseeably long time to come.

                                                                                                                          Three sets of contact arrangements between the user and the different professionals and services can be distinguished. First are the closely spaced (daily or weekly) and repeated (because essential to medical support and basic welfare benefits) deadlines that mark out the management of medicines (methadone, prescription drug treatments) and the financial benefits provided by social assistance. The medium-term deadlines (fortnightly or monthly) relate to inter-personal services (social support, contact with treatment providers) that are guaranteed to continue for two reasons: bonding within a supportive relationship perceived as valuable, and the need to ensure ongoing receipt of financial benefits. For some clients, there are also medium or long-term deadlines arising from court orders or corresponding to suspended sentences or periods of probation. Finally, the only outcome for some users is entrenched clienthood within the available services. This third approach reflects the profile of a culture of control, all the more visible since it concerns individuals who have generally ceased to display problem behaviour. Yet the success of medico-social controls, and those directly related to the management of welfare state services, must be seen in relation to the well-established links between the different types of intervention. While there is no doubting the undeniable improvement over the uncontrolled service uses of the past, the question does arise as to how break free of a closely monitored sphere of intervention in relation to which the dependence issue still awaits an answer.

                                                                                                                            Bibliography

                                                                                                                            Bergeron, H., 1999, L’État et la toxicomanie. Histoire d’une singularité française, Paris, PUF, coll. « Sociologies ».

                                                                                                                            Bergeron, H., 2007, Les transformations du colloque singulier médecin/patient : quelques perspectives sociologiques, in Tabuteau, D. (dir.), Les droits des malades et des usagers du système de santé, une législature plus tard, Paris, Presses de Sciences Po.

                                                                                                                            Castel, R., 2003, L’insécurité sociale. Qu’est-ce qu’être protégé ?, Paris, Seuil - La République des Idées.

                                                                                                                            Cesoni, M. L., 2004, Politiques européennes en matière d'usage de stupéfiants: les enseignements d'une comparaison, in Neuforge, S. (dir.), La Ville : carrefour d'une politique de prévention des toxicomanies, Bruxelles, Luc Pire.

                                                                                                                            Fassin, D., 1998, Politique des corps et gouvernement des villes. La production locale de la santé publique, in Les figures urbaines de la santé publique. Enquête sur des expériences locales, Paris, La Découverte.

                                                                                                                            Faugeron, C., Kokoreff, M., 2002, Introduction, in Faugeron, C., Kokoreff, M. (dir.), Société avec drogues. Enjeux et limites, Érès, 2002.

                                                                                                                            Tabuteau, D. 2006, Les politiques publiques en Europe : de l’ordre à la santé publique, in Reynaud, P. (dir.), Médecines et Addictions, Paris, Masson.

                                                                                                                            Wacquant, L., 1998a, L’ascension de l’État pénal en Amérique, Actes de la Recherche en Sciences Sociales, n° 124.

                                                                                                                            Wacquant, L., 1998b, La tentation pénale en Europe, Actes de la Recherche en Sciences Sociales, n° 124.

                                                                                                                            Footnotes

                                                                                                                            1  Variously described in our papers as narcotics, drugs or illicit drugs (standard terminology varies depending on country and discipline), our research is confined to policies on scheduled illicit substances (other than psychotropic medicines whose origin, history, regulation and uses are partially different).

                                                                                                                            2  For ease of understanding, both types of behaviour are referred to generally as “use”, with the evident exception of when we are considering the different legal regimes by which the behaviours may be governed.

                                                                                                                            3  Cesoni, 2004.

                                                                                                                            4  This summary report is based on the written summaries of the presentations given by the contributors, sometimes freely interpreted by the author of this note.

                                                                                                                            5  Castel, 2003, 6 (own translation).

                                                                                                                            6  ibid., 5 (own translation).

                                                                                                                            7  ibid., 53 (own translation).

                                                                                                                            8  Despite repeated amendments, both pieces of legislation remain in force.

                                                                                                                            9  The concept of an administrative offence is not commonly found in French-speaking countries, but is enshrined in legal systems like those of Spain and Italy that have a distinct and substantial system of administrative penalties.

                                                                                                                            10  As well as permitting the unlawful use or supply of drugs in public institutions, or want of care by owners, directors or managers in failing to attempt to prevent it (Section 23, h).

                                                                                                                            11  Bergeron, 1999.

                                                                                                                            12  Wacquant, 1998, 124, 13 (our translation).

                                                                                                                            13  Wacquant, 1998, 124, 4 (our translation).

                                                                                                                            14  Faugeron, Kokoreff, 2002.

                                                                                                                            15  Fassin, 1998.

                                                                                                                            16  For further development of this, see Bergeron H., 2007, 2006.

                                                                                                                            17  Faugeron, Kokoreff, 2002, 16.

                                                                                                                            18  Crime Control Act of 5 March 2007 and its implementing decree.

                                                                                                                            19  The Narcotics Act also allows drug users who submit to treatment to avoid prosecution for the offences of using or acts preparatory to use (Section 19a).

                                                                                                                            20  A three-year project (2002-2005), “QCT Europe: Quasi-Compulsory Treatment for drug dependent offenders”, bringing together teams from Berlin, Freiburg (CH), Kent, London, Padua, Vienna and Zurich (European Commission funding (5th CP) Quality of Life programme, QLG4-CT-2002-01446).

                                                                                                                            Date of publishing :

                                                                                                                            06 june 2008

                                                                                                                            Paper ISBN :

                                                                                                                            978 2 917565 09 4

                                                                                                                            To cite this document

                                                                                                                            Maria Luisa Cesoni, «Crimprev info n°7bis – Drug use and possession: the criminalisation-decriminalisation equation», CRIMPREV [En ligne], Crimprev Info, CRIMPREV programme, URL : http://lodel.irevues.inist.fr/crimprev/index.php?id=202

                                                                                                                            Contacts :

                                                                                                                            Maria Luisa CESONI, Faculté de droit - DPCR, Université catholique de Louvain - 2, place Montesquieu - 1348 Louvain la Neuve (Belgique)
                                                                                                                            e-mail : maria.cesoni@crim.ucl.ac.be

                                                                                                                            Tim BOEKHOUT van SOLINGE- Utrecht University - Willem Pompe Instituut - Janskerkhof 16 - 3512 BM Utrecht (Pays-Bas)
                                                                                                                            e-mail : T.BoekhoutvanSolinge@law.uu.nl

                                                                                                                            Christine GUILLAIN - Facultés universitaires Saint-Louis - 43, boulevard du Jardin Botanique - 1000 Bruxelles (Belgique)
                                                                                                                            e-mail : guillain@fusl.ac.be

                                                                                                                            Henri BERGERON - CSO/CNRS
                                                                                                                            e-mail : h.bergeron@cso.cnrs.fr

                                                                                                                            Kerralie OEUVRAY - Université de Fribourg - Département de droit pénal - Avenue de Beauregard 11 - 1700 FRIBOURG (Suisse)
                                                                                                                            e-mail : kerralie.oeuvray@unifr.ch

                                                                                                                            Isabel GERMÀN
                                                                                                                            e-mail : isabel.german@ehu.es