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Loosening Up in Lisbon

Portugal’s drug decriminalization is a model of successful reform. Too bad it would never work here.

(Photo courtesy the Cato Institute)

Portugal decriminalized all drugs eight years ago. Consider yourself excused if you haven’t heard about this—it’s something of an open secret. Part of the reason is that, by any measurable standard, it has been a success, and here in the United States we are accustomed to having our drug news wrapped in a thick layer of dread and shock. It’s simply inconceivable, according to the rules of our discourse, that decriminalizing drugs could make a country’s drug problem better rather than worse.

The Cato Institute commissioned a report on the subject, sending blogger, author, and attorney Glenn Greenwald (whose fluency in Portuguese certainly helped) to Portugal to gather data and talk to law enforcement and public health officials. Last Friday, he presented his findings at Cato. Greenwald’s paper will be very helpful for those fighting to reform our nation’s drug laws, as it conclusively shows that the nightmare post-decriminalization scenarios painted by drug warriors are completely unfounded. But even with the Portugal example pointing the way toward sensible-yet-effective laws, it will be very hard for the United States to replicate that country’s success if we don’t first reform a much more fundamental problem—the manner in which we and our politicians discuss drugs.

While the details of Portugal’s new laws can be found in Greenwald’s report (PDF), it’s worth running down the basics. Drugs have not been “legalized” in Portugal. Because Portugal is party to international treaties whose members pledge not to legalize drugs within their borders, legalization wasn’t a possibility there. Instead, drugs have been decriminalized, and their use and possession is now an administrative rather than a criminal matter. If you are caught using or in possession an outlawed drug by a police officer, and the amount in question is less than ten days of the average dose for the substance in question (above which you can be charged for trafficking, which remains a criminal offense), the officer is required to issue you a citation.

Within 72 hours, you are mandated to appear before a group of three officials called a “Commission for the Dissuasion of Drug Addiction.” Dissuasion commissions, which are composed of one official appointed by the Ministry of Justice and two by the Ministry of Health working in tandem with the government’s coordinator of drug policy, are designed from the ground up to avoid the stigma that comes with criminal charges. This goal extends all the way down to the informal dress of the commission officials, and to the fact that they sit at the same level as the subject they are questioning.

The commission looks at the facts of each case and has the power to issue fines or other sanctions (up to and including suspension of the subject’s rights to do a job that requires a license, a ban on going to nightclubs, or orders to stay away from certain individuals), but the laws are written in a way to instead encourage treatment, or, if the subject of the commission doesn’t appear to have any addiction problem, to suspend the proceedings altogether, placing the subject on probation. In 2005, of 3,192 dissuasion commission cases, 83 percent were suspended. The “overwhelming majority” of cases where more serious sanctions were imposed, the report notes, “merely required the offenders to report periodically to designated locales.”

In addition to treating those who may suffer from drug addiction in a more humane manner, the Portuguese decriminalization effort has served as a handy empirical rebuttal to every opponent of loosening drug laws. All the relevant addiction, crime, and health metrics have stayed constant or have declined, and Portugal has not, as some people had worried, become a destination for “drug tourism.”

That’s not to say there aren’t a few question marks in the new policy. For one thing, the way in which the user/dealer distinction is demarcated certainly leaves open the possibility of users getting conflated with traffickers in borderline cases (there are certainly cannabis enthusiasts who don’t deal, but who have a stash of more than ten day’s worth). The decriminalization law also allows a physician to inform the dissuasion commission if he or she suspects a patient of drug use. While the available evidence suggests this doesn’t happen much—physicians in Portugal would appear to be just as concerned with patient-doctor confidentiality as their American counterparts—the provision still comes off as spooky.

So what does all of this mean for the United States? We have a bit of a drug problem of our own, of course, one that has led us to imprison non-violent offenders at embarrassingly high rates and which has contributed to horrific bloodshed on and around the border with Mexico. The answer, unfortunately, is that until we completely reform how our politicians talk about drugs, the Portugal example may as well be a far-off abstraction.

The clearest indication of the divide between U.S. and Portuguese attitudes on drugs comes not from the law itself, but from how it came about. The impetus, as Greenwald explained, wasn’t that Portugal is a socially progressive place that was interested in tinkering with its approach to drug-related criminal law. Rather, the move was born of desperation. “The 1990s in Portugal saw probably one of the most acute and severe and uncontrollable problems with drug addiction and drug-related pathologies,” Greenwald said—both drug use and all the other social problems that come with it were “spiraling out of control” during the decade. Increased criminal enforcement did little to stem the tide.

So in 1998 Portugal formed an apolitical commission of health-care and social policy experts to examine the problem, whose mandate, Greenwald said, was to “strip the ideological and moral questions away and ground whatever their assessments were in purely empirical analysis.” The commission concluded that decriminalization was the policy that would best ameliorate the worsening situation. A council of political figures was then formed to review the commission’s requests and issue recommendations of their own. After its members agreed to the vast majority of the first commission’s recommendations, the Portuguese parliament voted in October of 2000 to enact decriminalization, and the new law took effect on July 1, 2001.

At the moment, it’s inconceivable that a process like this would ever take place in the United States. While there has been recent progress—major victories for drug-war-reformation advocates in Massachusetts and New York, as well as a more moderate approach to medical marijuana from the White House than we saw during the Bush years (although it’s unclear just how different things will be)—the political climate isn’t quite ripe for the major changes the United States’ broken system needs. Just a few weeks ago, after all, our allegedly progressive president responded to a question about legalizing marijuana by joking about it in, as Greenwald put it, a “snide and dismissive” manner. And any large-scale effort to attack the issue via a commission would open the door to the sorts of anti-drug, tough-on-crime posturing—from politicians of both parties—that has led us to a prison system that constitutes a human rights catastrophe. It would be an ultra-politicized circus, not the sort of measured, objective approach Portugal was able to pull of.

At Cato last week, I asked Greenwald how he thought we could best translate the Portugal example to reform here. Greenwald pointed to Senator Jim Webb (D-Va.), who recently introduced a bill (PDF) calling for a commission to examine our criminal justice system and historically high (unique, in fact) incarceration rates. The fact that Webb’s idea has received some bipartisan support is encouraging, but it will be only a first baby step toward the victories that Portugal has seen. In the meantime, Americans concerned with reforming their nation’s draconian drug laws will have to watch Portugal’s success story from a distance while they wait for a more sensible, reasonable discussion about narcotics to take hold at home.

Jesse Singal is an associate editor of Campus Progress.

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