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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
999
at Virginia Commonwealth Universtiy on November 10, 2016
http://bjc.oxfordjournals.org/
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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
HUGHES AND STEVENS
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