Side event organized by the Canadian HIV/AIDS Legal Network, with the support of Norway, the International Network of People who Use Drugs (INPUD) and UNAIDS
Moderator: Jake Agliata (Policy & Communications Officer, INPUD)
Judy Chang (Executive Director, INPUD): INPUD are the global body representing people who use drugs, and we work to protect the health and defend the rights of our community. We have been adversely impacted by the war on drugs, having our right to health, non-discrimination, and self-determination continually undermined. It can no longer be in any doubt that systemic and fundamental changes are needed. We are seeing the winds of change – one clear example being Norway. Drug decriminalisation models, as we will hear from panelists today, and not the same around the world. A new INPUD report documents the often overlooked, lived impacts of drug policy reforms, which in many cases still continue to perpetrate harms. This is because drug policies and programs continue to be developed without meaningful community involvement. Community-led responses are critical to decriminalisation efforts, as they have always been to harm reduction and more recently as we’ve seen during the COVID-19 response. We commend UNAIDS for placing community leadership as a key pillar within their new five year strategy. And we emphasize the need for funding and political political support to make this vision a reality.
The history of community-led activism and advocacy has not been acknowledged or celebrated enough. In 2020, INPUD produced and published the report ‘Taking Back What’s Ours’, which has documented the history of the movement of people who use drugs. One of the peers interviewed said “It’s time we no longer content ourselves to be invited to others’ tables. It’s time we started inviting them to our table”. So I just want to thank everybody today for coming to our table.
I also want to thank the co-sponsors of this event with us. And, of course, all the participants for joining our discussion on how we can enter a new era where people who use drugs are at the center of advancing legal and policy reforms. I also want to acknowledge the Robert Carr Fund and the Love Alliance (funded by the Dutch Ministry of Foreign Affairs) who prioritize funding critical, life-transforming community-led work. And finally I want to acknowledge Jude Byrne – the founder of INPUD and a fierce community advocate who passed away in March this year. She dedicated her life to shifting power to the community, and I hope this is something that we can all commit to doing.
Annie Madden (PhD Candidate, University of New South Wales, Australia): I was one of two consultants recruited by INPUD to develop the report we are discussing today: entitled Drug Decriminalisation: Progress or Political Red Herring? Assessing the Impact of Current Models of Decriminalisation on People who Use Drugs. Before going any further, I want to acknowledge the co-author Pascal Tanguay, as well as Judy Chang and the participants in the research.
Over the past decade, there have been increasing claims that we are moving towards a critical turning point in international drug policy – with many claiming a ‘new dawn’ and citing recent moves towards decriminalization by now almost 50 countries as evidence of this progress. But, despite several recent reviews on the impacts and outcomes of decriminalization models, none has specifically included the perspective of those most affected by these reforms – which of course is people who use drugs. So it was in this context that INPUD identified the need to conduct a peer-driven research project into the impacts of current decriminalization approaches from the perspectives of people who use drugs. Our two key aims were to bring a critical lens to claims of progress in this space, and to interrogate concerns that reforms are frequently too narrowly focused on cannabis reform alone, or that they simply replace one set of sanctions for another without paying sufficient attention to the issues of injustice, stigma and human rights violations.
This was a peer-to-peer research project. We took a two-stage approach. The first was a literature review, and that identified existing models of decriminalization that are being utilized, the countries and jurisdictions involved, and key aspects of their implementation. And we used this to inform our selection of the focal countries for stage two. Stage two was a series of qualitative interviews, for which we used a purposive sampling approach that ensures balance across different regions, coverage of different models, and a diversity of views. We did a total of eight in-depth qualitative interviews that were at least an hour long (some were considerably longer!), and they were conducted with 12 respondents from countries including Costa Rica (1 person), Estonia (1), Kyrgyzstan (1), the Netherlands (1), Norway (1), Portugal (1), Uruguay (1), and Vietnam (4). The respondents were all working in organizations representing people who use drugs, and the majority of the participants were people who use drugs themselves. We used a framework for the models of decriminalization that are utilised around the world, adapted from a model Hughes et al, in work that they have done for the Irish government. We slightly adapted their model, which has six key models of decriminalisation but we landed on five key models that we based our report around.
