Tough penalties and punishment of people who use drugs have long been the principle responses while dealing with drug-related offences. As a result, at least one million people are serving sentences for drug-related offenses out of approximately 10 million incarcerated people worldwide; 83 percent of these offenses were related to drug possession.

One of the major reasons for severe punishment has been the belief that this would reduce the use of illicit drugs. This, however, has been proven wrong. The dismal results of “the war on drugs” and multiple research suggests that punishment has a limited impact on reducing illicit drug use or drug-related crime.  Despite the huge costs of policing (an estimated US$100 billion annually), during “the war on drugs,” initiated by President Richard Nixon in the USA in 1971, drug production and use continued to grow across the world. According to UNODC, the prevalence of illicit drug use among people aged 15–64 increased from 203 million in 2008 to 247 million in 2015.

A study commissioned by the World Health Organization (WHO) concluded that the prevalence of drug use was not directly associated with harsher enforcement measures: the prevalence of illicit substance use in countries implementing strict drug legislation was no less than in countries with a more liberal approach.  In its report to the government, the UK Home Office concluded that there was no evident relationship between the severity of punishment for drug offenses and the scale of drug use in the countries reviewed.

Moreover, the imprisonment of drug users has lead to severe negative consequences that worsen the already complicated lives of drug-dependent individuals. The prison environment creates stigma and a criminal identity, which reinforces their social exclusion and deteriorates their social skills.

The rates of relapse to drug use, drug overdose, and recidivism among drug-dependent individuals are high after they are released from prison, especially if there are no linkages to community services and no continuum of care. UNODC indicates that up to 90% of individuals who served prison terms for drug-related offenses resumed drug use within a year following release if no effective treatment was provided. A study in Georgia has concluded that 100% of individuals who were punished (fined or imprisoned) for simple drug use resumed drug consumption within 11 months following the punishment. International research has shown that during the first two weeks after release, the risk of death among former inmates was 12.7 times higher than among other residents, with a markedly higher relative risk of death from drug overdose.

Punitive measures in most cases end up violating the basic human rights and increase the risk of transmission of infectious diseases, such as HIV, hepatitis, and tuberculosis.

Alternatives to coercive sanctions

Some countries have introduced alternatives for imprisonment for drug-related offenses, such as fines, suspended sentencing, probation, disciplinary works, and others.

Compulsory treatment measures are used to keep drug offenders outside of the penal system, supposedly for their treatment or rehabilitation. However, they are not an alternative but an addition to the large-scale use of imprisonment as part of the criminal justice system based on the prohibition approach. Thousands of people are kept in compulsory treatment centers in China, Vietnam, and Cambodia without access to any scientifically proven treatment methods.

Other alternative measures to incarceration, such as driver license suspension, along with a ban on occupying certain positions, engaging in certain activities, are often preceded by registering with a state-run drug treatment clinic and, therefore, entail even greater infringement of the rights of those who want to receive help with their addiction.

Though fines present an alternative to prison, however, drug users do not usually have the means to pay the required amount because they live below the poverty line. The penalization of drug use becomes one more issue in the criminalization of poverty when low-income people are burdened with inadequately high fines and fees for minor offenses and experience devastating consequences, including incarceration, when they are unable to pay. That, in turn, affects their future employability and financial stability.

Within the criminal justice system that facilitate treatment and care of people with drug dependency as an alternative to conviction or punishment, drug courts, aftercare of sentenced prisoners, police diversion, and other programs have been used with varying levels of success.

There are currently more than 2 000 drug courts operating in the USA. Programs also operate in Australia, Canada, United Kingdom and New Zealand. Through this system, a drug dependent person usually gets a referral for treatment in programs controlled by the criminal justice system. However, often drug courts insist on abstinence — depriving them of access to substitution treatment and thereby endangering their health — and conduct regular drug testing. As a result, those who fail the test are often incarcerated.

Diversion has a major role to play as an alternative to imprisonment. Authorities recognize that many offenders who violate drug laws commit their crimes because of drug use. Treating offenders for addiction is more effective than processing and eventually punishing them through the criminal justice system.

Interacting with the health-care system, the diversion away from the criminal justice system can occur at numerous points before, during or after an arrest or detention. Police officers may refer an arrested person on drug-related charges to education, assessment or treatment.

