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Rethinking Drug Policy: Punishment and Sentencing
within the Courts
Dr. Jenni Ward Middlesex University, UK
Introduction • Paper based on observations in the criminal courts
examining the penalties dispensed for small quantity drug possession charges
• Situate my research within the within the broader drug policy debates occurring at the international and European level that are calling reform- depenalising policies
• Apply a conceptual framework that problematises the notion of ‘harm’ – whose harm is it?
Current drugs policy debates • A lively drugs policy debate is currently going on at
international and European levels, and radical change is occurring in nation states
• The notion that the prohibitionist, law enforcement stance to drugs has not worked in efforts to deter people from using, and trading in drugs (Bewley-Taylor et al, 2009) – the ‘War on Drugs’ has failed!
• A desire for ‘pragmatic’ responses to drugs -harm reduction, educationalist approaches, rather than penalising ones.
• Contributing voices come from international and national pressure groups eg. ‘International Drugs Policy Consortium’, ‘Global Commission on Drug Policy’, Global Initiative for Drug Policy Reform, politicians and political parties
• International Narcotics Control Board (INCB) launch a counter-offensive
• Two general points to the debates:
• 1. Drug-addicted offenders should be diverted into health and treatment services
• 2. The offence of drug possession for ‘personal use’ should be depenalised, whatever the drug category ie. heroin, crack cocaine, cannabis etc.
A starting point to my research• A European Monitoring Centre on Drugs and Drugs Addiction
(2009) report suggested the idea that we can divide countries into those with ‘repressive’ or ‘liberal’ drugs policies was problematic- ‘value laden’ and ‘meaningless’ concepts (EMCDDA, 2009).
• There is little detailed research on the level of disposals given out for drug possession offences, and to who?
• Official statistics illustrate the proportion of cases dealt with by fines or community penalties etc., but nuanced detail is missing
My research • Observations in three London magistrates’ courts (btw. Sept.
2010 and April 2012), over 12 morning court sittings • Recorded the type and quantity of drug the person was in
possession of, how and where they were arrested, whether they pleaded guilty or not, background circumstances of the defendant, and the disposals handed out
Total drug possession cases n=27GenderMale x26Female x l
Age (yrs)18 20 = 220-29 =1330-39 =840-49 =350 and over = 1
Ethnicity White =6Black =15Asian =6
Drug possession offences Cannabis x17Cocaine powder x8 Heroin x 1 Crack cocaine x 1 Socio-economic statusPaid employment x 1 State benefits x 25Disability Living Allowance x 1 Pleas entered Guilty x 20Not guilty x 6Discharged x 1
Penalties Socio-demographics Drug possession amount Penalty dispensed
1. M, 18 yrs, asian 1 cannabis spliff Conditional discharge for 12 months2. M, late 30s, black 1 cannabis cig Fine: total £1153. M, 28yrs, black Possession of a cannabis joint Fine: total £166 4. M, mid 20s, asian Offering to sell cannabis to a
PC
Sentencing delayed to follow a probation report
5. M, 24 yrs, Asian one cannabis cigarette Fine: total £170 plus 20 hours unpaid work to be added to previous 180 hours
6. M, 31 yrs, white A small quantity of cannabis Fine: total £2007. M, 22 yrs, white small bag of herbal cannabis Fine: total £1658. M, 40 yrs, white Small bag of herbal cannabis Fine: total £1509. F, 24 yrs, white 2 bags herbal cannabis Conditional discharge but £30 toward prosecution
costs10. M, 39 yrs, black 2 wraps of cannabis Fine: total £13011. M, 44, yrs, black 1 wrap of herbal cannabis Fine: total £12012. M, 21 yrs, Asian 3 wraps of cannabis Fine: total £11513. M, 18 yrs, black 1 sealed bag of cannabis Fine: total £5014. M, 24 yrs, black 1 small bag of cannabis Breach of penalty – sent to Crown Court for review 15. M, 32 yrs, black Possession of small quantity of
cannabis Fine: total £115
16. M, 22 yrs, Asian A wrap of cannabis Fine: total £10017. M, early 20s, black Possession of 3 wraps of
cocaineLowest end of community order Electronic tag for 4 weeks and curfew order 8pm to 8am
18. M, 29 yrs, black Small package of cocaine £40 Sent for probation appointment 19. M, 39 yrs, white £10 wrap of crack Fine: total £20520. M, 32 yrs, white 1ml of diamorphine Fine: total £147
Observation findings • A relatively high number of small quantity (ie. “a
£10 bag of cannabis”) drug possession cases appeared in court
• Significant financial penalties were received (range £50-205)
• Variable application of the drug laws, ‘police discretion’ - who gets arrested, and proceeded for prosecution?
