Jon Heidt

The International Centre for Criminal Law Reform just published a study conducted by Jon Heidt on Alternatives to the Criminalization of Simple Possession of Illicit Drugs.[1] The study, funded by Public Safety Canada, reviews the key research literature on the impact of decriminalization and depenalization of simple possession of illicit drugs, as well as related diversion and harm reduction programs.

There are two major alternatives to the criminalization of simple possession of illicit drugs that countries have implemented thus far: decriminalization or some form of depenalization coupled with the use of diversion and harm reduction programs.[2] Decriminalization[3] refers to formally eliminating criminal penalties for simple possession of drugs. Depenalization occurs when there is a reduction in the penalties associated with simple drug possession. Diversion programs involve activities that divert drug users away from the criminal justice system and into therapeutic or social services.  These programs are often used in countries that have already reduced penalties for simple possession of illicit drugs (e.g., depenalization) but in some cases they are used in countries that still have prohibition in place (e.g., certain U.S. states).

The study considers several crime and criminal justice indicators used to evaluate the impact that different approaches to drug policy may have on society. The indicators include crime rates, levels of organized crime, rates of imprisonment, levels of public disorder (e.g., open air drug use and dealing), drug availability and price, drug use trends and patterns, rates of drug treatment participation, rates of addiction and overdose, and rates of drug related mortality.

Despite the claims of many supporters of drug prohibition, there seems to be little deterrent effect associated with this policy. In fact, there is evidence that prohibition gives rise to increasingly stronger drugs, and that supply side strategies are not equipped or able to deal with modern drug markets. Furthermore, neither decriminalization nor depenalization were found to lead to significantly higher rates of crime or drug use. Numerous studies in several countries suggested that supervised injection sites and drug consumption rooms did not raise crime rates in the areas, reduced levels of public disorder and open-air drug use, and raised the likelihood that participants would engage in detoxification and treatment programs.

Drug price and potency do not seem to be significantly affected by the liberalization of drug policy; instead, other factors such as globalization and new technologies appear to have a greater impact on drug prices. Several studies suggest that liberalization of drug policy results in improvements in mental and public health outcomes including higher treatment uptake and lower rates of drug related mortality.

Racial disparities are widespread in the enforcement of drug policy in a variety of countries and persist even in the face of drug policy reform. On a positive note, many jurisdictions that have liberalized drug policy saved money in criminal justice system costs because of less enforcement, reduced court costs, and lower levels of imprisonment. Some studies indicate that police activities were redirected to more serious forms of crime under decriminalization and depenalization approaches. Net-widening was found to be a serious concern in some jurisdictions especially with regards to the impact it can have on marginalized people and minorities. Drug courts were found to result in less recidivism and better outcomes for the participants while also lowering criminal justice system costs.

If Canada adheres to the status quo of prohibition with depenalization, it will be difficult to address the pressing problems around drug use stemming from the emergence of increasingly potent synthetic drugs, racial disparities in enforcement of drug policy, and the high rates of drug related mortality brought on by the opioid overdose crisis.

Canada has a choice to make in terms of drug policy. The status quo can be retained, and prohibition can remain in place. However, this will make it extremely difficult to address the problems identified in this report – racial disparities, limited enforcement and deterrence, and high rates (i.e., normalization) of drug use amongst youth. Further, there are problems that will continue to arise in the future that are impossible to address with the current system. The opioid overdose epidemic has accentuated the problems with repressive drug policies. Based on existing evidence, it seems that supply side strategies will become increasingly futile in the future. New and more powerful synthetic drugs are constantly emerging produced by underground chemists in large quantities that can then be sold in an anonymous online environment which is incredibly difficult to police. Some recent research also indicates that some harm reduction site clients are knowingly using fentanyl despite being aware of its risks suggesting that a preference might be developing for more potent opioid drugs.

Canada seems well-poised to explore the possibility of implementing decriminalization of simple drug possession. Major stakeholders in Canada have expressed support for decriminalization. However, there remain concerns especially amongst drug user advocacy groups about net-widening and its impact on marginalized people, minorities, and young people. Another important challenge to consider is the level of funding that will be required for such a policy shift. Decriminalization is often presented as a way to lower costs in the criminal justice system, and to some this might imply a reduction in taxes with reinvestment. However, it is important to realize that this policy shift is a massive financial commitment as well as a massive social commitment.

The report highlights some implications of its key findings for future research. For instance, there is an urgent need for research that incorporates the lived experience of people with experience using drugs that can be used to inform a decriminalization policy. There is also a need for more studies that help clarify the relationship between threshold possession limits, enforcement, and net-widening. Finally, it will be important to consider how new sanctions under a decriminalization regime could cause harm through increased enforcement.

[1] Heidt, Jon (2021). Alternatives to the Criminalization of Simple Possession of Illicit Drugs: Review and Analysis of the Literature. Vancouver: International Centre for Criminal Law Reform. https://icclr.org/wp-content/uploads/2021/12/Heidt_Alternatives-to-criminalization-of-simple-possession.pdf?x96127

[2] Legalization of simple possession of drugs is a fourth option; however, no country has tried this approach beyond legalizing cannabis.

[3] The term decriminalization is used in very inconsistent ways as it sometimes used interchangeably with what are essentially diversion programs or approaches that involve simply reducing the penalty for possession from a felony to a misdemeanor (i.e., depenalization or defelonization).

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