Special event – Alternatives to imprisonment and proportionate responses to drug offences

Yury Fedotov, UNODC. My special thanks to Member States, civil society and UN partners in organizing this important event. I also welcome the many distinguished speakers who are with us today.

In the discussions leading to next month’s General Assembly special session on the world drug problem, we have seen a growing emphasis on the need for balanced and comprehensive approaches that put people and health at the centre of policies.

The discussions have highlighted the fact that the three international drug control conventions are founded on concern for the health and welfare of humankind, and that a balanced approach necessitates applying the principle of proportionality to drug-related offences and offenders.

Disproportionate responses do not serve the cause of justice, nor help to uphold the rule of law. In this regard, the application of the death penalty to drug-related offences has never been in the letter or the spirit of the conventions. The conventions further allow States Parties to provide, in appropriate cases of a minor nature, for example possession or purchase of drugs for personal consumption, alternatives to conviction or punishment, using such measures as education, rehabilitation and social reintegration. This can help to address prison overcrowding, and potentially prevent the recruitment of vulnerable individuals in detention by criminals and terrorists.  When the offender is a person with a drug use disorder, treatment and aftercare may also be provided. Many men, women and children with drug use disorders have suffered marginalization and deprivation, and they account for a considerable part of the global prison population.

The focus of today’s side event is therefore much-needed and welcome. People suffering from drug use disorders need comprehensive health and social services that are voluntary, rights-based, accessible, effective and affordable. This requires justice, health and social service actors to work together in close coordination. UNODC’s mandate encompasses justice, the rule of law and health, and based on our research expertise and operational experience, we are supporting Member States to implement such approaches, in accordance with the conventions, and making full use of international standards and norms. These include the UN Standard Minimum Rules for Non-custodial Measures, or “Tokyo Rules”. Furthermore, prisoners should be treated in line with the Nelson Mandela Rules, which include treatment and care for drug dependence or HIV, according to the same standards of health care available in the community. Gender-sensitive measures in line with the Bangkok Rules, that ensure women’s backgrounds and specific needs are considered at all stages, including in decisions on detention or diversion, sentencing or treatment of prisoners, are also essential.

Implementing such approaches can have a decisive impact on the recovery and reintegration of people with drug use disorders, and help promote public health and public safety. UNODC stands ready, as ever, to support Member States in their efforts. I look forward to an interesting discussion with our panellists today on this timely topic.

Werner Sipp, INCB. The Board recognizes that drug abuse and dependency is a disease. It supports humane and proportionate responses. States have discretion to implement aspects of the conventions, including to limit possession of drugs for medical and scientific purposes. Possession of drugs for any purpose other than medical and scientific is inconsistent with the conventions. This is non-derogable. In regard to more serious offences, States have some flexibility and should ensure adequate punishment, while minor offences should not be subject to harsh punishment.  The conventions are explicit that notwithstanding that state parties can provide as an alternative or addition to conviction and punishment, treatment and other measures including reintegration for people who use drugs. States can adopt non-punitive measures for drug use, or lesser punishment, and there is no need to amend the conventions in this regard. A plurality of approaches can co-exist within flexible framework provided by the conventions. The Board will continue to advocate for balanced, proportionate responses to drug crimes.

Marie-Paule Kieny, WHO. There is strong evidence that sometimes incarceration worsens drug dependence, exarcerbates transmission of diseases such as HIV. This happens too often despite the international conventions not requiring incarceration for minor drug offences, as we just heard, and where treatment is required. In a study of access to methadone in prison showed positive results in terms of decreased rates of relapse into heroin use after release. In spite of this evidence, many member states are not making effective use of treatment to reduce drug dependence. Why? Because it requires coordination between health and criminal justice systems, a difficulty particularly in low income countries. With UNGASS looming, clear momentum is building. Keeping business as usual will not be acceptable. Why? Because it has not worked and will not work in future. We need effective treatment programmes to treat drug dependence and reduce crime, while recognizing the need for quality treatment.

At the highest policy level, governments need to lay out cogent inter-ministerial responses to ensure access to treatment, and the offer of treatment for people who use drugs arrested for minor offences. Prison is not the solution to drug problems. For minor drug crimes, both offender and community at large benefits from proportionate response. I look forward to WHO and UNODC working closer together to tackle this critical issue.

William Brownfield, US Dept of State. There is increased role for public health in global drug policy and serious review of criminal justice approaches to drugs, one element of that review we hope is alternatives to incarceration. Why? Because it is always expensive, generally unnecessary and frequently counter-productive, producing an outcome different from that which the criminal justice system intended when making decision to incarcerate. In October last year, under my President, the Dept of Justice released 6,000 prisoners from federal prisons.