Observation findings (ctnd.) • Drug arrests were made through random ‘stop and
search’ under the pretext of ‘suspicion’.
• Questions emerged on sentence utility – what purpose was the punishment to serve? i.e. deterrence, retribution etc.
• Problems with the drug laws - the dual purpose of the A to C classification system – expresses the severity of drug harm to personal health as well as dictating the severity of penalties for drug offences
Drugs harm• The ‘harm principle’ – conduct should be
criminalised only if it is harmful, problems with criminal wrongdoing that occurs without causing direct harm
• Drugs criminalisation is based on notion of harm
• Ruggiero (2000) in his writing on drug prohibition and legalisation draws on work of the political philosopher John Stuart Mill (1859) on harm and individual freedom
Harm and individual freedom of choice
• Mill’s seminal work ‘Liberty’ (1859) queried what personal actions the state should legitimately intervene in in its endeavour to preside over a productive, free, and moral society
• Mill judged apart from when individual actions caused wider societal harm, or impacted on personal responsibility people should be ‘free’
• Ruggiero argues prohibitionists take advantage from the position that Mill puts forward that government legal intervention is justified because drugs cause wider societal harm –public health, safety, violence problems etc.
• The principle lends itself to a range of interpretations
• Conversely legalisers can also use the argument of harm to argue for drug law reform
Whose harm?• Increasingly the discourse of alternative drugs
policies considers the drug-related harm to be inclusive of the impact law enforcement has on peoples’ finances, liberty and future employment, travel options – disproportionate impact
• Human rights violations of some drugs penalties namely the imprisonment of drugs addicts and the denial of appropriate treatment and care.
• Can we convincingly argue the possession of small quantities of drugs for personal use causes little societal harm and should therefore be dealt with in ways other than through criminal prosecution?
References• Bewley-Taylor, D. Hallam, C. and Allen, R. (2009) The Incarceration of
Drugs Offenders: An Overview. The Beckley Foundation Drug Policy Programme. www.idpc.net
• EMCDDA (2009) Drug Offences: Sentencing and Other Outcomes. European Monitoring Centre on Drugs and Drug Addiction: Lisbon. Available from www.emcdda.europa.eu
• Greenwald, G. (2009) Drug Decriminalisation in Portugal: Lessons for Creating Fair and Successful Drug Policies. Cato Institute: Washington available: www.cato.org/pubs/wtpapers/greenwald_whitepaper.pdf
• Law Commission (2011) Controlling and Regulating Drugs: A Review of the Misuse of Drugs Act 1975. www.lawcom.govt.nz
References• Nutt, D., King, L. and Phillips, L. (2010) Drug Harms in
the UK: A Multicriterian Decision Analysis. The Lancet, 3761558-65.
• Ruggiero, V. (2000) Crime and Markets. Oxford University Press: Oxford.
• Stewart, H. (2009) The Limits of the Harm Principle, Criminal Law and Philosophy’
• Ward, J. (2013) The Punishment of Drug Possession Cases in the Magistrates’ Courts: Time for a Rethink, European Journal on Criminal Policy and Research,19, 4, 289-307.