The key areas that all respondents were asked to provide their views on were:
- Policing, detention and other sanctions (including threshold amounts, administrative sanctions and fines)
- Stigma and discrimination
- Surveillance and privacy
- Access to health and social care
- Meaningful involvement
- The way forward
Briefly, what we found was that despite some positive impacts on policing and interactions with people who use drugs, decriminalisation measures have not necessarily or consistently translated into better outcomes for people who use drugs. This is largely because the models adopted are not full decriminalisation and they continue to utilise strategies of control and surveillance and/or to pathologise people who use drugs as victims needing treatment and rehabilitation. Many of the decriminalisation approaches continue to be based on arbitrary quantity thresholds that do not recognise the reality of drug use or dependence, with extremely negative outcomes for people who use drugs. Many countries have simply replaced criminal penalties with administrative sanctions. The most common of these are fines – and fines are often too high, and when they’re combined with poverty and other factors they can lead to more, not less, criminalization (including charges, arrest, arbitrary detention, and more incarceration and imprisonment). Whether the punishments imposed on people who use drugs are administrative sanctions or criminal penalties, all participants ultimately agreed there is a need to remove these sanctions completely.
Further findings were that although stigma and discrimination may have decreased in some settings since decriminalisation, once again these outcomes are ultimately being undermined by poorly designed models of decriminalisation. These models have given rise to increased monitoring and surveillance, including the use of routine urine drug testing without consent, to pressure and coerce people who use drugs into decisions and actions. Decriminalization laws and policies have contributed to facilitating access to harm reduction services in some places. However, this is not the case everywhere, and in some countries there was no long-lasting improvement in harm reduction or access to other health and social care services. Despite decriminalisation, there are ongoing problems with drug dependence treatment in many countries, including serious concerns about the continued forced compulsory treatment of people who use drugs in Asia in particular. Finally, it was noted that decriminalisation policies are being designed and implemented with little or no consultation with people who use drugs. Even where consultation has occurred, advice is not always being taken seriously. Participants felt that there was still much to do towards the meaningful involvement of people who use drugs.
We have therefore made five key recommendations.
- That all models of decriminalisation must fully decriminalise people who use drugs. That means removing all administrative sanctions, mechanisms of monitoring and surveillance, coercion and punishment for use and possession of drugs. This includes compulsory detention.
- That people who use drugs and their community organisations must be involved in all stages of the reform process, including the design process and the provision of accessible and credible information to community on any proposed reforms or changes.
- That full decriminalisation must also include specific strategies to end stigma and discrimination among people who drugs, and ensure adequate funding for such interventions.
- That full decriminalisation must include the scale-up and expansion of access to harm reduction and social care for people who use drugs, relevant to the local context and needs.
- Once full decriminalisation is adopted, it should only be as a step on a continuum that has as its clear and ultimate goal the full legal regulation of all drugs in a timely manner.
Richard Elliott (Executive Director, Canadian HIV/AIDS Legal Network): I am going to update on advocacy that is being done by civil society, and developments that have been happening in Canada as we build momentum toward decriminalization. I think the report from INPUD and the points it makes are quite timely and well aligned with what civil society is proposing in the Canadian context. Over the last five year period for which we have detailed data, we have seen more than 470,000 drug arrests made in Canada. According to our analysis, more than 70% of those were cases in which charges were laid for possession for personal consumption. At the same time, we have the worst overdose epidemic in Canada’s history, and that has only exacerbated and intensified calls for changes to policy. There is growing recognition and public support for decriminalisation to at least some degree. Of particular note, the Canadian Association of Chiefs of Police (CACP) released a report in which they recognized that prohibition and the criminalisation of simple possession was not working, and that there was a need for transformative change.
However, there are different conceptions of what decriminalization means, as has been pointed out in the INPUD report. And some of those are, in our view, insufficient and unsatisfactory. The proposal from CACP recognises that criminalization is a problem. However, it proposes to maintain some of the very same problematic provisions that INPUD have just highlighted. While it would remove criminal sanctions for simple possession for personal consumption, it would potentially maintain other kinds of sanctions including fines, and the police would play a role in how decriminalisation would work (diverting people into treatment and other support services). There has also been an important development from the Federal Public Prosecution Service, which is responsible for prosecuting drug offenses in most jurisdictions of the country. They have issued a guideline that prosecutors should only be taking forward prosecutions for simple possession in what they consider to be “the most serious cases” where there are other kinds of concerns at play. And they too would envision to divert cases that they are prosecuting to other alternative measures from the criminal justice system. So these are important recognitions of the fact that criminalisation is causing harm and needs to end. But they’re half measures in response at best.
There is also federal legislation that would embody (if it were to pass) this diversion approach that directs people to be diverted out of the criminal legal system (at least in the case of simple possession charges). From the perspective of civil society, of course including people who use drugs, there are a number of problems as laid out in the INPUD report as to why this continued coercive approach and response to drugs is ultimately insufficient. There are a number of human rights concerns that remain, as it continues the surveillance and control of people who use drugs. As we have seen in Canada and in so many other jurisdictions, there is also a disproportionate impact of criminalisation on some of the most marginalised and racialised people, particularly Black and Indigenous communities and people in Canada, and there’s every reason to think that this would continue under inadequate decriminalisation approaches.
