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WHAT CAN WE LEARN FROM THE PORTUGUESE
DECRIMINALIZATION OF ILLICIT DRUGS?
Caitlin Elizabeth Hughes
*
and
Alex Stevens
The issue of decriminalizing illicit drugs is hotly debated, but is rarely subject to evidence-based
analysis. This paper examines the case of Portugal, a nation that decriminalized the use and pos-
session of all illicit drugs on 1 July 2001. Drawing upon independent evaluations and interviews
conducted with 13 key stakeholders in 2007 and 2009, it critically analyses the criminal justice and
health impacts against trends from neighbouring Spain and Italy. It concludes that contrary to
predictions, the Portuguese decriminalization did not lead to major increases in drug use. Indeed,
evidence indicates reductions in problematic use, drug-related harms and criminal justice
overcrowding. The article discusses these developments in the context of drug law debates and
criminological discussions on late modern governance.
Keywords: decriminalization, Portugal, drug, policy, legislation
Introduction
Efforts to improve criminal justice policy r
esponses to drug use and distribution have
led to frequent and often heated discussions around the necessity of applying crim-
inal penalties and the merits of a number of al
ternate legislative approaches (see, e.g.
discussions in Australia, the United Kingdom and the United States), including le-
galization, decriminalization and depenalization. These terms are often used erro-
neously and interchangeably. For the purposes of the current article, we define each
as the following: legalization is defined as the complete removal of sanctions, making
a certain behaviour legal and applying no criminal or administrative penalty; decrim-
inalization is defined as the removal of sanctions under the criminal law, with op-
tional use of administrative sanctions
(e.g. provision of civil fines or court-
ordered therapeutic
responses); and depenalization is the decision in practice
not to criminally penalize offenders, such
as non-prosecution or non-arrest. These
forms of regulation of currently illicit substances are often discussed, but are rarely
tested in practice.
Political reluctance to reform drug laws has been clearly demonstrated in recent years
in the United Kingdom. Despite international evidence that rates of drug use are not
directly affected by harsher punishment of drug users (Reuter and Stevens 2007;
Degenhardt
et al.
2008) (and pressure from multiple advocates), the British Govern-
ment has firmly opposed any move towards decriminalization. Politicians have warned
that decriminalization of cannabis would ‘send the wrong message’ (Home Affairs Com-
mittee Inquiry into Drug Policy 2002: para. 74). Some researchers (McKeganey 2007;
Inciardi 2008; Singer 2008) have supported this argument, arguing that removing
*
Dr, Drug Policy Modelling Program, National Drug and Alcohol Research Centre, UNSW, NSW, Australia, 2052; caitlin.hughes
@unsw.edu.au.
Ó
The Author 2010. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD).
All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org
doi:10.1093/bjc/azq038
BRIT. J. CRIMINOL. (2010)
50
, 999–1022
Advance Access publication 21 July 2010
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criminal penalties would lead to increased drug use, with harms falling hardest on the
deprived communities that are already the most damaged by drug-related problems.
However, most public arguments are based on speculation rather than the available
evidence on effects.
The predominance of speculation over ev
idence can be attributed to a number of
factors. First, the United Nations conventions on illicit drugs require that nation
states prohibit illicit drug cultivation,
manufacturing, sale and possession. They
therefore limit the possibility of experimen
tation with alternative modes of regula-
tion. There is some ‘room for manoeuvre’ (Dorn and Jamieson 2001), as shown by the
use of various forms of decri
minalization and depenalizat
ionintheUnitedStates,
Italy, Spain, the Czech Republic, Germany
, Australia and the Netherlands. A second
limit to the use of evidence in debates over drug regulation is the limited and variable
evidence surrounding the impacts of these e
xisting forms of liberalization. Where
reforms that have been studied, differen
t methods and approaches have been used
(Model 1993; Donnelly
et al.
1995; McDonald and Atkinson 1995; Sutton and
McMillan 1998; Lenton
et al.
1999; Single
et al.
2000; Solivetti 2001; Kilmer 2002; Korf
2002; Pacula
et al.
2004; Williams 2004; Featherston and Lenton 2007; Domrongplasit
et al.
2010; Reinarman 2009). To date, the major focus of analysis has been whether
decriminalization leads to increases in t
he prevalence of drug use. Most studies
have found there are no significant increases in use (e.g. Donnelly
et al.
