Rethinking Drug Policy:
Punishment and Sentencing
within the Courts
Dr. Jenni Ward
Middlesex University, UK
j.r.ward@mdx.ac.uk
Introduction
• Paper based on observations in the criminal courts
examining the penalties dispensed for small quantity
drug possession charges
• Situate my research within the within the broader
drug policy debates occurring at the international
and European level that are calling reformdepenalising policies
• Apply a conceptual framework that problematises
the notion of ‘harm’ – whose harm is it?
Current drugs policy debates
• A lively drugs policy debate is currently going on at
international and European levels, and radical change is
occurring in nation states
• The notion that the prohibitionist, law enforcement stance to
drugs has not worked in efforts to deter people from using,
and trading in drugs (Bewley-Taylor et al, 2009) – the ‘War on
Drugs’ has failed!
• A desire for ‘pragmatic’ responses to drugs -harm reduction,
educationalist approaches, rather than penalising ones.
• Contributing voices come from international and national
pressure groups eg. ‘International Drugs Policy Consortium’,
‘Global Commission on Drug Policy’, Global Initiative for Drug
Policy Reform, politicians and political parties
• International Narcotics Control Board (INCB) launch a counteroffensive
• Two general points to the debates:
• 1. Drug-addicted offenders should be diverted
into health and treatment services
• 2. The offence of drug possession for ‘personal
use’ should be depenalised, whatever the
drug category ie. heroin, crack cocaine,
cannabis etc.
A starting point to my research
• A European Monitoring Centre on Drugs and Drugs Addiction
(2009) report suggested the idea that we can divide countries
into those with ‘repressive’ or ‘liberal’ drugs policies was
problematic- ‘value laden’ and ‘meaningless’ concepts
(EMCDDA, 2009).
• There is little detailed research on the level of disposals given
out for drug possession offences, and to who?
• Official statistics illustrate the proportion of cases dealt with
by fines or community penalties etc., but nuanced detail is
missing
My research
• Observations in three London magistrates’ courts (btw. Sept.
2010 and April 2012), over 12 morning court sittings
• Recorded the type and quantity of drug the person was in
possession of, how and where they were arrested, whether
they pleaded guilty or not, background circumstances of the
defendant, and the disposals handed out
Total drug possession cases n=27
Gender
Male x26
Female x l
Age (yrs)
18 20
=2
20-29
=13
30-39
=8
40-49
=3
50 and over = 1
Ethnicity
White
Black
Asian
=6
=15
=6
Drug possession offences
Cannabis
x17
Cocaine powder x8
Heroin
x1
Crack cocaine
x1
Socio-economic status
Paid employment x 1
State benefits
x 25
Disability Living Allowance x 1
Pleas entered
Guilty x 20
Not guilty x 6
Discharged x 1
Socio-demographics
Drug possession amount
Penalty dispensed
Penalties
1.
2.
3.
M, 18 yrs, asian
M, late 30s, black
M, 28yrs, black
1 cannabis spliff
1 cannabis cig
Possession of a cannabis joint
4.
M, mid 20s, asian
Offering to sell cannabis to a PC Sentencing delayed to follow a probation report
5.
M, 24 yrs, Asian
one cannabis cigarette
6.
M, 31 yrs, white
A small quantity of cannabis
Fine: total £170 plus 20 hours unpaid work to be
added to previous 180 hours
Fine: total £200
7.
M, 22 yrs, white
small bag of herbal cannabis
Fine: total £165
8.
M, 40 yrs, white
Small bag of herbal cannabis
Fine: total £150
9.
F, 24 yrs, white
2 bags herbal cannabis
10.
11.
12.
13.
14.
