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Drug decriminalization: what we can (and can’t) learn from Portugal

Hannah Laqueur, Ph.D. candidate, Berkeley Law | August 3, 2015

In 2001, Portugal decriminalized the acquisition, possession and personal use of small quantities of all psychoactive drugs. Drug use is still prohibited and subject to administrative sanction, but the law eliminated incarceration as a potential penalty.

Portugal’s decriminalization law has been appropriated in U.S. drug policy discussions, mostly an example of a radical and successful reform. Critics of the law can and have cherry picked post-decriminalization statistics to claim that there were increases in drug use, at least among certain populations and for certain substances. In general, however, “the sky did not fall” and “the apocalypse hasn’t happened.”

But why should it have? Portugal’s removal of criminal penalties for drug use was not as drastic a policy change as the U.S. debate would suggest. In fact, drug users in Portugal were rarely imprisoned prior to the law’s passage. Instead, decriminalization was largely a formalization of longstanding policy towards drug use.

So what can Portugal teach us about “radical decriminalization?” Very little, because it didn’t happen. Are there still lessons to be learned? Yes. But learning them demands looking not so much at formal legal changes as at what happens on the ground.

Portugal’s policy

Portugal did not legalize drugs as is sometimes loosely suggested. Sale and distribution remain criminal, as does cultivation for personal use; drug consumers must necessarily rely on illicit markets. Even drug use itself is not legal: users who are caught are issued a citation and summoned before an administrative body that may impose a fine or recommend treatment. The number of recorded contacts between citizens and police has changed little since 2001. In this sense, decriminalization was not the libertarian panacea some advocates have implied. It was a formal shift from one arena of government to another — from criminal punishment to treatment.

Portugal had already begun this change in practice. In the eight years before decriminalization, on average, about 20 people were incarcerated for simple drug possession – less than 0.3 percent of the country’s prison population. Rather than a radical shift in sanctioning, the law was largely a formal commitment to, and continuation of, an existing practice. To credit or blame “radical decriminalization” for any change (or lack thereof) in post-2001 indicators of drug use and related harms is therefore misguided.

But even if the 2001 law were not a dramatic move from criminalization to decriminalization of drug use, significant changes did accompany and follow the law. The statute was part of a broader set of reforms – involving substantial investment in drug treatment and related services – developed in the late 1990s in response to growing problematic drug use. Post-2001 indicators suggest access to treatment has improved and there have been reductions in serious drug use and rates of drug-related HIV/AIDS.

There is also some evidence to suggest decriminalization may have had a broader informal impact on criminal-justice policy. Since 2001, there’s been a marked decline in the punishment of drug traffickers. Convictions have fallen by 40 percent and the number of people imprisoned for trafficking has dropped by close to 50 percent.

These declines were not manifest consequences of the law: the criminal code governing drug trafficking has remained untouched. But the association is suggestive of the potential symbolic import of decriminalization. Its significance may lie less in its prescriptive content than in its reflection and reinforcement of the country’s evolving shift from a penal to a health-oriented approach toward drugs.

U.S. policy

In contrast to Portugal, decriminalizing all psychoactive drugs in the U.S. would represent a significant departure from existing law and practice. Over 80 percent of drug arrests are for possession, a total of approximately 1.2 million arrests a year. Roughly a third of those convicted of drug possession are sentenced to prison and another third are in jail. And conservative estimates suggest 5 to 15 percent of those in prison for a drug crime are incarcerated for simple possession arrests, five to fifteen times the rate in Portugal before decriminalization.

At the same time, after decades of aggressive drug law enforcement, there has been some movement away prohibition, and growing consensus that the “war on drugs” has failed at an enormous human, social, and financial cost. The most dramatic recent shifts in drug policy have been around the legal status of marijuana.

As jurisdictions deliberate marijuana legalization and decriminalization and analysts study reform effects, lessons from the Portugal case should be heeded. Jurisdictions that decriminalize marijuana are often those that rarely arrested and prosecuted users before formal decriminalization. States that have or are expected to soon legalize marijuana are the same states have had (often fairly lax) medical marijuana systems in place.

Policy reform is frequently gradual rather than dramatic and discrete. This may provide some comfort to those fearing “the sky will fall,” but poses an intrinsic challenge for analysts attempting to study “before and after” legal effects.