1995;
1999; Featherston and Lenton 2007). Other
s have found a slight increase (e.g.
Williams 2004; Zhao and Harris 2004; Damrongplasit
et al.
2010). Still others have
shown how difficult it is to make any certain judgment on the effects of decriminal-
ization on drug use, given the absence of adequate comparators (Pacula
et al.
2004;
Hughes 2009).
Social and criminal justice impacts have also been mixed. One of the best studied
reforms has been the South Australian cannabis expiation notice scheme introduced
in 1987. Evaluators found that ‘decriminalization’ led to increased employment pros-
pects and increased trust of police (Lenton
et al.
1999). Yet, it also led to net-widening.
More people received formal contact with the criminal justice system than prior to the
reform (Sutton and McMillan 1998). In fact, there was a 280 per cent increase in ex-
piable cannabis offences, which meant there was an overall increase in the burden
on the criminal justice system (Christie and Ali 2000).
The most comprehensive synthetic review of the impacts of the decriminalization of
illicit drugs has been conducted by MacCoun and Reuter (2001
a
), using data from the
Netherlands, United States, Australia and Italy. They concluded that the removal of
criminal penalties appeared to produce positive but slight impacts. The primary impact
was reducing the burden and cost in the criminal justice system. This also reduced the
intrusiveness of criminal justice responses to users. The removal of criminal penalties
alone had little or no impact on the prevalence of drug use or drug-related health
harms. The extent of additional use depended rather on the extent to which there
was commercial promotion. They used the example of the Netherlands, where the rise
in cannabis use did not immediately follow its depenalization, but coincided with the
development of ‘coffee shops’ that openly promoted their illicit wares (MacCoun and
Reuter 2001
b
).
Their analysis came too early to include the Portuguese move towards decriminaliza-
tion, which entered into force on 1 July 2001. The Portuguese reform warrants particular
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attention, as it is a comprehensive form of decriminalization, with the possession of
all
drugs, when deemed for personal use,
1
now considered to be an administrative rather
than a criminal offence. Equally importantly, one key rationale for the reform was to
provide a more health-oriented response, including the possibility to refer people
who are dependent on drugs into treatment. Many of the reforms in other countries
simply seek, in contrast, to avoid criminal penalties for drug users.
The Portuguese reform has now been in force for almost nine years—time enough to
measure the effects. There have since been two studies published by thinktanks on the
impacts of the Portuguese policy (Hughes and Stevens 2007; Greenwald 2009), but so
far, no reports on it have appeared in English peer-reviewed journals. The authors of this
current paper have both had the good fortune to be involved in examining this reform
for a number of years. In this article, we aim:
(1) to describe the Portuguese reform;
(2) to provide an overview of the health and criminal justice impacts;
(3) to discuss the contribution of this reform and this research to the existing state of
knowledge on decriminalization.
The Portuguese Decriminalization and Drug Action Plan
Portugal’s location on the south-western border of Europe makes it a gateway for drug
trafficking. It is a transit nation for trafficking of cocaine from Brazil and Mexico, heroin
from Spain, hashish from Morocco and liamba (the local word for herbal cannabis)
from Southern Africa. Across drug types, it is estimated that 77 per cent of drugs seized
in Portugal are destined for the external market (i.e. other European countries) (In-
stitute for Drugs and Drug Addiction 2008). The two biggest challenges are cocaine
and hashish. For example, the United Nations Office on Drugs and Crime (2008) noted
that during 2006, Portugal was responsible for 35 per cent of all cocaine seizures in
Europe, making it second in seizures only to Spain.
Lifetime prevalence of illicit drugs has historically been low in Portugal. In 2001, only
7.8 per cent of 15–64-year-olds in Portugal had ever used an illicit drug (Balsa
et al.
2004).
In contrast, the British Crime Survey reported that in 2001/02, 34 per cent of 16–59-year-
olds in the United Kingdom had used an illicit drug (Aust
et al.
