The decriminalization of drug use in Portugal and its impact in the criminal justice system
15 min read
The decriminalization of drug use in Portugal and its impact in the criminal justice system
// Interview: Joao Goulão, MD
Director General of SICAD, the Portuguese Service in Addiction Behaviours and Dependencies
In July 2001, the law that decriminalised drug use came into force in Portugal; such law was part of a set of policies that gave the Health and Social sectors the centrality as far as approaching drug users is concerned, to the detriment of the area of Justice. The decriminalisation of consumption does not presuppose legalisation since the drugs have continued and continue to be considered illicit in Portugal. According to the legal framework, the acquisition and possession of drugs remain prohibited and are not legalised, whereas alternatives to punishment are offered. Nevertheless, there has been a profound paradigm shift, as consumers are no longer subject to criminal prosecution; drug use is no longer punishable by imprisonment. The uniqueness of Portugal’s approach relied on the creation of a specific institution outside the criminal justice system – the Commissions for the Dissuasion of Drug Abuse (CDT) – which provides support for users, while most other countries choosing to decriminalise personal use limit themselves to reducing or eliminating punishment. Dr João Goulão (MD) has been the most visible face in the implementation of these policies, having responsibilities in the area, namely as National Coordinator for the Problems of Drugs and Drug Addiction, since 2005.
JT: Before 2001, in Portugal, anyone who would be identified by the law enforcement authorities either consuming or in possession of drugs could be detained and subsequently sentenced to prison. Going back to those times, what was the scenario and what were the main objectives of the decriminalisation of drug use, therefore, of this policy that was implemented in Portugal?
JG: In fact, before 2001, before the entry into force of the Law 30/2000, this was a possibility. Any given person who was intercepted by the police authorities in the act of consuming or in possession of drugs could be detained, and, subsequently, an imprisonment sentence was a possibility contained in the penal code, which judges could of course apply.
In practice there was a very important prison population related to drug use, although most convictions also occurred because of petty crimes, acquisitive crimes, and, when it was a matter of mere drug use, the preferential option of judges rested with the therapeutic injunctions, therefore, to allow the addicted – the drug user – to be referred for treatment, thus exempting himself/herself to prison. But even so, there was a prison hyper-population related to consumption and small-business activities related to drugs.
We were living in a more or less cataclysmic situation at the time, with a particularly large population of heroin-addicts, the statistics pointed to around 1% of the Portuguese population – so we are 10 million and the estimate points to about 100 000 users of heroin, with all the consequences that this use had on individual and collective health, and on small criminality.
We were also in full swing of the AIDS epidemic, the impacts on individual and collective health were extremely important, the public visibility of the phenomenon as well as the stigma attached to the use of drugs also, to a large extent due to its own legal status.
As for the main objective, I would say that the main objective of the decriminalisation of drug use was – on the part of the proponents, among whom I was included – to reduce this stigma, in spreading the idea, in the Portuguese society, that we were dealing mainly with a condition of an addictive behaviour, that would have advantages in being approached from the point of view of Social and Health to the detriment of the criminal approach.
Before the decriminalisation, Portugal was living a rather cataclysmic situation with 1% of the population being dependent on heroin.
JT: At the time, the option of decriminalising drug use was a disruptive option in relation to the rest of Europe and the world; in fact, it was a very controversial road, criticised by some political factions and even “looked down upon” by international entities such as the UN. Were you sure decriminalisation would be the right way? Why?
JG: Well, we weren’t totally certain that things were going to be fine. Obviously, neither I nor my fellow proponents could be. It was, in our view, an approach predominantly made from the Social and Health fields, which would undoubtedly have advantages over the mere criminal approach, imprisonment or the application of penalties – albeit alternatives – such as fines, etc. which had very little impact on changing people’s habits and provided few opportunities for those who might have been willing to find themselves another way.
The UN was a challenge; in fact, we – the National Anti-Drug Strategy Group that was appointed in 1998 – of the few instructions we had from the government [let’s not forget that it was a government led by António Guterres and the minister responsible was at the time José Sócrates] was that we should keep within the spirit of the treaties and conventions of which we were signatories within the United Nations, and, as it is well known, these establish a prohibitionist stance.
What we have sought was to go as far as possible within this [prohibitionist] paradigm, and therefore, the proposal was for decriminalisation, maintaining the prohibition and possible sanctions applied in the scope of Administrative Law.
So this was the hue that we found – indeed brilliantly advised by Professor Faria Costa, who at the time was asked for an opinion – and who had assured us that while maintaining administrative penalties, we would remain within the spirit of the United Nations treaties.
It is curious, I think that we had a window of opportunity to pass this decriminalisation proposal, peacefully I would say, into the Portuguese society. And this window of opportunity is, from my point of view – and this is a rather personal but firmly held thesis – that the spread of the drug problems in Portugal, which started late in comparison with the remainder European countries and after our democratic revolution, had a diffusion pattern that was different from most other countries: it was transversal to all social groups and classes; the drug problems were not of the minorities nor of the ethnic minorities nor of the ghettos, nor of the “most disorganised people”.