M, 39 yrs, black
M, 44, yrs, black
M, 21 yrs, Asian
M, 18 yrs, black
M, 24 yrs, black
2 wraps of cannabis
1 wrap of herbal cannabis
3 wraps of cannabis
1 sealed bag of cannabis
1 small bag of cannabis
Conditional discharge but £30 toward prosecution
costs
Fine: total £130
Fine: total £120
Fine: total £115
Fine: total £50
Breach of penalty – sent to Crown Court for review
15. M, 32 yrs, black
16. M, 22 yrs, Asian
17. M, early 20s, black
Conditional discharge for 12 months
Fine: total £115
Fine: total £166
Possession of small quantity of Fine: total £115
cannabis
A wrap of cannabis
Fine: total £100
Possession of 3 wraps of Lowest end of community order Electronic tag for
cocaine
4 weeks and curfew order 8pm to 8am
18. M, 29 yrs, black
Small package of cocaine £40
Sent for probation appointment
19. M, 39 yrs, white
20. M, 32 yrs, white
£10 wrap of crack
1ml of diamorphine
Fine: total £205
Fine: total £147
Observation findings
• A relatively high number of small quantity (ie.
“a £10 bag of cannabis”) drug possession
cases appeared in court
• Significant financial penalties were received
(range £50-205)
• Variable application of the drug laws, ‘police
discretion’ - who gets arrested, and proceeded
for prosecution?
Observation findings (ctnd.)
• Drug arrests were made through random ‘stop and
search’ under the pretext of ‘suspicion’.
• Questions emerged on sentence utility – what
purpose was the punishment to serve? i.e.
deterrence, retribution etc.
• Problems with the drug laws - the dual purpose of
the A to C classification system – expresses the
severity of drug harm to personal health as well as
dictating the severity of penalties for drug offences
Drugs harm
• The ‘harm principle’ – conduct should be
criminalised only if it is harmful, problems
with criminal wrongdoing that occurs without
causing direct harm
• Drugs criminalisation is based on notion of
harm
• Ruggiero (2000) in his writing on drug
prohibition and legalisation draws on work of
the political philosopher John Stuart Mill
(1859) on harm and individual freedom
Harm and individual freedom of
choice
• Mill’s seminal work ‘Liberty’ (1859) queried
what personal actions the state should
legitimately intervene in in its endeavour to
preside over a productive, free, and moral
society
• Mill judged apart from when individual
actions caused wider societal harm, or
impacted on personal responsibility people
should be ‘free’
• Ruggiero argues prohibitionists take
advantage from the position that Mill puts
forward that government legal intervention is
justified because drugs cause wider societal
harm –public health, safety, violence problems
etc.
• The principle lends itself to a range of
interpretations
• Conversely legalisers can also use the
argument of harm to argue for drug law
reform
Whose harm?
• Increasingly the discourse of alternative drugs
policies considers the drug-related harm to be
inclusive of the impact law enforcement has
on peoples’ finances, liberty and future
employment, travel options –
disproportionate impact
• Human rights violations of some drugs
penalties namely the imprisonment of drugs
addicts and the denial of appropriate
treatment and care.
• Can we convincingly argue the possession of
small quantities of drugs for personal use
causes little societal harm and should
therefore be dealt with in ways other than
through criminal prosecution?
References
• Bewley-Taylor, D. Hallam, C. and Allen, R. (2009) The Incarceration of
Drugs Offenders: An Overview. The Beckley Foundation Drug Policy
Programme. www.idpc.net
• EMCDDA (2009) Drug Offences: Sentencing and Other Outcomes.
European Monitoring Centre on Drugs and Drug Addiction: Lisbon.
Available from www.emcdda.europa.eu
• Greenwald, G. (2009) Drug Decriminalisation in Portugal: Lessons for
Creating Fair and Successful Drug Policies. Cato Institute: Washington
available: www.cato.org/pubs/wtpapers/greenwald_whitepaper.pdf
• Law Commission (2011) Controlling and Regulating Drugs: A Review of the
Misuse of Drugs Act 1975. www.lawcom.govt.nz
References
• Nutt, D., King, L. and Phillips, L. (2010) Drug Harms in
the UK: A Multicriterian Decision Analysis. The Lancet,
3761558-65.
• Ruggiero, V. (2000) Crime and Markets. Oxford
University Press: Oxford.
• Stewart, H. (2009) The Limits of the Harm Principle,
Criminal Law and Philosophy’
• Ward, J. (2013) The Punishment of Drug Possession
Cases in the Magistrates’ Courts: Time for a Rethink,
European Journal on Criminal Policy and Research,19,
4, 289-307.