2002). However, there
was in the late 1980s and 1990s a significant population of intravenous heroin users, who
obtained their drugs through open-air drug markets that became notorious. Rates of
infectious diseases including HIV, AIDS, Tuberculosis, Hepatitis B and C soared. For
example, between 1990 and 1997, the number of known drug users living with AIDS
increased from 47 to 590 (Instituto da Droga e da Toxicodependeˆncia 2004
b
). By
1999, Portugal had the highest rate of drug-related AIDS in the European Union
and the second highest prevalence of HIV amongst injecting drug users (EMCDDA
2000). Drug-related deaths had increased in Portugal to a peak of 369 in 1999 (an in-
crease of 57 per cent since 1997) (Instituto Portugueˆs da Droga e da Toxicodependeˆncia
2000). There was also growing concern over the social exclusion and marginalization of
drug users, and a perception from many areas of society including the law enforcement
1
Possession for the purposes of supply remains a criminal offence.
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and health sectors that the criminalization of drug use was increasingly part of the prob-
lem, not the solution (Hughes 2006).
It was within this context
2
that a government-appointed expert commission proposed
to decriminalize illicit drugs for personal use and to introduce Portugal’s first national
drug strategy, which had the explicit goal of providing a more comprehensive and ev-
idence-informed approach to drug use (Comissa
̃
o para a Estrate ́gia Nacional de Com-
bate a` Droga 1998). The legislative reform and new national drug strategy were seen as
critically linked: the decriminalization sought to provide a more humane legal frame-
work, and by expanding policies and resources across the areas of prevention, harm
reduction, treatment, social reintegration and supply reduction, the strategy sought
to open up new ways for the field to respond, such as through channelling minor drug
offenders through to the drug treatment system. Both sets of recommendations were
adopted almost in full (for full details, see Hughes 2006) and Portugal commenced their
ambitious reform by rolling out the national strategy and expanded resources in May
1999. Subsequently, on 1 July 2001, the decriminalization entered into force.
Prior to the 2001 reform, drug possession, acquisition and cultivation when for per-
sonal use were criminal offences punishable with up to 1 year’s imprisonment (Decreto-
Lei no.
°
15/93, de 22 de janeiro 1993).
3
But with the introduction of Law 30/2000, drug
possession and acquisition became a public order or administrative offence (Lei n.
°
30/
2000, de 29 de novembro 2000). The new offences are sanctioned through specially
devised Commissions for the Dissuasion of Drug Addiction (CDTs).
The CDTs are regional panels made up of three people, including lawyers, social work-
ers and medical professionals. Alleged offenders are referred by the police to the CDTs,
who then discuss with the offender the motivations for and circumstances surrounding
their offence and are able to provide a range of sanctions, including community service,
fines, suspensions on professional licenses and bans on attending designated places.
However, their primary aim is to dissuade drug use and to encourage dependent drug
users into treatment. Towards this end, they determine whether individuals are depen-
dent or not. For dependent users, they can recommend that a person enters a treatment
or education programme instead of receiving a sanction. For non-dependent users, they
can order a provisional suspension of proceedings, attendance at a police station, psy-
chological or educational service, or impose a fine. The panel members of the CDTs are
supported by staff employed by the Instituto da Droga e da Toxicodependeˆncia (IDT,
the Institute for Drugs and Drug Addiction), the central government agency on drugs.
The new law applies to use/possession of all illicit drugs—including cannabis, heroin
and cocaine—but it is restricted to use/possession of up to ten days’ worth of a drug.
This amounts in practice to 0.1 g heroin, 0.1 g ecstasy, 0.1 g amphetamines, 0.2 g cocaine
or 2.5 g cannabis (Decreto-Lei n.
°
15/93, de 22 de janeiro 1993; Portaria n.
°
94/96, de 26
de Marc
x
o 1996). Individuals found with more than this quantity will be charged and
referred to the courts, where they may face charges for trafficking or trafficking/con-
sumption (where the offender is found in possession of more than the consumer
amount, but deemed to have obtained plants, substances or preparations for personal
use only) (Decreto-Lei n.
°
15/93, de 22 de janeiro 1993).
2
The process of reform is inevitably complex. A full description of the context, drivers and initial impressions can be found in
Hughes (2006).
3
In practice, it was rare that people were imprisoned for drug use/possession alone, but criminal convictions were the norm.
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Following internal and external evaluations in 2004 (Instituto da Droga e da Toxico-
dependeˆncia 2004
a
; Instituto Nacional de Administrac
x
a
̃
o 2004), the decriminalization
and the strategy have been extended. The current strategy, entitled ‘A National Plan
Against Drugs and Drug Addiction’, is set to continue until 2012 (Instituto da Droga
e da Toxicodependeˆncia 2005).