So from the perspective of a loose coalition of organizations, including groups of people who use drugs, in Canada, there is a need for a more robust and fuller definition, understanding and vision of decriminalisation. That includes a number of different features. First and foremost, it requires the removal of all criminal sanctions and all other penalties or coercive interventions in cases of simple possessions of all drugs. And this I think is quite consistent with the recommendations that INPUD has just presented. In particular, there are specific things that must be removed from the operation of the law as part of a full decriminalisation agenda – including an end to: administrative penalties; mandatory health assessments; fines; appearances before ‘Dissuasion Commissions’; the confiscating of people’s substances or paraphernalia; imposing restrictions on people’s travel or contacts; and shifts to ‘drug treatment courts’ as a quasi-coercive alternative to criminal sanctions, or to any other kind of coercive, involuntary treatment (things that are passed off as health measures). It will also be important to automatically expunge previous convictions that people have received for simple possession, or other penalties that might have been attached to simple possession (such as probation orders). And, of course, it will be important to deal with how police are operating on the ground – educating and setting strict rules about when it is that police are having interactions with people in relation to perceived drug offenses. In addition, the resources that are currently devoted to prosecuting people for drug possession charges should be redirected to other kinds of evidence-based health and social services that remain inadequate.
But there is also a question about going beyond simply the decriminalisation of possession – recognising the reality that people for various reasons may share drugs with their friends and acquaintances, or sometimes people will purchase on behalf of others (often to reduce the risk of coming to the attention of police, and all of the negative consequences that can follow). And as we know, it’s not uncommon that some people will be sharing or selling specifically as a means of livelihood, or to support their own use. It is not a good use of public resources, and it is actually quite harmful, to continue to criminalize this kind of activity as well. And so the vision that civil society is developing in Canada is one that includes the decriminalisation of the sharing or selling of limited quantities of substances.
So how might this be achieved? Well there are two ways, in particular, both of which are being pursued. The first is that under the existing federal drug law in Canada , the Minister of Health actually has the authority to exempt any person, or class of persons, from any provision if it is in the public interest. Therefore, there is a call on the Minister of Health endorsed by more than 180 organizations across the country to proactively issue an exemption that would apply nationwide to all people, exempting everyone from prosecution for simple possession under the current law. In the longer term, what’s needed of course is legislative amendments to the Controlled Drugs and Substances Act to remove the criminalisation of simple possession entirely – but also to amend the trafficking provisions to limit the criminalisation of small scale selling and trafficking. In either of these approaches, the question of quantities quickly arises, and I think here the point to make is the importance of decriminalising at the very least the possession of quantities for personal use, and potentially for small scale sharing and selling. The definition of those quantities has to be done carefully and in a rights-compliant way that includes the perspectives of people who use drugs. And that will evolve over time, taking account of the realities of people’s drug use and conditions in the drug market.
Finally, to note, all States Parties to the UN drug control conventions have complete freedom to fully decriminalize simple possession. This proposition was controversial some years ago but it is now widely recognised that this flexibility does in fact exist. Things get a little more complicated when we’re talking about decriminalising small scale sharing or selling. Nonetheless there is still some degree of flexibility, albeit not the same degree as for simple profession. And it is imperative that States including Canada take advantage of that flexibility to the maximum extent, as a step towards a larger discussion about the legal regulation of all substances in the interests of public health, human rights and other considerations.
Torbjørn Brekke (Senior Drug Policy Advisor, Norwegian Ministry of Health and Care Services): I intend to shed light on, not the Norwegian model, but on the conditions under which civil society operates and can make their voices heard to influence policy decisions. Within Nordic countries, we have a long history of strong grassroot movements. NGOs have played a decisive role in forming our welfare system, and many of the first NGOs that received public financial support have tasks related to social security (such as services for the homeless or for people with substance use problems). The organisations develop a closeness to these populations, they are anchored and still act as ears and mouthpieces for these groups. This is highlighted as the characteristics of our democracy model, which is also called the ‘consensus model’ – referring to the mutual interaction between the authorities and civil society organisations. There are several informal and formal forms of contact and arenas, councils, boards and committees that function as dialogues between authorities and these civil society associations at the national, regional and local levels.
