International approaches to drug law reform: research

2. Frameworks for considering law reform

'The policing of drug markets is usually conceptualised primarily as a matter of law enforcement – drug dealers and people who use drugs are breaking the law, and the role of the police is to reduce such law breaking. However, the wider purpose of policing is to ensure the safety of the community by reducing harms to its members' (Stevens, 2013).

2.1 The case for considering change

• There is much to be done to reduce drug harms in Scotland, but there are limits on how radically practice can change without changing the legislative framework. While regulation can be imperfect at achieving its objectives, the government has a wide range of policy options at its disposal which can be used to help mitigate risks outside of the criminal law.
• There is no strong link between harsh penalties and the prevalence of drug use. One might expect that countries that have the toughest penalties for drug use would also have the lowest levels of drug use. However, there is no obvious relationship between how prevalent drug use is and how aggressively the criminal law and other regulatory policies are applied. A study of the global prevalence of common recreational drugs concluded: "Globally, drug use is not distributed evenly and is not simply related to drug policy, since countries with stringent user-level illegal drug policies did not have lower levels of use than countries with liberal ones" (Degenhardt, 2008).
• Some jurisdictions have created fully legal, regulated markets for some drugs, although this is a relatively recent approach and there are only a small number of examples so far.
• More common are jurisdictions that have undertaken some kind of decriminalisation, the main options being:
  • Removal of use/possession from criminal law, irrespective of the amount possessed. This may be with a civil sanction or no action at all (a civil sanction might apply, for example, when a place of use restriction is breached, such as use in a public park).
  • Removal of use/possession from criminal law up to a certain threshold amount.
  • Removal of criminal penalties for eligible people or offences, up to a certain threshold amount (for example, a maximum number of cautions).
  • Change in practice, without removal from the criminal law (de facto decriminalisation), although this raises issues in relation to the rule of law and potential bias in application.
• However, these less ambitious reforms, such as instituting fines and other civil penalties, do not remove all of the costs associated with criminalisation:
  • Even if characterised as noncriminal sanctions, civil fines and the associated administrative process can have significant punitive effects, which may be indistinguishable from the effects of court-imposed fines for criminal offences (Quilter & McNamara, 2019).
  • Reducing penalties for illicit drugs may result in net-widening if the lower threshold makes it more likely police will formally process people who may otherwise have benefited from discretion, as has been seen in parts of Australia. In the United Kingdom, when cannabis was reclassified as a lower-class drug and police were advised to warn and confiscate rather than arrest users, the number of convictions fell initially, but eventually returned to previous levels and the overall number of drug possession offences increased sharply with more formal warnings (Bryan, Del Bono, & Pudney, 2011).

2.2 Harms

Key Points

• Most drugs do not inherently cause large amounts of harm when used casually. Rather, the vast majority of harm arises from dependence.
• The hierarchy of harm is not well represented in most counties' classification laws – for example ecstasy and LSD are consistently ranked as two of the lowest harm drugs, but are class A drugs in most places.
• On the basis of data on harms in the UK, it is clear that the present UK drug classification system is not directly based on the harm each substance causes.

In setting policy goals, it is important to consider the magnitude and distribution of drug harms. Different drugs have different usage patterns and different impacts on people who use them, and (although all drugs are used in all segments of society) some predominate in particular groups.

• An illicit drug harm index developed for the New Zealand Ministry of Health estimated that the harms per drug user between casual and dependent users, and between substances, differ significantly (McFadden Consultancy, 2016). They considered individual harm through disability/death, and social harms including drug related violence, property crime, organised crime reinvestment in other crimes, harms to family and friends, tax avoidance, and legal/social intervention costs. The chart below shows their estimates of harm per casual user and per dependent user. It shows that:
  • Most drugs do not inherently cause large amounts of harm when used casually. Rather, the vast majority of harm arises from dependence.
  • The hierarchy of harm is not well represented in most counties' classification laws – for example ecstasy and LSD are the two lowest harm drugs, but are typically class A drugs in most places.

Other studies also consistently rank the relative harms of ecstasy and cannabis as lower than that of legal drugs (alcohol and tobacco) and other illicit drugs (such as heroin and cocaine) (for example: (Bonomo, et al., 2019) (van Amsterdam, Nutt, Phillips, & van den Brink, 2015)).