Methods
For this analysis of the effects of the Portuguese policy, we have carried out a thorough
review of all the available Portuguese evaluative documents, including the annual na-
tional reports of the IDT from 1998 to 2008 and the internal and external evaluations
that they have carried out and commissioned. To supplement these data, we carried out
interviews with 13 key informants in late 2007 and late 2009. The key informants were
sampled purposively in order to canvass the key areas of health and criminal justice as
well as politicians, bureaucrats from the IDT and non-government advocates. The
final sample included the head of the Institute for Drugs and Drug Addiction, IDT mem-
bers involved in research and overseeing the CDTs, plus representatives of the non-
governmental AIDS and drug-user organizations, politicians from the left and right
wings (Populist Party and Social Democratic Party), academics and representatives of
the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). While
no member of the criminal justice system was willing/able to take part, one stakeholder
was a former police officer and another an overseer of CDT implementation; both were
able to comment on criminal justice-related issues. Semi-structured interviews were con-
ducted with key informants in English or Portuguese (with the aid of a fluent translator).
Interviews lasted 45–90 minutes and covered the health, social and criminal justice
impacts from the reform and perceived strengths and failings from the reform.
Analysis of policies and their impacts in foreign countries pose a number of unique
challenges for authors in obtaining access to data and subjects and in the interpretation
of the results. For example, Nelken (2009) has argued that one particular risk is of eth-
nocentrism over definitions of key terms and policy rationales. This work built on prior
research into the process and impacts of the Portuguese decriminalization that was car-
ried out by Hughes (2006) between 2002 and 2006. During this process, the primary
author had become proficient in reading and speaking Portuguese and collaborated
with the IDT. Research for the existing research also utilized the support and feedback
from those based in the IDT. These measures should reduce the risk of external bias.
There are several limitations to these methods. The most important for any evaluation
of national drug policy is the absence of a control comparison; there is no counter-
factual Portugal, which did not decriminalize drugs in 2001. One way of countering this
is by comparing trends from the chosen nation (Portugal) with that of nations that did
not undertake the reform. We have therefore used annual data reported to the
EMCDDA to analyse Portuguese trends in light of trends from neighbouring Spain
and/or Italy, subject to data availability. The comparators fall into the same geographic
region, thereby allowing for the detection of regional trends. Moreover, while Italy and
Spain have adopted similar drug policies, namely by introducing administrative sanc-
tions for drug use in 1990 and 1992, respectively (for an overview, see EMCDDA
2005), neither country implemented any radical overhauls during the period of study
(Reitox National Focal Point 2008; EMCDDA 2009
a
).
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Further limitations were that the impacts of decriminalization—particularly the
actions of the CDTs—were also contingent upon the operation of a number of other
organizations, including the police and drug treatment services. Moreover, implemen-
tation of the national plan and decriminalization has not been constant. While this was
attributable in part to learning and adaptation, unforeseen issues also arose. For key
informants, the biggest challenge in understanding the long-term effects of the reform
has been a series of decisions to not replace core CDT staff if they retired. This meant
that at times between 2005 and 2008, up to 38 per cent of the CDTs, including the most
frequented CDT in Lisbon, were non-operational.
4
There are additional challenges relating to data availability and interpretation. Drug
use, market changes and drug-related crime is notoriously hard to measure by any
means. Our qualitative research also has limitations. The sample size was not large
enough to reach data saturation and neither were we able to interview police or criminal
justice representatives. Our intention is not to present the interview data as reflecting
the full range of public, professional and political opinion, but to use it to supplement
and interrogate the data collected from the national documentation.
All these challenges make it impossible to attribute any changes in drug use or related
harm directly to the fact or form of the Portuguese decriminalization. However, we can
test the hypotheses from some politicians and academics (cited above) that decriminal-
ization necessarily leads to increases in drug use and related harms.
Implementation of the Decriminalization
Since 2002, the CDTs have initiated about 6,000 administrative processes against drug
users per year, with the number trending upwards to 6,543 processes in 2008 (Instituto
da Droga e da Toxicodependeˆncia 2009). Based on estimates of current demand (see
latter sections), this represents approximately 2.5 per cent drug users in Portugal.
5
Most
of the referred drug users are male (94 per cent) and between the ages of 16–24 (47 per
cent) and 25–34 (31 per cent).
