Decriminalising drugs: could it work in Ireland?

In 1977, just before the heroin epidemic began to take hold in Dublin, the Fine Gael government passed a law which made it a crime to consume opium, possess an opium pipe or even visit a place where opium is being taken.

The law was contained in the Misuse of Drugs Act 1977, Ireland’s first modern piece of drugs legislation. The Bill enjoyed cross-party support and its sponsor, Minister for health Brendan Corish, was proud of his work, telling the Daíl the Bill “will measure up to any legislation in any of the other European or American countries”.

The opium law is noteworthy because, though there are many laws forbidding the possession of drugs, it is the only one on the statute books forbidding the actual consumption of a substance. It is also noteworthy because 40 years on there hasn’t been a single prosecution.

The problem? Nobody really takes opium in Ireland. The government passed the law to address the growing heroin problem while failing to grasp that heroin was legally and chemically a different substance to opium.

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It’s just one example of Ireland’s often ineffective legal response to drugs which critics say has resulted in a country with the fourth highest rate of overdose deaths in the EU and increasing numbers of young people taking illegal drugs.

Now campaigners are hoping Ireland may be about to turn a corner in its attitude to drug use with the news that a Government working group is to consider proposals for the decriminalisation of all drugs for personal use.

Some proponents of decriminalisation have presented it as a panacea which will solve Ireland’s drug problems overnight. They point to Portugal, which decriminalised possession of drugs in 2001, as evidence of success of the policy. More restrained commentators, including the architect of Portugal’s current drug policy, point out that decriminalisation is just one part of an incredibly complex puzzle and that it comes with its own set of difficulties.

Portuguese example

So what would Ireland look like if drug possession was decriminalised tomorrow? Dr Joao Goulao believes Ireland could benefit greatly from decriminalisation. His enthusiasm is to be expected. He is the man behind Portugal’s drug policy which has been hailed around the world. Articles about Goulao’s work regularly appear in the international press under headlines like “Why hardly anyone dies from a drug overdose in Portugal” (Washington Post) and “Drug Abuse Down by Half in Portugal” (Forbes).

In the 1990s, Portugal’s drug use wasn’t particularly high by European standards. But among its drug-users, a huge proportion was addicted to heroin or other hard drugs. “It was a very, very serious problem, says Goulao, now Portugal’s National Drugs Coordinator. “At the time in the 90s we estimated we had about 1 per cent of our population hooked on heroin with lots of related problems like HIV infections, overdose deaths and criminality.”

By 2001, addiction was “cutting across all social groups, it was not something just affecting marginalised communities”.

He and other experts decided radical action was needed and their proposals enjoyed broad public support. The left-leaning government passed legislation stating possession of drugs for personal use – defined as a 10-day supply – would no longer be dealt with in a criminal court.

Instead, users are brought before a three-person commission which can order rehabilitation treatment or other health interventions. It can also issue fines but these are generally imposed on casual drug-users and not addicts. The important part is there is no criminal conviction.

“The strategy was based on the idea that we were dealing mostly with a health and social issue rather than a criminal one,” Goulao says.

Sixteen years on the results have been dramatic. Portugal now has the second lowest rate of overdose deaths in the EU. HIV infections are down significantly as are overall rates of drug use among adults.

Drug-dealing is still illegal but now the police and courts are able to direct resources towards catching the serious criminals rather than the addicts.

Ireland and Portugal are both small countries on the edge of Europe which have seen the worst of the heroin epidemic. It’s reasonable to expect the benefits seen in Portugal could be replicated here. But it’s also reasonable to expect we’ll see some of the drawbacks to decriminalisation.

Since decriminalisation, drug use has fallen slightly among many sectors of society in Portugal but it has risen among certain cohorts of young people.

Lifetime use of cannabis actually increased among 15-16 year olds in Portugal immediately after decriminalisation. And last year a World Health Organisation report stated that cannabis use among adolescents is higher in countries with liberalised drug laws. This is a particular concern due to the increasing strength of new cannabis trends which have been linked to mental health problems in teenagers.

In other word, the strategy has had huge benefits for serious users but has done little to stem the casual use of drugs, and in some cases may have contributed to its rise.

The data shows how, at its heart, drug decriminalisation is a class issue. It means the heroin addict from a marginalised community is less likely to die of an overdose but the son or daughter of a middle-class family is perhaps more likely to start using high strength cannabis or the dizzying array of synthetic substances that are available to buy online.

Cahir O’Higgins, a solicitor whose firm deals with hundreds of drug cases every year, worries that decriminalisation would send a message that drug-taking is okay.

“I think it could lead to the impression that drug-taking is socially acceptable. I’d have a concern that if someone could casually possess hard drugs it would make it easier to become an addict. If someone has no fear, there’s no deterrent.”

The question is, is this a price the middle classes are willing to pay? Senator Aodhán Ó Ríordáin has been pushing for decriminalisation since his time as a junior minister in charge of drug policy in the last government. He believes it’s an easy choice.

