DRUGS SCAFFOLD
The Basis for Criminalisation Social
Control • To entrench minorities in a position of racial stigmatisation and permanent marginalisation o Crack is typically used by lower socio economic classes and racial minorities; has the
same minimum sentencing as cocaine but for much lower quantities.
o Prison population for crack is 79% black with an average term of 115 months; in contrast prison population for cocaine is 17% black and has an average term of 87%
• Historically opium and heroin laws were used to minimise Chinese presence in Australia during the Gold Rush, as Australians were resentful and fearful towards Chinese – Opium
Proclamation in 1905 referred to the “illegal possession of opium by Chinese or others”
o Rodrigo Duterte’s war on drugs
o Trump’s intention to build a wall to “stop the inflow of drugs from Mexico”
• Drugs are associated with different lifestyles to the ideals of Protestant work ethic and consumerism
o Muford: drugs have consequences such as poor performance on jobs, therefore employers and taxpayers have vested interests in controlling such uses
Harm
Principle • According to Mills, the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others
o This has a common sense ring to it and connotations of objectivity, simplicity and concreteness which belie its complexity
o But who decides what is harmful? Hogg and Brown: the government are at the top of the “hierarchy of credibility”, therefore they are the authoritative sources whose views are widely circulated and incorporated into popular common sense
• Hogg and Brown: A crisis of perspective is formed through key themes such as discourse regarding “soaring crime rates” and the need for criminal justice system to protect its citizens
o Moral panics are a feature of modern society – it is influenced by social media and has led to exceptional circumstances/cases being normalised
o Increased fear of crime drives support for punitive justice policies, allocates blame, calls for vengeful punishment and shifts criminal justice system away from
rehabilitation and prevention into cycles of imprisonment and criminogenic practices
• Lee: Politicians use fear of crime to justify imposition of tougher approaches, in turn spreading more fear; the concept feeds the discourse and the discourse in turn justifies the concept
o The law is subject to transient fears – it is supposed to be consistent in its application through logical analysis
o Extraordinary circumstances i.e. the gravity of new threats are justifying extraordinary laws – we come to accept and expect these exceptional laws as necessary to live within society
• Brown: criminal law is normative in the sense that it is a major site of moral politics and moral enterprise in which the contest over values and symbolism is frequently more important than instrumental considerations such as deterrence
o Arguments about crime reduction, criminogenic effects of penal excess rarely trump symbolic and express appeals
Morality
Principle • Duster: changes in the legal status of drug use law leads people to think of an activity as immoral even thought it was previously legal e.g. morphine and heroine being sold freely in the 1900s to criminalisation
It must be recognised that the criminal law cannot solve the majority of problems of illicit drug use – it does not deter young people from using drugs. The high use rates indicate social ambivalence regarding their criminal status.
• Indeed, more than 40% of Australian has used illegal drugs in their lifetime, and Australia has the highest rate of recreational drug use in the world (Australian Institute of Health and Welfare).
• Reflects Morris and Hawkins: criminalisation of acts is “based on exaggerated conception of the capacity of the criminal law to influence men”
However, what should be at the heart of the appeal to end the War on Drugs is the recognition that drug use is and always has been in truth a public health and social issue, not a criminal one.
• According to ABS, following peak rates of deaths in the late 90s, rates of drug deaths were relatively stable in the early to mid 2000s – from 2011 there was a significant increase, with preliminary rates of 7.5 deaths/100 000 people recorded in 2016
• Nevertheless, the criminal law is found in legislation and now common law; this reflects little regard for general principles and sees the criminal law and process as a flexible way of responding to social and administrative problems
o Gives rise to ad hoc decisions and legislative eclectism rather than deliberate and considered review and decision making (Carney)
• Drug offences are mala prohibited – wrong because they are prohibited. That is, the use of certain drugs is criminal because parliaments have proscribed it, not because we think the conduct is necessarily wrong in itself and deserving of punishment
Additional Costs Created by Criminalisation
Prohibition is counter productive – it causes significant harms additional to those resulting from drug use. When deaths are reported in the media, the governments blame irresponsible activities of victims, however not the anti-drug policies that give people incentives that result in the following costs.