• A British study in 2010 analysed data from a multicriteria decision analysis conference on drug harms. The harms were assessed according to a set of 16 criteria developed by the Advisory Council on the Misuse of Drugs (Nutt, King, & Phillips, 2010). The harms assessed were:

Harms to users

• Drug-specific mortality
• Drug-related mortality
• Drug-specific physical damage
• Dependency
• Drug-specific impairment of mental function
• Loss of tangibles
• Loss of relationships

Harms to others

• Physical or psychological injury
• Crime
• Environmental damage
• Family adversities
• International damage
• Economic cost
• Community

• Weighted scores provided ratings on harm to the individual, harm to society, and an overall harm score. These findings lend support to earlier work from both UK and Dutch expert committees on assessing drug harms. It concluded that "on the basis of these data it is clear that the present UK drug classification system is not simply based on considerations of harm." The final ratings for all drugs considered are shown in the chart below:

The weights after normalisation (0-100) are shown in the key (cumulative in the sense of sums of all the normalised weights for all the criteria to users, 46; and for all the criteria to others, 54). CW=cumulative weight, GYB=hydroxybutyric acid. LCD=lysergic acis diethylamide.

• The economic harms of inefficient policies should also be considered. Research by Transform Drug Policy Foundation (Rolles, 2009) considered four hypothetical scenarios, and estimated the benefits bringing all drugs in England and Wales under formal regulation. Their estimates for different scenarios are laid out below (estimates for FY 2003/4):

Change in number of drug users	Estimated benefits from regulation of all drugs in England and Wales, compared to prohibition
Decrease by 50%	£13.9 billion
No Change	£10.8 billion
Increase 50%	£7.7 billion
Increase 100%	£4.6 billion

The study concluded regulation was a more cost-effective approach than prohibition.

2.3 Risk environment

Key Points

• How the law is implemented and enforced can significantly impact the effectiveness of interventions.
• The risk environment for people who use drugs is influenced by many factors. Both practical policing decisions (such as physical patrols) and bureaucratic structures (such as inter-agency referral pathways) can significantly influence people's decisions about drug use and service engagement.

In addition to more accurately conceptualising drug use harms, the breadth of the law's implications (both intended and unintended) must be considered in terms of its contribution to the environment in which people view, buy and use drugs. The table below shows an example of the factors that influence the HIV risk environment, which has many overlaps with other drug harms.

Stevens et al note that "The outcomes of diversion will depend on relationships between policing systems and other agencies as well as the capacity of healthcare and welfare systems to provide effective treatment and to support social integration" (Price, Parkes, & Malloch, 2020).

The Ontario Treatment Network have written about the importance of appropriate policing responses in balancing the risk environment for drug users: "while macro- and meso-level laws and policies are intended to guide policing responses to drug and injection equipment possession and use, they do not necessarily align with policing behaviour enforced on the streets. Engaging police in harm reduction strategies may provide an opportunity to reduce the injection drug-associated harms while also reducing crime" (Rapid Response Service, 2016)

How the law is implemented and enforced can significantly impact the effectiveness of interventions. Ontario treatment network's paper on engaging law enforcement in harm reduction programs for people who inject drugs found evidence to support the conclusions that:

• Policing practices can hinder injection drug users' access to sterile syringes
• Police targeting people who inject drugs can increase unsafe injecting behaviour
• Police presence can impact health outcomes for people who inject drugs
• Members of minority groups who inject drugs can be unequally targeted in enforcement.
• Harm reduction can be supported by:
  • collaboration between the law enforcement and public health sectors;
  • encouraging police discretion with the law in encounters with people who inject drugs;
  • providing comprehensive harm reduction training for police officers;
  • limiting police presence surrounding harm reduction and health services used by people who inject drugs.

Public policy may be oriented towards harm reduction, and individual-level services may be available – but the legal framework and the police who enforce it have substantial power to either encourage or deter their successful engagement.

2.4 What doesn't work

Key Points

• The specific study of ineffective interventions and what doesn't work to reduce harms is a relatively new field, but a consensus is emerging that ineffective interventions tend to be ones that:
  • are excessively punitive or involve excessively close monitoring
  • do not involve a rehabilitative element or build skills for the future
  • reinforce criminal identity
  • are implemented poorly
• A common failure of many interventions, whether psychoeducational, control oriented or deterrence-oriented, is a failure to help people to gain the skills they need to manage situations differently in the future.