“The fundamental responsibility of a policy-maker is to save lives. If you have a system where people are literally dying on the streets as they are here – they’re dying in playgrounds, they’re dying in toilets of shopping centres – that system has to change.

“People are very wary of wider availability but that’s not what we talking about. We’re talking about a more effective, more humane, more compassionate way of treating somebody who clearly has an addiction.”

Ó Ríordáin is not convinced legal sanctions have much effect on young people’s drug use anyway. “People are taking drugs all the time regardless. The threat of a criminal conviction isn’t stopping young people from taking drugs.”

Daniel, who has been taking heroin for 10 years, says the fear of the law has never been much of a factor in his decisions. “If you want heroin, you’re going to take heroin. It you’re on a bad road, you’re going to keep going on that road. Nobody I know worries about being arrested,” he says.

Daniel has been prosecuted three times for minor offences, including once for possession. He doesn’t want to give his full name because he says there is currently a warrant out for his arrest. The arrests have had no impact on his heroin problem.

“It didn’t [stop me from taking more drugs]. What you have to understand is it’s an addiction. Coppers and prison and that doesn’t make a difference,” he says.

Benefit to society

Campaigners like Ó Ríordáin say decriminalisation will benefit society in many areas, particularly in saving time and money in the criminal justice system.

Around 75 per cent of drugs cases before the criminal courts are for simple possession. On the face of it decriminalisation would free up a huge amount of legal resources and have a significant impact on court waiting times. However the impact may be overstated; frequently possession charges are a byproduct of a Garda search relating to a more serious offence.

“A good proportion of people we bring in would be there anyway for other offences. The possession would be kind of just travel with it,” a Dublin sergeant said. In other words many people in court on possession charges would be there anyway.

But even taking this into account, the effects on the court system would be dramatic. Last year there were 11,486 convictions for simple possession. One drugs worker recalls a young man convicted last year of possession of €2 worth of cannabis. For this to happen the State had to pay for both prosecuting and defence solicitors, not to mention the cost of the judge, court and gardaí involved in the case.

The savings decriminalisation would mean for the legal aid budget alone would be significant.

“It would immediately take a huge amount of cases out of the District Court and the Circuit Court Appeals,” says Garnet Orange, a senior counsel who specialises in drug law. “Although all the cases caused by drug addiction, counter-jumping robberies etc, would still remain of course.”

On the other hand, when it comes to prison resources, decriminalisation would make little difference. Last month only 50 people were in prison for drugs possession; representing 1.3 per cent of the total prison population.

Proponents of decriminalisation often say it will free up gardaí to go after serious criminals. But if we adopt the Portuguese model, gardaí will still be required to arrest and process people caught with drugs. The only difference is the culprit will go to a “dissuasion committee” instead of a court.

Decriminalisation could also make it harder for gardaí to catch the dealers as they would no longer be able to threaten drug-users with conviction to get information on those higher up the chain. This has been one of the complaints from Portuguese police. “They have to learn how to work in a new way because they have lost a source of information,” Goulao said. “They have had to increase co-operation with international police and customs forces. And nowadays what we notice is instead of seizing grams and kilos they are seizing tonnes. Instead of dealing with the small fish they go after the sharks.”

In Ireland, the Garda Representative Association, which represents rank and file officers, say the issue is too political for it to take a position on, although in 2015 it came out in support of previous decriminalisation proposals. Individual gardaí contacted by The Irish Times had mixed views, with most welcoming some kind of reform.

“It would mean we don’t have to waste entire days waiting around court for a case to be heard, that would be a big plus,” says one Dublin garda.

“I don’t see it working,” another said. “You can’t make drugs legal while the source of drugs remains illegal. We’d be basically giving permission to dealers to make their money.”

Criminals profit

In other words, if we want to help addicts we must accept that violent criminals will continue to profit off their misery. This is the compromise opponents of the policy find most difficult to accept.

Decriminalisation campaigners are eager to stress that they don't want to legalise drug-dealing and that people who profit from the trade should continue to be targeted. However, one of the lesser publicised aspects of the Portuguese model is that prison sentences for drug-dealers decreased dramatically after decriminalisation. A study in the journal Law and Social Inquiry found that the numbers in prison for dealing drugs decreased by nearly half, even though arrests numbers changed little. The authors of the study speculated that the decriminalisation of possession was part of a broader softening of attitudes towards drugs which was reflected in the punishments handed down to dealers.

Some lawyers believe this trend is already present in Ireland. “The sentences for drug-dealing have definitely come down in the last few years. Especially in the growhouse cases where they’re growing the cannabis,” says Orange.

Campaigners on both sides of the decriminalisation debate issue are keen to point to statistics showing the rise or fall of drug use in certain demographics.