But something that arose in all social classes: middle class, wealthier classes. There was a time when practically all Portuguese families had problems in their bosom or in their proximity, very closely, of people with problems of addiction. And this has favoured, from my point of view, in some way, the approach to these problems primarily as a health problem.
JT: Have you encountered any difficulties in carrying out this paradigm shift, despite this more favorable social context and window of opportunity?
JG: At the time, after having presented our proposal to the Government, our proposed strategy had been actually presented in 1999 [moreover, it was approved in 1999 but the issue of the decriminalisation did not fall within the powers of the Government and had to be scheduled for discussion in the National Assembly]… And, in the meantime, my colleagues and I have made a great effort to publicly discuss the proposal. Between the approval of the strategy and the passing of the decriminalisation law before the Parliament, we have organised numerous and highly contentious public debate sessions, in which the general tone – although there were, of course, some dissenting voices – was very sympathetic to the idea.
Something different was what happened in the National Assembly, where the utterly different standpoints and speeches were grounded on more ideological bases, with the support for this perspective [the decriminalisation one] to be assured by the parties more to the left, and with the declared opposition of the more right-wing parties.
The opposition was strongly focused on the idea that, on the one hand – and once again the UN – we would be ostracised, and that we would be in conflict with the United Nations bodies; on the other hand, the prospect that Portugal would make a paradise for narco-tourism… We were going to have planes arriving in Lisbon every day with tourists to freely use drugs and our little children would start using drugs with the bottle, or almost!
So, let’s say that, obviously these were, in some way, arguments that led us to think, but we felt that taking the risk was worthwhile. We were perfectly convinced that this [the doomsday scenario] was not going to happen – as it didn’t, in practice! Fortunately today, more than 15 years later, we can look back and realise, in fact, that none of those darker prospects came to be.
JT: Are there any challenges still, regarding the implementation of the policy?
JG: Not really. I would say that this issue, and considering the level we are in now, is perfectly solved. And the way we, nowadays, look at the mechanism that has been created for the implementation of this new law – and therefore the set of commissions for the deterrence of drug addiction – hence, the administrative body which has the possibility of applying sanctions in the field of misconduct.
It also has the responsibility, above all, of identifying the needs of the drug addicted citizen and to monitor them according to the specific situation they are dealing with. Thus, our action is directed either at the addicted person who requires care and treatment for his/her addiction, or at the recreational user (in whom certain risk factors coexist and upon which it is possible to intervene – or intervene early – to prevent that his/her drug use path becomes more problematic in the future).
Therefore, the great objective today is to dissuade and interrupt the path that can lead the person to addiction and this is achieved through the offer of answers both in social and in psychological levels. One should intervene in life areas that, often, people only become aware when they are confronted with and when they have the opportunity to discuss the framing of their drug use with professionals. In practice, we are, nowadays, operating as a device to prevent all kinds of drug addictions.
I think we enjoyed a window of opportunity to peacefully get the decriminalisation proposal through in the Portuguese society... We had a drug problem diffusion pattern that was different from most countries: it was transversal to all social groups and classes.
JT: Does it seem to you that the resources that were previously used in the implementation of justice measures have been reallocated to Prevention and Health?
JG: I wouldn’t say so. I would not say that there was a system of direct communicating vessels, so to speak, in which the resources allocated to actions prior to the decriminalisation had been reallocated to Health.
I think that the budgets available for the area of Justice, the police force, etc., have reasonably remained. What we have witnessed is a significant increase and an improvement in conditions.
For example, within the prison system: by keeping its resources and having a smaller population, it was possible to offer better conditions to the prison population, and to actually improve the provision of healthcare within the prison system. But I would not say that they have cut off some of the resources and that this part has been directly allocated to Health.
In the Health sector, there was an investment that was growing gradually and that allowed us to increase and solidify a care network that today is very solid and capable of meeting the needs of the citizens.
JT: Although Portugal is considered a shining example in this area for the work that has already been described throughout this interview, not all battles have been won and there are some measures – such as the exchange of needles in prisons – that haven’t led to the desired success yet. Do you agree with this conclusion? What other aspects have fallen short regarding the change plan that was originally intended to be implemented?
JG: The needles’ exchange in prisons is one of the measures that, in practice, doesn’t work, and it doesn’t work because of the model that has been found – which, by the way, was laboriously negotiated between all the partners – [as for the partners involved, I am thinking, for example, of the prison guards, they’re important partners in such policies]…
They have invoked and they still claim that the needles’ exchange program in prisons represents a risk to the guards themselves and thus to their personal physical safety. They seem to be little sensitive to the idea that decreasing the population of potentially infected syringes by replacing them with sterile ones would automatically decrease the likelihood of such a risk.
The needles can be used as weapons – hence the model found for the exchange of needles in prisons entails the inmate’s self-disclosure to prison health professionals and it has to be through these health services that they can access new needles… Given this reality, in practice, [no inmate] takes the risk, because his/her self-delusion – at least in his or her imaginary – may have consequences at the level of small privileges, such as precarious exits, basically, any special treatment they might have inside the prison.