We are exploring options such as court-supervised treatment, drug courts, sentencing reforms such as individual sentencing decisions. There are more ideas out there than we can consider during this entire week. (To Fedotov) my Dept of State is willing to support, including with resources as a donor programme, ideas, and proposals that produce progress on criminal justice reform and alternatives to incarceration. We are for example today supporting several programmes that help governments develop Mandela Rules – minimum rules for prisoners. A previous Director of White House office of drug control policy said, we cannot incarcerate our way of our drug problem. We need reform, but smart reform if we are to retain the understanding of our communities and people. How? I suggest we talk to one another, we have more meetings like this. We share experiences on what has worked and what has not worked. We learn from our experience. May I close with one experience already learned, when I speak about alternatives to incarceration, I am not speaking about a particular class of incarcerated people, these are members of transnational operations who traffic in and out using blood and profit as their business model.

Oliver Robertson, CSTF. My presentation is a summary of CSTF recommendations on criminal justice, this is considered, collective voice of CS on this issue. The critical issues include mandatory pre-trial detention, pleading guilty under threat. Mandatory sentencing is an ineffective tool. Long prison sentences whether mandatory or not is ineffective too. While decriminalization can solve many of these problems, when done badly it can lead to equally abusive forms of detention. On drugs and health, there should be access to dependence treatment and OST in detention, with requirement of informed consent. With previous caveat on decriminalization, we still think that decriminalization of use and possession for personal possession is of benefit, to increase access to healthcare. We recommend non-custodial measures, to reduce prison overcrowding and overburdening of criminal justice systems. Proportionate sentencing is and should be considered a human rights issue. On human rights, the death penalty is also an issue – a strong, unanimous position from the CSTF that the death penalty is never appropriate. On children, there is a need to look at multiple issues including the parents of children. Mandatory minimum sentences and sentencing is not consistent with achieving the best interests of the child, nor when applied to their parents. Guidance and standards on the use of non-custodial measures is already agreed under the Tokyo Rules, and the need for gender-sensitive rules is under the Bangkok Rules.  The need for legal representation and access to legal aid is also reflected in international standards and rules.

John Brandolino, Office of Treaty Affairs, UNODC. the text of 1961 and 1971 conventions provide minimal guidance on establishing penalties for drug-related offences. During negotiations of 1988 conventions, member states tried to provide guidance on this topic without undermining the previous conventions. The 1988 convention applies a concept of alternatives to conviction and punishment. It delieneates between 2 types of conduct. The first to production, offering for sale, distribution, delivery and transport, export etc. The second to possession, purchase and cultivation of drugs for personal consumption. For first category, parties need to take account of grave nature of offences, including rehabilitation. For second category, alternatives to convictions and punishment may apply, including treatment, reintegration. For both categories, the convention says that parties may also, in appropriate cases of a minor nature, provide as alternatives, treatment, aftercare, reintegration.

Aldo Lale-Demoz, UNODC. Protecting the health and welfare is fundamental objective of conventions, but international community has also developed norms and standards to provide alternatives to conviction and punishment. The rights of people to highest attainable standard of health is related to this topic. The right to health should not depend on legal status of person. We should consider people who are dependent on drugs as patients. People who develop dependence have usually been through range of adverse life events, and have experienced stigma etc early on in life. They need to have easy access to evidence-based treatment, healthcare and social services. Alternatives to punishment must therefore be established. Countries have developed measures to divert people away from the criminal justice system towards treatment but with a problem being the lack of treatment services.

Imprisonment of people for non-medical drug use should be avoided, as it exposes them to other health risks such as HIV and viral hepatitis. Fear of it leads to decreased access to health services such as ARV, NSP. Incarceration interrupts treatment programmes. We need to work to end AIDS.

We encourage MS to use resources such as Tokyo Rules and Bangkok Rules when developing alternatives to conviction or punishment. Effective drug treatment must also be provided. Comprehensive strategies in prisons will enhance health outcomes, including overdose prevention. Implementation of effective strategies for treatment and care requires close cooperation between health and justice system. So it is with pleasure that today we are launching programme with WHO looking at how treatment is applied as an alternative to prison. We wish to subject them to expert consultation and review. This can help with the development and implementation of appropriate and suitable alternatives.

I draw your attention to a concept note on this new joint initiative that is part of a broader UNODC-WHO programme on drug dependence treatment and care.