For example, the Law Enforcement Assisted Diversion (LEAD) program in Washington state (USA) was established in 2011 as a means of diverting those suspected of low-level criminal activity involving drugs and prostitution to case management and other supportive services instead of jail and prosecution. The primary aim of the LEAD program is to reduce criminal recidivism. Across nearly all outcomes, researchers observed statistically significant reductions for the LEAD group compared to the control group in average yearly use of the criminal justice and legal system and the associated costs. Compared to the control group, LEAD program participants had 1.4 fewer jail bookings on average per year after entering the program and spent 39 fewer days in jail per year. Read more about law enforcement and drug policy.

Even though the above-mentioned alternatives may be considered a step towards a more socially oriented justice system that considers the needs of people who use drugs, they do not reduce drug use or criminal behavior, and constitute punishment, which is not effective in treating diseases or providing social support.

There is growing recognition that drug use should be treated as a public health rather than a criminal justice problem. Alternatives to coercive sanctions, an important part of drug policy reform, partially or fully replace punishment for drug use with public health measures, such as treatment and rehabilitation, as well as education, care, and social reintegration.

There is a long list of social and health services aimed at eliminating or reducing the risk the behaviour of people who use drugs may pose to public health and safety. These services include harm reduction programs, drug addiction treatment, including opioid substitution therapy (OST) and rehabilitation, employment programs, and access to education for socially vulnerable groups. In practice, these alternatives range from syringe exchange to methadone treatment, and the supervised drug injection sites, such as in Vancouver, Canada, where people who use drugs can access health services. All these alternative models of treatment, education, and resocialization are being successfully carried out and have proved effective in different socio-economic and cultural contexts.

A number of countries have chosen to abolish punishment for use and possession of drugs without intent to sell altogether — i.e. they have carried out the so-called decriminalization.

The European Monitoring Centre for Drugs and Drug Addiction defines it as “an alternative to conviction that is usually a punishment.” Sometimes, states may decriminalize partially, by downgrading a substance to a less dangerous status compared to others, or by decriminalizing possession but still considering trafficking an offence.

To date, about thirty countries have reformed their drug policies to permit some form of decriminalization. For example, in 2001, Portugal (read more) abolished criminal penalties for storing all kinds of drugs for personal consumption and directed its drug policy towards health care. Ecuador decriminalized possession for personal use in 1990, and in 2008 released many low-level drug traffickers from prison. In 2009, the Czech Republic (read more) abolished criminal penalties for possession of drugs for personal use.

Sometimes decriminalization is also applied to drug distribution. For example, in the Netherlands the use, possession, and sale of a limited amount of cannabis were decriminalized in 1976. Although the sale of “soft drugs” is still a criminal offense, coffee shop owners are nor pursued for the violation. However, the sale of cannabis to minors, advertising, and the sale of more than 5 grams of cannabis is banned. Contrary to popular belief, cannabis is not legalized in the Netherlands.

Countries where people with substance dependence were treated like patients in need of treatment, as opposed to criminals who should be punished, showed highly positive results in reducing the crime rate, improving health, and overcoming drug dependence. It increases quality of life and self-efficacy, and improves family function and employment.

Scientific evidence proves that treatment of drug dependence is more cost-effective than incarceration for addressing the problem of substance use and dependence. Treatment is seven times more cost-effective in reducing cocaine consumption than the best supply control program, and could cut consumption by a third if it were extended to all heavy users.

There has been wide and overwhelming support from United Nations agencies and other international bodies in favor of evidence-based public health-oriented strategies to deal with substance use and dependence. Read more about this

Governments should consider reviewing their policy and legislation and adopt strategies and approaches that are consistent with the best available evidence and are based on respect for human rights. These would at least include the following:

• Ensure that national policies, legislation, and enforcement practices are consistent with up-to-date scientific evidence and conform to international human rights obligations.
• Remove criminal sanctions for controlled substance use and possession for personal use, and implement widely when necessary alternative measures for non-violent drug law offenders.
• Meaningfully involve members of the affected communities in developing, implementing, monitoring, and evaluating services and policies that affect their health and lives.
• Implement and scale up effective drug-related services, including a comprehensive harm reduction package of interventions for HIV among people who inject drugs.