Therefore they prefer not to refer themselves as injecting drug users, and naturally they continue to access needles via the routes they used before and, in many cases, through sharing needles. However the studies that we carry out in prisons – in collaboration with the General Directorate of Reinsertion and Prison Services – show that the injecting drug use has been falling very significantly over the years.
JT: What role does the Intervention Service in Addiction Behaviors and Dependencies (SICAD) play within the Portuguese prison system?
JG: The organisational model of the responses, in the Portuguese Ministry of Health, directed at this issue is, presently, different from what it was a few years ago.
We had the Institute for Drugs and Drug Addiction (IDT) – which had the capacity to think and harmonise policies with various ministries and then to implement them in the field of Health, directly on the field through local intervention units who worked closely with the Prison Services.
Today, the design is different: SICAD is a Directorate-General. It goes on having this ability to think and define policies, but then the performers are external: in practice, they are the same units but they are now dependent on the Regional Health Administrations.
And this, whether we like it or not, has caused some entropy in this operation. Thus, this articulation [with the Prison Services] – once very fluid and very direct – has become more mediated, it has more layers, so, in practice, it means that something was lost regarding the agility of the answers.
Basically, SICAD itself works directly with the Prison Services in defining guidelines of action and intervention, but this organisational model that we have today, somehow, hinders, to a certain extent, the close connection and work that we used to have. That is why we are now rethinking these structures, within a working group mediated by the Minister of Health, to evaluate the pros and cons of this model found by the previous Government.
JT: Portugal’s policy regarding its drugs legal framework and practice has been internationally recognised by the academic community, by the press, and by international organisations. And it has recently also been at the UN to present the result of these years… Has this international recognition meant any national reinforcement of support for the implementation of new measures?
JG: I think that this international recognition was, and basically has been, a positive reinforcement so that we can continue in the line that was consecrated by that strategy of 1999, that is to say, an approach based in Health, in the Social area, etc.
In the United Nations, at this special session of the General Assembly, last year in April, there was, for example, a very significant figure: the international drug control body [The International Narcotics Control Board].
The INCB was initially very critical of the way Portugal had taken – in the early stages of 2001-2002 – and a few years later came to recognise that, despite Portugal having decriminalised drug use, the results seem, globally, positive.
In 2016, the President of that international entity made a presentation in which he showed a slide that says, for instance, that Portugal is an example of good practice within the spirit of the United Nations treaties. So, it was a journey that took a few years, but today there is a recognition of the goodness of our option, a recognition that also comes from the UN structures.
And this, of course, makes life easier for many other countries that somehow felt inclined to accompany us on this journey, but who were still drawn back by the critics of the UN. Now, such countries are surely much more comfortable in doing so. And this seems to us to be a priceless contribution that Portugal, after all, gave to the world, opening new possibilities for addressing these issues.
JT: We know the impact that the so-called ‘war on drugs’ has been having on the American criminal justice system, and we have stories, in the press, that tell us about violations of fundamental rights and the rule of law, for example in the Philippines regarding this matter. What countries do you think would benefit more from adopting this Portuguese model?
JG: I think that all of them could benefit from this movement which, actually, has already been occurring. At a European level, for example, it has been notorious – not properly and expressly in drug decriminalisation, but in the focus of approaching the areas of Health and Social – that this has been happening gradually.
Some countries have also taken the step of decriminalisation: the Czech Republic is one of the examples, although there still seems to be no major impact on their prison population.
Now, what I think is that there are countries that are jumping a little forward and jumping to a new paradigm. Not anymore in the prohibitionist paradigm in which, after all, we are still moving, but they are moving to a new paradigm that is the regulatory paradigm.
And, at the forefront of this paradigm are some countries, for example, some countries in Latin America, such as Uruguay and others. Those are particularly hit by the violence related to traffic, production, and the drug market.
I would say that while in Europe, for example, drugs kill because people consume it and there are overdoses, etc., in Latin America drug kills mainly because people are shooting at each other. So it’s gangs, and then there’s the police and the gangs, the corrupt law enforcement agents. Anyway, I would say that drug kills a lot more with bullets than due to its consumption.
On the other hand, this is a new path that is being pursued. Some States in the United States are also in this new regulatory experience. I think we should be careful to monitor the evolution of the indicators in those countries and in those States and see if, in fact, as we have constituted a social laboratory – we have an experience that we can consider globally successful – let’s see what happens with these experiences.
Our great responsibility, I believe, is to help the countries that have lagged behind… the Philippines, Indonesia, and some countries in this part of the world, where there is still a capital punishment for crimes related to drugs.
We have to try to help these countries to get ahead, so to speak, and to adopt policies that are more respectful of human rights – this is a first step. I hope, then, that the decriminalisation of consumption can be followed, but, for now, any progress on such violent approaches that still exist towards drug users would be frankly good.
Dr. João Goulão, MD, is the Director General of SICAD, the Portuguese Service in Addiction Behaviors and Dependencies and one of the main ambassadors of the drug use decriminalisation, in Portugal.