What does decriminalization mean?
Earlier this week, the Czech government approved a proposal made by its Justice Ministry to decriminalize the possession of small amounts of drugs starting January 1. (More here and here.) As some readers may recall, drug decriminalization made some headlines earlier this year after the CATO Institute released a report by Glenn Greenwald that provided a very favorable picture of Portugal’s 8-year-old drug decriminalization policy.
But, what does “decriminalization” really mean?
This is something that I’ve been spending a fair amount of time thinking about recently as I’ve been working to finish up a paper that I presented at the University of Chicago Legal Forum’s Symposium on Crime, Criminal Law, and the Recession and that compares decriminalization to criminal drug courts. When I mention to my friends what I’ve been working on and note that Portugal has decriminalized all drugs, most say–“really, all drugs? Wait, so, what does that mean exactly? Can people there just go around using drugs on the streets?”
In the United States, I think that when most people hear “decriminalization” they think of the elimination of all criminal penalties for possession of a drug for personal use, perhaps accompanied by a fine. (“Legalization,” meanwhile, is often used to refer to a system in which it is legal not just to possess a substance but also to manufacture and distribute it.) I suspect that this is in part because the only time decriminalization typically comes up as a serious policy option in the U.S. is in the context of marijuana policy.
But, as the Portuguese system demonstrates, decriminalization can be much different than what I think most of us typically envision of when we hear the phrase. In Portugal, it is true that simple possession of small amounts of drugs is not a crime (hence, it is referred to as “decriminalization.”) And yet, possession and use of drugs in Portugal is still very closely regulated. If an individual is found in possession of a legal amount of a drug, he or she is issued a civil citation to appear before what is called a “dissuasion panel.” The panel is made up of 3 individuals, two of whom typically have a medical background. The panel then assesses whether the individual has an abuse or addiction problem and recommends a course of action. The recommendations can range from nothing more than a warning with information about the dangers of drug abuse (for an occasional user who does not appear to have an abuse problem) to an order to get treatment. And individual can be subjected to a fine only if he or she fails to seek treatment after being ordered to by the panel.
Interestingly, when I explain this to my friends, many of them respond by saying: “I thought you said Portugal decriminalized drugs. From what you’ve described, it sounds like they just have a drug court system.” And, personally, I think that’s a great description of Portugal’s policy–a civil drug court system. But of course, in the U.S., “drug court” has traditionally meant a criminal court in which defendants can get treatment but will face prison if they fail.
Unfortunately, none of the reports that I’ve seen so far on the new Czech decriminalization policy have contained a great deal of detail about it (other than regarding the drug amounts that will be decriminalized for each drug.) But, as Portugal demonstrates, “decriminalization” may not necessarily mean what most of us would think of. Whatever the Czech system will look like, however, between the positive reviews of Portugal’s policy and this new development (not to mention decriminalization policies taking shape in Mexico, Argentina, and other Latin American countries), it appears that drug “decriminalization” may be becoming a policy trend (at least outside of the United States.)