Chloe Dunnett, UK Home Office. Proportionality is a strong element of an evidence-based drug policy. It requires each response to be based on the facts of an individual case. I wish to highlight a resolution on proportionality, and urge you all to support it. UK is committed to delivering a smart criminal justice approach. We have delivered comprehensive reforms to justice system. In England and Wales, polices have reformed their tactics to give a renewed focus to community policing. We have a range of alternatives to incarceration, and most minor offences are dealt with outside the prison system. We are delivering significant prison reform, to ensure that people who need drug dependence treatment get it. On possession, we think there is a false dichotomy. Decriminalisation is not a one size fits all approach and don’t believe is it appropriate for all countries. Criminalising possession can help with addressing drug-related problems, and when well-targeted.

Sentencing guidelines are one part of our proportionate approach. There are no mandatory minimums. There are a range of sentences available for judges, and depend various factors to ensure fair sentencing depending on individual circumstances of case. A guilty plea can also lead to a reduced sentence where there is cooperation with law enforcement.

We have robust public interest mechanisms in place to reduce harms relating to drug use, eg. NSP are protected from prosecution. I wish to highlight two examples. In the first one an individual is convicted with intent to supply, the judge will consider the harm caused by considering the type and quantity of substance, and the role of the offender (eg. whether significant or lesser role). The individual here seems to play a serious role given leadership of a network and using young people to deliver drugs, and may be given a higher sentence of 10 years. In second example, I wish to highlight mitigating factors, where individual is convicted of supply of 20 ecstasy tables and has unmet drug addiction and mental health issues. The individual plays a lesser role (a micro trafficker) because of the type and quantity of drugs, and with mitigating factors of mental health and drug treatment needs, will receive a lesser sentence. We will continue to seek to highlight these approaches at UNGASS. I look forward to hearing your experiences and ensure we are taking appropriate action to ensure everyone can live their lives free from drugs.

Colombia. In 2008 to 2009, OAS estimated that everyday about 200 people end up in prison for drug related crimes. Since then, this rate has increased partly because of disproportionate sentences. The overloaded prison situation in Latin America is because of disproportionate penalties. The weak links in drug supply chain suffer most. There are easier to prosecute but this doesn’t contribute to effective responses to drugs. Growers are also filling prisons. There are also Colombians around the world in prison for long sentences or on death row for offences. 18 are sentenced to capital punishment and 125 are serving a life sentence. This isn’t proportionate at all. Numbers of incarcerated women has doubled from 2006 to 2011. As indicated in report by UN High Commission for Human Rights, incarceration also poses increased health risks for people who use drugs. The use of forced labor in response to drug use is also a problem. In terms of growers, it is difficult to abandon cultivation. We have to look at the drug issue as one of development and not just targeting vulnerable people. Colombia has an agenda of promoting a proportionate approaches for users and growers that have found themselves in peril because of their illicit activities. There is criticism from other countries who see this as not fulfilling international obligations. I want to address this myth. Prosecution and punishment should be against those who are in organized networks, and part of corruption. With lower prosecution of violent crime, where finances of organized crime could be affected, of all those in prison for drug offences, only one is incarcerated for money laundering. This is a costly exercise, and doing the same thing over and over and expecting different results. For those who insist on law enforcement as main approach against drugs, we should consider prioritizing development, health and human rights, and offer help to those in a vulnerable position.

Joao Goulao, Portugal. I will stick to story of decriminalization in Portugal. I want to explain how we reached that solution in 2001. Most of you already know that the problems related to drug use in Portugal exploded much later than in other European countries. It led us to an epidemic of heroin use. We are roughly 10 million inhabitants and we reached the amazing number of 100,000 people hooked on heroin, 1% of our population. Even if we started offering responses in terms of health, things didn’t seem to respond. It was complicated with rise of AIDS problems. It was a major social and health problem that led us to seeking a strategy to deal with the problem. We were dealing with health responses in coordinated way but felt need of having clear orientation, eg. implementing methadone. At technical level, we didn’t reach consensus of using methadone, so it was decided by government to put together a panel of people from different areas (eg. psychologists, judges) to report on national situation and to develop some proposals. We realized we were dealing mainly with chronic relapsing diseases, and needed to deal with it as a health and not crime issue. The government agreed and asked us to implement it within spirit of conventions. I believe we went as far as possible within prohibitionist paradigm, because we decriminalized all types of drugs not just the light ones. The set of proposals in terms of treatment, harm reduction and prevention was adopted by government in 1999, but proposal for decriminalization had to be discussed in parliament which happened in 2000. Idea of decriminalization was widely accepted by public, perhaps because the problem with drug use was seen in all social groups. So there was good social acceptance of the idea. Those who opposed the idea said that Portugal would become a paradise for those who wanted to use drugs, and that children would start using drugs. But 15 years later this hasn’t happened. Law enforcement could also operate more efficiently, by not having to expend a lot of resources on targeting users. Possession of drug use is still illegal but not a crime and subject to administrative penalties only. I liken this to rules requiring drivers and passengers to wear a seatbelt, if you don’t it is not a crime and you don’t go to prison.