The number of processes that have been decided upon or ‘finalized’ decreased be-
tween 2003 and 2006, which meant there was an overall decline in the proportion of
cases in which drug users received an administrative sanction from the CDTs (from
75 per cent in 2003 to 48 per cent in 2006). While this trend has been reversed in recent
years, it has decreased the capacity to sanction or refer drug users to treatment. The
decline in finalized processes was linked to the reduction in operational CDTs (Instituto
da Droga e da Toxicodependeˆncia 2009). As of mid 2008, all CDTs, with the exception of
Vila Real, were back in operation.
Since 2001, most cases have involved only use—acquisition or possession of cannabis
or heroin. The proportion involving heroin decreased from 33 per cent in 2001 to 14 per
cent in 2006 (and remains at 13 per cent in 2008) (Instituto da Droga e da Toxicode-
pendeˆncia 2009). Conversely, the proportion involving cannabis increased from 53 per
4
There are differences of opinion as to what caused this process, including political motivations and a recession, but the end result
is that many offenders received no ‘formal’ action, whether by way of sanction or referral for treatment.
5
The 2007 data estimated 3.7 per cent population aged 15–64 used any illicit drug in the last year (Balsa
et al.
2007) = approx-
imately 261,968 people. This estimate is similar to other estimates of CJS intervention, which vary between 1 and 3 per cent (see, e.g.
Lenton 2000).
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cent in 2001 to 70 per cent in 2006, decreasing to 64 per cent in 2008. These reflect
trends in drug use, particularly a decline in heroin use (see below). The major sanction
used by the CDTs has been the provisional suspension of proceedings for individuals
who are deemed non-dependent on illicit drugs. These have been used in 59–68 per
cent of cases per year. Perhaps due to the decline in offenders being seen for heroin,
the use of provisional sanctions with treatment (for dependent individuals) has de-
creased since the first full year of operation (31 per cent in 2002) and made up only
18 per cent of sanctions in 2008. Conversely, the use of punitive sanctions such as warn-
ings, bans on attending designated places or requirements to visit the CDTs has in-
creased (from 3 per cent in 2002 to 15 per cent in 2008). This has been attributed
in part to the lack of appropriate treatment options in Portugal to which to refer
non-heroin dependent drug users.
6
According to the stakeholders that we interviewed, the CDTs provided a number of
advantages, including: earlier intervention for drug users by a specialist panel of experts;
the provision of a broader range of responses; increased emphasis on prevention for
occasional users; and increased provision of treatment and harm-reduction services
for experienced and dependent users. While these advantages were often dependent
upon the conjoint increase in collaboration and expansion of treatment places, decrim-
inalization was deemed to have played a vital role. But, due to the problems cited above,
namely the lack of full staff in all CDTs and the lack of appropriate interventions to
which to refer young and occasional drug users, stakeholders said the full potential
of the reform had not been reached.
There are few data on which to assess the long-term impacts of the CDT process. For
example, while it is known that only 5–6 per cent of offenders have been referred to
a CDT twice in any one year, figures have not yet been collected on prior or subsequent
offending and drug use amongst those referred through the CDTs. The IDTreported in
September 2009 that it now plans to start collecting such data. Other data can neverthe-
less be used to test health, criminal justice and social impacts on the broader population.
Trends Associated with the Decriminalization
Reported drug use in general population and specific sub-groups
The most controversial impact of the Portuguese decriminalization has been in regards
to drug use. Key stakeholders in Portugal were in general agreement that there has been
small to moderate increases in overall reported drug use among adults. Yet, there were
differences as opinion regarding three issues, namely whether the reported increase is:
real, significant/concerning and attributable to the reform.
Critics have argued that the decriminalization had led to a perception of acceptability
of illicit drug use and
caused
an increase in illicit drug use, particularly cannabis. Yet,
supporters have argued that apparent increases are largely spurious. They may reflect
increased
reporting
of use due to a reduction in the stigma associated with drug use. They
may also reflect broader international or regional trends in drug use and hence not be
specifically attributable to the Portuguese reform. The final and most complex part of
6
Best-practice evidence suggests that the most effective treatment response for cannabis-dependent users is a ‘brief intervention’
involving six sessions of cognitive behavioural therapy, yet this is not currently provided in Portugal (see, e.g. Copeland
et al.
2001).
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