This great importance that Norwegian authorities attach to civil society participation is also reflected in Norwegian development aid policy, by stating that an active and independent civil society is a premise for a democratic and sustainable development of society, and that more than 20% of the development aid assistance budget goes to civil society organisations. Moreover, user participation is now a statutory right in Norway, and is not something the services can choose to deal with or not. A relevant example of this is that two out of ten members of the Drug Reform Committee represent people who use drugs. A user in this sense is defined as a person who uses relevant services in one form or another. It’s also meant for people who use drugs, and user participation can take place at the individual service and system level, and is a long term obligation. The municipality shall, for example, ensure that representatives of patients and users are consulted in the design of municipality health and care services. This has been fundamental in the Governor’s project to create a patient’s health service, placing the service receiver in the center under the slogan ‘no decision about me, without me’.
As you already might know, there is an initiative towards decriminalisation in progress in Norway, and the final decision is due in Parliament on the 3rd June this year. Among the actors that have pushed and defined this process, there are definitely representatives from civil society and especially from user organisations. For many years, representatives of people who use drugs were invisible, stigmatised or not heard. During the last decade, however, we have registered a new interest in civil society in general. This development is explained by several factors, and as part of this wave the user organisation have also grown up. One reason for specific groups’ growth was probably the introduction and wide spreading of medically assisted treatment. In the beginning, these groups were formed by some very engaged individuals, and those who advocated for decriminalisation were lonely riders, and more often made fools of rather than taken notice of. Gradually, however, the support for health instead of punishment for use and possession for personal use has gained more and more public acceptance. There are several reasons and motivations behind this national and international movement. What nevertheless is apparent is that the progress in Norway has been accelerated by some very strong and brave voices from user organisations. For people who use drugs, or who have used drugs or are representing the people, the lesson learned is that the interaction between authorities and user organisation, the arrangements for user involvement, and the users’ professionalism, is all pointing the way for further collaboration and developments.
Laurel Sprague (Special Advisor on Community Mobilisation, UNAIDS): I’ve been asked to speak to you today about our new Global AIDS Strategy that was passed by the UNAIDS Programme Coordinating Board on 25th March. The new Global AIDS Strategy is for the years 2021 to 2026, and is titled ‘End Inequalities. End AIDS’. It was developed by the UNAIDS Secretariat and its 11 cosponsors, which includes UNODC. We received input from more than 10,000 stakeholders from 160 countries in the process to develop the strategy. We are grateful to the community of people who use drugs and other community and civil society networks and organisations for the substantial feedback on the strategy that helped to shape its key messages, the goals and the targets. I’d like to draw attention to the targets from the Global AIDS Strategy that are most important for our discussion today. These are that 90% of people who inject drugs have access to comprehensive harm reduction services, integrating linked hepatitis C, HIV and mental health services. And that less than 10% of countries criminalise the possession of small amounts of drugs by 2025 – which is one case where the INPUD report will be particularly useful as we push countries to meet that target, properly. The new Global Strategy also calls to intensify and redouble efforts to scale-up comprehensive harm reduction for people who inject drugs in all settings, including needle and syringe programmes, opiate substitution therapy, naloxone and interventions for alcohol and non-injecting drug use, as well as prevention, diagnosis and treatment of TB, viral hepatitis, community outreach and psychosocial support.
Now let me say we know that globally and in every region we are far behind in reaching these goals. In many places of the world, harm reduction services face legislative and financial barriers for reaching their clients with quality services, even more so when it comes to women and young people who use drugs, and also people who use stimulants. UNAIDS started to actively call for decriminalisation in 2015. Questions on laws and policies that criminalise drug use are part of the Global AIDS Monitoring data from countries that we receive yearly. And we see that the progress with decriminalisation is very slow. The new targets related to decriminalisation are not likely to be achieved unless networks and organisations get recognized as key partners of government in drug policy reform, completely in line with the recommendations from what INPUD has just shared. And unless these networks and organizations obtain substantial resources for their accountability, advocacy and monitoring work, we will not be able to achieve these targets. We have to face the reality that the engagement of the community of people who use drugs meets obstacles because of stigma and enormous levels of criminalisation. In many places, people who use drugs still have to hide their identity and are not allowed to register their organisations. This is a huge barrier to our ability to move forward. UNAIDS commits to supporting the community of people who use drugs in our harm reduction advocacy and drug policy reform efforts. We know this community is a remarkable source of expertise on a wide range of policy and technical questions. And we’re grateful for the opportunities we continue to have to partner with you. For example, in order to monitor the world’s progress toward the decriminalisation target, we will need to work with communities of people who use drugs to define what small quantities are and how to measure the change – not only on the legislative level, but to ensure that this is implemented. We will engage with community experts on these questions. We’re also going to increase our efforts in mobilizing funding for community-led monitoring and advocacy, as well as for community-led harm reduction services. This is also reflected in another target that 80% of service delivery for HIV prevention programs for key populations and services for women are to be delivered by community-led, key population-led, and women-led organizations. I want to assure you that these commitments will be routinely monitored. I look forward to our partnership together as the strategy moves forward from being agreed and published, into reality for people on the ground.