Marcus Keane, barrister and legal adviser to the Ana Liffey Drugs Project, believes they are missing the point. “Prevalence of drug use changes over time anyway. The evidence shows criminalisation or decriminalisation alone doesn’t really have any major affect in an open society.”

Keane says decriminalisation will only work if the government is willing to invest in the alternatives that will save lives. Otherwise, he says, there’s not much point. This is echoed by Goulao who says that decriminalisation is “no silver bullet” to Ireland’s drug woes.

He stresses that when his country decriminalised drugs it also invested huge amounts of money in its health, addiction and social services. Portugal also raised the minimum wage at the time which some experts say indirectly stopped people falling into addiction.

Ó Ríordáin realises any policy would also require huge investment, but that again, it’s a price worth paying.

“It would cost money. To set up a powerful dissuasion committee to track individuals absolutely would be expensive. But what price do you put on a person’s life. I don’t think we put high enough price on it in this country.”

Case studies

DAVID LYNCH: "When I first started taking heroin the cops were the last thing I worried about”

Last December things were looking up for David Lynch. He was clean of every drug except cannabis and had earned a coveted place in Dublin’s Drug Treatment Court.

He was referred to the court after his arrested on charges relating to his heroin addiction. The rules were if he kept out of trouble and continued receiving drug treatment, the judge would strike out his charges.

When it was established in 2001 the Drug Treatment Court was one of the State’s first acknowledgments that addiction was best dealt with through intervention rather than prison. It’s a tough road and most people fail to abide by its rigorous demands. Today Lynch is no longer on the programme. He was kicked off after relapsing on heroin and picking up two new charges for possession. He has been referred back to the criminal courts for sentencing.

The proposals to decriminalise drug possession are the evolution of the idea at the heart of the Drug Treatment Court; that addiction is a disease that needs to be treated not punished.

David laughs when asked if he’s in favour of the proposals, “Of course I am, yeah.” But he quickly adds that there should be limits. “As long as you haven’t got too much drugs. Dealing should still be illegal.”

The current situation, which sees over 10,000 people prosecuted every year for possession, is helping nobody, Lynch says.

“Right now people are getting locked up for having a drug problem and that doesn’t make sense. I know they’re worried about crime going up but I think with 90 per cent of [drug addicts] that wouldn’t happen. They’re only interested in drugs and nothing else.”

For Lynch, fear of the law has never been a factor in his decision to take drugs.

“When I first started taking heroin the cops were the last thing I worried about. I was hanging around with older people around the flats. There was no reason to worry about the cops. Nobody thought about the cops. There was no need to worry about them if you kept your head down.”

It was only when he got deeper into addiction and became homeless that he began picking up charges for drug possession. He has been arrested so many times since then he has lost count.

Now he is hoping he can get into a residential treatment programme in Cluain Dara in Kildare – he has already sent in the application. However, he’s still worried the pending charges against him could mean a prison sentence.

“I don’t know what the outcome is going to be. Hopefully, I get them finished with and I don’t end up back down that road.”

GARY CUNNINGHAM: “Some horrible things happened to me and I used them as an excuse and a crutch.”

Gary Cunningham is a little embarrassed to admit that he was 31 -years-old when he became addicted to cocaine. For years he was happy enough being what he describes as a “self-absorbed arsehole of an alcoholic”.

That was until “the wheels came flying off”. Within a short space of time, his father died and he lost a child. These events led to him to start supplementing his drinking with cocaine.

“My dad ran the family company so with him the company died. The well ran dry but my addiction didn’t.”

His addiction led to him running up a drug debt and which in turn led to him agreeing to hold over €80,000 worth of cannabis and ecstasy to pay it off. He was caught and jailed for 3½ years in 2012.

“Some horrible things happened to me and I used them as an excuse and a crutch. It was only when I was sitting on my own in a cell in Mountjoy that I said to myself ‘do you know what Gary, It’s not your daughter, it’s not your drinking, it’s you being a self centred prick’. And that’s when I turned my life around.”

Now Cunningham is a published author, a musician and most importantly, drug-free. As someone who’s seen the system from the inside, he can’t make up his mind on the decriminalisation debate. He is certain of one thing, however: the current system does nothing to turn young people away from drug abuse. “It didn’t matter to me whether the government or anybody else was decriminalising drugs or not, because I was an addict. It wouldn’t have made a blind bit of difference. I compare it to the way they keep putting up the price of the smokes. Everyone says when it goes over €10 they’ll stop. But they’re over €11 now and I’m still smoking.”

But he’s worried that decriminalisation could send the wrong message to young people about drugs. “The government need to do this right and educate people. They need to say ‘we’re decriminalising it because we want to help addicts, not so you can have a free party where everyone can get off their faces’.

“For me, the fact that cocaine was illegal didn’t enter my mind. I’m thinking of the young fellas I’ve seen. If Simon Harris or whoever said tomorrow ‘right, let’s decriminalise drugs’, I’ve a horrible feeling in my stomach that they’ll go out and have a party that night.”