• Automatically creating a “criminal class” of people who have used drugs – bringing people into contact with criminal justice system
• People Less likely to access health services – dishonesty when accessing services
o The majority of overdose deaths occur in the company of others and often there is a reluctance to seek help because of fear of the police
• Create black market of artificially inflated prices for substances so that people take greater risks to obtain them or to obtain the money to buy them
o Unhygienic conditions of distribution of illicit drugs, sharing injecting equipment – the harm associated with injection of heroin would be avoided by smoking, snorting or swallowing it
• Crime and organised crime- financing drugs causes people to commit property offences, growth of black market i.e. government is creating the conditions for crime
o Violence around drug distribution trade
• Police corruption: Examples include planting of drugs on suspects, recreational use of illicit drugs by police, protection of the drug trade and drug trafficking
• Creates a crime tariff (Packer): due to the inelasticity of demand for drugs people are willing to pay large amounts of money, creating profit to the entrepreneur willing to break the law
Consequent Law
• Drug laws have disfigured, distorted, severely eroded or simply ignored the basic principles of criminal law that are deeply entrenched in the common law and underlie legislation
S40: A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented…as being a prohibited drug…shall be deemed to be a prohibited drug.
• Extremely broad statutory definition of supply in s 3 means this offence is complete on the making of the offer – whether any supply eventuates or whether the person intends to supply the substance is irrelevant
S29: A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:
(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply,
• Burden of proof is reversed and the onus falls on the accused to prove that possession was not only for the purpose of trafficking
• Eliminate requirement to identify evidence of actual trafficking or trafficking intent, and increase the ease of delivering serious sanctions
• Disregard the presumption of innocence, the burden of proof on the prosecution and the concept that the criminal should only punish where a criminal act coincides with criminal intention
• This innately increases the maximum penalty from two years to fifteen years, undermining He Kaw Teh principles; particularly gravity of offence where it implies that it is unfair to penalise without requisite mens rea
• Increase pressure to use police and prosecutorial discretion in the administration of the criminal law o Application of discretion as to when to charge users, the severity of the charge laid
• Increases number of users at risk of erroneous charge, increasing demands on courts and imprisonment of drug users, reducing public confidence in the criminal justice system due to questions about the justice and fairness of legal responses to minor drug offenders
The Alternative
• Efforts to control crime and sanction offenders need to be balanced against the power of the state and the cost from arbitrary and unjustified use of that power, including denigration of democracy and human rights
• Whilst the easiest way to reduce drugs is to make it illegal, this is a blunt use of the criminal law and doesn’t consider consequences. A more nuanced approach is harm minimisation
• The overwhelming evidence of additional harms caused by the policy of prohibition must trump the moral panic and punitive law and order rhetoric and irrational fear of drugs that arise from ignorance and lack of analysis
Harm Minimisation Policies Pharmacological
programs • Provides a regulated means by which to administer a weaker version of the illicit drug to the user to manage and control dosage, or prevent withdrawal system
• Shows people are willing to change
• BOSCAR research: officially recorded offending rates of a sample of 11,126 people on the public methadone program between January 1999 and December 2000 found that, after adjusting for time in custody, offending rates were significantly lower for most people during periods when they were in a methodone treatment compared to when they were out of it
• Recidivism rate of heroin addicted offender could be cut by 20% if they left prison on methadone treatment and stayed on it in the community
• Cost effective – costs $75 000 to keep someone in prison per year compared to $4 000 to keep them in methadone treatment
Needle exchange programs
• Effective in the prevention of HIV in Australia and reducing risk-taking behaviour associated with intravenous drug use
• Between 1991 and 2000, investment in the program is estimated to have prevented 25, 000 cases of HIV
• People can still feel safe accessing these outlets – police guidelines limit and direct the NSW Police Force in their interactions with outlets and their presence in the vicinity of these outlets
• Would be beneficial in prisons:
o High proportion of illicit drugs, needle sharing is institutionalised o Prisoners then return to their communities creating health risks o Prison staff have the right to safe working environment
Safe injecting
rooms • Improves likelihood of users access drug treatment programs and primary medical care, reduction in public nuisance aspects, reduce police corruption
• On the other hand, could lead to increased drug use and suggests it is condoned
• Aiding and abetting the commission of a criminal activity
Drug Court • Integration of drug treatment services within a criminal justice case processing system, early intervention, non adversarial approach
• Drug court participants take longer to re-offend, is more cost effective than prison in reducing re-offence rate
• Magistrate’s Early Referral into Treatment (MERIT) Program – three month long program to rehabilitate defendants before sentencing
o Often used as a condition of bail before a defendant is proved guilty
o Doesn’t treat you as a blight of society – sense of empowerment and less likely to fall into bad habits
• However, the structure of NSW drug offences provides significant scope for the application of police discretion in charging and severity of charges