Carson Fox, National Association of Drug Court Professionals. Drug courts  (DC) are often misunderstood so I will talk about how they work and why we have them. In Miami in 1980s, people working in justice and treatment system: the same people coming into the system over and over again, even inter-generational drug use. They decided they had to do something different, and created the system we now know as drug courts. DC is an alternative to incarceration, and offer wraparound services including evidence-based drug treatment, housing, aftercare and special attention to issues such as trauma. Who comes into DC? After 25 years of research, DC are not an approach for all offenders. DC work best for most seriously addicted individuals, with long criminal histories who have a poor prognosis in standard treatment. How do we know they work? More research on DC in US than any other justice intervention in our history. The DoJ tracked 25 DC in various states in one study, and other meta studies have been done by independence agencies. They all conclude that DC significantly reduce criminal activity (between 25 and 40%). They save lives, restore victims by including restitution, and save money because they cost less. Some research shows that for every dollar spent, DC saves as much as 25 dollars.

I will tell you a quick story about a young man named John. Within his friends and family he knew a gentleman that was quite ill for over a decade. He knew that there were tremendous amounts of narcotics. When they were aware, John broke into the house and stole a lot of narcotics, cash and other equipment. He had taken some of the narcotics and passed out nearby, and found with the equipment he had stolen. He had a criminal record already, including for theft. John owed restitution to this elderly couple but the laptop and other items he had stolen were ruined. He came into DC, and instead of prison he goes into intensive treatment and gets wraparound services. There are people who regularly monitor John’s progress. He is required to pay the restitution and after 1 year he has graduated from the programme. He has avoided going to prison and received assistance to find employment, along with evidence-based treatment. This is just one story of many individuals.

Questions from the floor:

Mike Trace, IDPC: we should think about how much state resources we are spending on measures such as drug courts. We should consider various models and cost them, this is a complex thing.

Jindrich Voboril, Czech Republic: it is interesting to hear of different models. When we talk of alternatives to imprisonment, we usually talk about heavy or problem drug users. We also have people who are occasional or experimental users, we didn’t touch that, and I think that is an important matter. We often don’t know how to deal with that, and need to due to people using cannabis for example and not every day. These people are not ill, and not addicted. We should deal with this carefully because these people are not a danger for society though they might often possess minor quantities. This issue is often neglected but the public is very interested on how we respond. In response to the UK, you mentioned that decriminalization is one side and prohibition is on the other and there is something in the middle – I can’t see what that could be. An activity is either a criminal offence or not.

Kevin Sabet, Drug Policy Futures: Sometimes a lot of people who use drugs caught up in criminal justice system are often there exclusively for non-drug related crime. That is, their drug use is fueling all sorts of crime, so I worry about how we approach implementation of alternatives. There are crimes such as driving when high and hurting others, that should be punished.

Denise, Open Society Foundations: Drug courts can lead to more criminalization, recriminalisation and even higher rates of incarceration, e.g. if you fail a DC programme you can end up with 6 months in prison. Given UNODC made excellent remarks about need to move towards health-based approach, why are we resorting to criminal justice system with drug courts?

UK: in response to the Czech Republic, by the third way I mean a proportionate response between decriminalization and harsh punishment, e.g. a range of out of court penalties.

Joao Goulao, Portugal: our drug law is from 1993 and applies to any crime related to drugs. A later law only decriminalized drug possession and use for personal purposes. Police forces do still respond to crimes but for people who have drug use problems they can be referred to social and health services.

Oliver Roberston, on behalf of CSTF: for people who do end up in prison, one purpose should be to ensure you never come back again.

Wyatt, US: for people who use drugs but arrested for non-drug related crimes, there should be prosecutorial discretion to divert people away from the criminal justice system. Other options include pre-trial diversion, or other measures for reducing sentences or no imprisonment. Some programmes may start with drug courts but there are also other ways.

Carson Fox, NADCP: there are a lot of misconceptions with drug courts. Only the most seriously addicted and serious offenders enter drug courts.

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