by Neil McKeganey and Kathy Gyngell
We would like to respond to Professor Steven's post, for which we thank him, because it raises a number of significant issues. We address these in order below.
1. Not a new orthodoxy?
Any readers of the media of late with an interest in drug policy matters cannot but fail to have noticed the upsurge in articles calling for the liberalization of UK drug laws in the face of what is presented as the failure of our current laws, most often as the 'failed war on drugs'. Decriminalisation for large sections of the media, representing the views of an influential metropolitan liberal elite, does indeed appear to have become the new orthodoxy. Where is the equivalent frequency of media articles calling for the continued criminal penalties for drug use and drug dealing, for more effective implementation of the drug laws, or arguing that drug law is ineffective because it is so ineffectually implemented? But this is a small point in the overall range of points Professor Steven's makes.
2. "It is only necessary for advocates of decriminalisation (to prove?) that it produces no more drug-related harm than criminalisation." (The principle of not being worse is a sufficient one)
This argument is of more concern. It is particularly hard to follow his logic with regard to the case of Portugal. In the past he has said that Portugal cannot be cited as an example of the benefits of decriminalisation because it has failed to provide evidence for the impact of the policy even within Portugal itself. Now he suggests that the Portuguese experience (perhaps because the outcomes are so uncertain) has somehow magically shifted the burden of proof onto the legalisers (the status quo) to show the benefits of the policy they favour. It is difficult to see how the Portuguese experience can be cited as the basis upon which the whole evidence base for criminalisation shifts, whilst, at the same time, describing it as failing to provide evidence at all.
It is even harder to see the logic of why those calling for decriminalization need only show that the level of harm would not be greater than legalization. Where one wonders is that evidence to be found, given that Steven's has already cited that the Portuguese evidence cannot be used for that purpose? He seems to rather want to eat and retain his analytic cake when it comes to Portugal - both noting the limited ability to infer general points about the benefits of decriminalisation and at the same time suggesting that the Portuguese experience has somehow overturned the burden of proof, placing the need for evidence not at the hands of those who want to change the status quo but on those who wish to retain it. This may be a comfortable position for those calling for some form of decriminalisation or legalisation but one might reasonably ask of those who are calling for such a change to actually present the evidence that their policies would not lead to an overall increase in harm. This of course is difficult for the legalisation and decriminalisation lobbies precisely because they simply have to concede that under their policy change the overall level of drug use (and thus corresponding harm) might increase. The Transform (a legalisation lobby) organisation's Blueprint Report concedes that the prevalence of drug use might indeed increase in the event of a regulated drug market being set up though their own predictions in this regard relate only to a relatively short period following such a legal change. That drug use of all ‘classes’ has gone up significantly in Portugal is irrefutable.
3. Selective and misleading statistics
It is easy to return this accusation. That cocaine use has risen steeply in many countries in Europe, with the UK amongst the highest, is not in dispute and noted in Kathy's earlier correspondence. Steven’s main criticism here relates to the data on drug use, murders and seizures. The point we are making is that those who are celebrating the benefits of decriminalisation, citing Portugal in support of their case, are ignoring the other data which would, at the minimum, suggest much greater caution before recommending changes in other countries' drug policies on the basis of the their experience. There may be other interpretations to be placed on the Portuguese seizure, homicide and drug use data but surely it is selective - whether on the part of the legalisers or of those who favour decriminalization - only to cite the data that appears to be supportive of their case. We put into the public domain data not previously cited; we put data into a broader context where this suggested a possibly different explanation and we took trouble to explain disputes over death data and that how the inconsistencies will be resolved is not yet in the public domain.
4. "Making possession of some drugs a criminal offence makes criminals of these young people".
Fourthly Stevens seems both inclined to reject our proposal that the criminal justice data in the UK suggests that cannabis possession has already been decriminalized in effect whilst actually acknowledging that he agrees with us for the most part. It is indeed a strange logic to assume that it is the law that makes people criminal- on the contrary it is the breaking of the law that makes people criminal. It hardly needs saying but acting in accordance with the law does not make one a criminal thus it cannot be the law itself that makes people criminal. It would indeed be absurd to say that it is the law on housebreaking that makes a burglar a criminal. Most people would recognize that it is the breaking of that law, not the law itself, that turns the burglar into a criminal.
5. Higher custodial sentencing in the Netherlands for drug offences.
Fifthly Stevens would rather that we did not report the finding that the Dutch are greater users of imprisonment than is the UK when it comes to criminal justice disposals. Clearly one can speculate for either country about the likely impact of adding into this question the possible impact on the data if the police forces in the respective countries were acting in a different way. The fact remains however that when people are arrested for personal possession offences there is a greater likelihood in the Netherlands of receiving a custodial sentence. Many people will be surprised by that. That this is for offences above 5gms cannabis possession makes the contrast starker.
6. Sweden as a corrective to Portugal
Our citing of Sweden was as a corrective to the apparent obsession with Portugal and to encourage the rather limited wish to look at international evidence that Baroness Meacher seemed to be making. We and no doubt others felt that she might also like to look at the Swedish example and that it might be wiser to do so before enthusing quite so uncritically on the situation in Portugal.
Finally we would add a rather regretful note. It is a shame that a number of those posting in response to our blog have chosen to offer personally abusive comment in preference to considered discussion. Their arguments are hardly furthered by their choice in this regard. This is not of course a comment directed at Prof Stevens’s posting.