An ideal legal framework should create harmony rather than tension between the obligations and incentives law enforcement face, and those faced by health and social care providers. Where there is tension between legal enforcement and evidence-based interventions, substantial resource can be wasted on ineffective treatments, services that are never accessed by those who need them, or even interventions that increase rather than decrease people's risks of harm. With that in mind, considering what does not work for those with drug dependency in the justice system is as important as what does work.

The field of specifically studying ineffective interventions is still young, but a number of quality review papers have begun to identify some of their common features:

• Interventions that are excessively punitive or involve excessively close monitoring are likely to be ineffective
  • MacKenzie and Farrington's (2015) and Lipsey and Cullen's (2007) systematic reviews both concluded that effective interventions for reducing reoffending were those that are rehabilitative and skills building (e.g., drug treatment and cognitive skills programs), while ineffective interventions were, on average, characterized by surveillance and control, including prison sentences, boot camps, and intensive community supervision.
  • Barnett and Howard (2018) review 21 systematic reviews on effective interventions for those either in prison or serving sentences in the community. It concluded that for those monitored in the community, increased supervision or surveillance without rehabilitative support may be ineffective. The authors note that neither ignition interlock interventions (for drink-driving) nor regular drug testing had any impact on recidivism as stand-alone strategies - consistent with a number of other rigorous evaluations of intensive supervision, surveillance and control based strategies, which have generally been unlikely to have a positive impact on reoffending for young adults or adults (Lipsey, 2009) (MacKenzie & Farrington, 2015).
  • Koehler et al's (2014) meta-analysis included three robust studies of drug testing orders, involving regular urine testing and increasing the likelihood of detecting use (two programmes included some form of psychosocial care as well). Analysis showed no significant effect on crime or substance abuse by participants, although the authors also noted that there may be some deterrent effect for specific sub-groups, for example, people whose drug use is less entrenched.
  • There is, broadly, a strong evidence base for the effectiveness of Opioid Maintenance Therapy (OMT) in reducing heroin use, drug injecting and drug driven crime. However, meta-analysis looking specifically at prison-based OMT for substance misuse, showed that although receiving OMT in prison did reduce illicit opiate use, findings on criminal recidivism were mixed, and studies reporting a positive impact on reoffending found that benefits were lost within 6 months (Hedrich, et al., 2011).
• Interventions that do not involve a rehabilitative element, or do not build skills for the future are likely to be ineffective
  • Prendergast et al's (2013) meta-analysis of international drug treatment found that interventions that do not adhere to Risk-Need-Responsivity (RNR) principles (i.e., did not match level of treatment to level of risk of reoffending, did not target factors known to be associated with crime, and did not use multimodal, cognitive-behavioural approaches to treatment) were less effective in reducing reoffending, than those adhering to these principles. The authors concluded that, in general, drug treatment programs have a greater impact on drug outcomes than crime outcomes, but that the application of RNR principles increased the impact on crime outcomes.
  • Barnet and Howard (2018) conclude that a common failure of many interventions, whether psychoeducational, control oriented or deterrence-oriented, is a failure to help people to gain skills needed to manage situations differently. They note that "Simply helping people to see the impact of their crimes, the consequences of their decisions or preventing them from engaging in certain behaviors for a limited amount of time, does not appear to help people change behavior in the long term. This is supported by behaviour change research more generally, which suggests that people need not only the motivation to change, but must be capable of that change (i.e., have the right knowledge and skills), and have the opportunity to enact that change" (Michie, van Stralen, & West, 2011).
• Reinforcing criminal identity is likely to increase the risk of reoffending
  • The recidivism literature shows that developing a prosocial, noncriminal identity is important to negotiating the hardships and setbacks associated with rebuilding one's life and reintegrating into the community following a conviction, while a criminal identity can lead people to feel "doomed to deviance" (Maruna, 2001). Barnet et al (2018) argue based on their systematic review that "it is possible that custodial sanctions, boot camps, mandatory treatment, and drug testing or intensive supervision may convey the message to some individuals that others believe they are highly likely to reoffend, or that a return to crime is almost inevitable".
• Programmes that are not well implemented are unlikely to work
  • Welsh and Rocque's review (2014) found that the majority of studies indicated that drug treatment programmes and specialist drug courts have a positive impact and demonstrably reduce reoffending. However, they also identified five evaluations that concluded the intervention under examination had not just been ineffective, but had harmed participants. In the author's view, this was most likely related to poor implementation and adherence to programme design.