Richard Nininahazwe (Program Coordinator, African Network of People who Use Drugs): I will talk today about the African scan as part of this research and report. [Poor connection]. Africa networks of people who use drugs are beneficiaries of in-country Global Fund grants for harm reduction. Impacts of COVID-19 on people who use drugs include increased gender-based violence due to lockdown, loss of income (as many people who use drugs work in the informal sector), increased mental health issues, increased police harassment, and issues for homeless people who use drugs. A total of USD 50,000 was granted to networks across the African continent (in Burundi, Cameroon, Cote d’Ivoire, Kenya, Mozambique, Tanzania, Rwanda, Uganda, Zanzibar and Zimbabwe). [Connection lost].
Question 1: How can we bring more attention to these issues, particularly in EU countries which have far right governments: Bulgaria, Hungary, Romania, Greece?
Annie Madden: It is natural enough to feel a bit deflated by this sometimes, but actually I think what the INPUD report really shows is just how important it is to start doing your own research to get voices heard and to get these issues out and on the table. The work in Canada is really showing the importance of meaningful involvement of people who use drugs, and partnerships with other civil society groups to really start to build the voice at the table in different ways and in different processes. At the UN level as well, it’s really important that we see this as a starting point, because that was part of the theme for the INPUD research. There’s so much more to be done here, and we’re just scratching the surface – so I think we need to use this as a launching pad. Try to get more conversation going on this whole issue, so when people ask ‘what is decriminalization’, we are clear what is meant when that term is used. Let’s get some clarity, and start talking more about some of the complex issues here.
Torbjørn Brekke: This is a project where the snowball has started to roll. In our experiences, and we have been looking at Portugal, is that once you start to talk about decriminalisation, it is a seen as being a huge step. People are scared about what’s gonna happen next – so I think that every nation needs to be clear about what the experiences elsewhere are, what are the results, will the number of people who use drugs increase, etc. Learn what has been done elsewhere, and use the data. It’s very important for others to know that things didn’t ‘go to hell’.
Question 2: How can UNAIDS really help get a harm reduction programme supported by local communities and within local budgets, particularly in the EECA region, as there’s been a lot of lost faith over the years in funding and availability?
Laurel Sprague: I think at a bigger scale with the Global Strategy that UNAIDS is charged to implement, we do have strong language in there on harm reduction and drug decriminalisation, including the provision of naloxone and including the need for supporting communities. The target is that 80% of harm reduction and other prevention HIV prevention programs for people who use drug should be led by networks of people who use drugs and people who inject drugs. So I think this is a strong advocacy tool, but it’s also a tool for educating governments about what is actually needed if we are going to reach the goals of ending AIDS by 2030. In addition to that, in the Global AIDS Monitoring (GAM) reports that come out, in which the government’s report their progress toward meeting commitments – and this has very clear criteria for what harm reduction services are and what should be offered by governments. So there shouldn’t be any confusion, the information is out there. And UNAIDS is able to offer technical support through the funding we have to remove barriers and blockages in the implementation of Global Fund grants – to work with the governments on harm reduction services and packages that should be offered, and how to best implement and deliver those.
Question 3: Can the panelists speak to the intersections with racial justice – how do you address this in research and conversations with people with lived experience of stigmatization or racial violence?
Richard Elliott: The racism of drug prohibition – as it’s enforced in Canada at least, but not just Canada – is something that people who are involved in drug decriminalisation advocacy here are certainly aware of. It’s a problem on which we have limited data, unfortunately. But the data that we do have about the enforcement and impact of prohibition indicate that criminalisation is a racial injustice, and that therefore, advancing decriminalization needs to be informed by a commitment to racial justice. In the development of the common platform that Canadian civil society has been working on for a number of months, there is also a conscious effort to reach out to Black and Indigenous organizations, in particular, as the populations most affected by prohibition. That obviously needs to continue and it needs to be always brought forward in our advocacy about one of the ways in which criminalisation is really harmful, and one of the very strong arguments for why we need decriminalisation.
At the end of the session, the following video was shown from OHCHR: https://owncloud.unog.ch/s/4lZQxCm8l4YLQz0