LAST FRIDAY, THE government launched its policy on Ireland’s approach to the possession of small amounts of drugs for personal use, following the report of the working group set up to examine the issue. In essence, the new policy adopts a staged approach to dealing with possession.
The first time a person is caught, they will be diverted for a (mandatory) health assessment with HSE. The second time, the gardaí will have the option to apply an adult caution under the adult cautioning scheme. The third time, the person will have used all their chances and will face criminal prosecution.
For those who have been following the policy as it developed to this stage, they will know that this is a policy born of compromise – an attempt to reconcile health and criminal justice in the context of personal drug use. However, there should have been no compromise, personal drug use is a health issue, pure and simple.
As a result, the policy is not likely to achieve its goals – adopting a health led approach, connecting people who use drugs with health services and breaking down the stigma associated with drug use.
In this piece, we look at the main reasons as to why this is the case.
Who is likely to get caught more than once?
First, think about who is likely to be caught three times for possession, and who will thus be criminalised under the new policy. For most people, it’s easy to avoid getting caught at all.
Although drug use is widespread – over 1 in 4 Irish people report using illicit drugs at some point in the lives – and although An Garda Siochána detects many thousands of episodes of possession every year, the vast amount of drug possession in the state goes undetected.
Laws against simple possession are largely disrespected by the Irish public, partly because they are unenforceable to any level where they might have a deterrent effect. The risk of getting caught is, quite simply, minuscule.
Against this backdrop, who is likely to get caught more than once? The sad answer is those that are visible – people who are homeless, people whose drug use is causing them such difficulties that they often use drugs in the public domain, people whose living conditions mean that it is difficult for them to get out of sight and away from garda detection. In short, those who are already marginalised; those who are already struggling with their drug use.
If you listen to the rhetoric, these are those who the policy is intended to help – we talk of this policy giving ‘chances’ and ‘opportunities’ to people. It’s 2019. Healthcare is not something Irish citizens should have a ‘chance’ at. It’s something that we should be entitled to, and if drug use is a health issue the first time, it is a health issue the hundredth time.
A system that diverts people to health services – correctly identifying the issue as one for health services to deal with – only to divert that person back to the criminal justice system if they don’t comply with the health diversion or need to be diverted more than once – is clearly inappropriate.
I can think of no other health issue where policymakers would think it appropriate to rely on the criminal justice system for enforcement. Thus, although it’s not the proposed policy’s intent to further marginalise people struggling with drug use, I am deeply concerned that this will be its unintended consequence, and that this will be a policy that ends up perpetuating isolation and disadvantage as opposed to reducing harm and supporting recovery.
This leads to the second point. The policy as set out is unnecessarily complicated and bureaucratic, and it is hard to see how it can be delivered in a way that will provide value to the taxpayer.
Those caught for the first time attend a health screening, which is mandatory. This is unnecessary. The evidence shows that the vast amount of drug use in a society is by people who do not struggle with their drug use, and who do not require treatment.
Most people will not need to be offered further intensive interventions, so why insist that they get assessed? Of course, people should be offered an assessment, but they should not be forced to undergo one on pain of prosecution.
This approach of forced assessment is particularly hard to defend in the context of current policy – as it stands, Ireland has a system in which people who are found in possession are processed through the courts.
If the state genuinely has a legitimate interest in assessing the health needs of everyone found in possession of drugs for personal use, then why are we not already doing this? The cohort is not a hidden or hard to reach population – it is, by definition, that group of people that the state has already detected and is currently processing through the criminal justice system.
If assessing the health needs of everyone found in possession of drugs for personal use was a genuine concern, why haven’t we been doing it since we started to criminalise possession over 40 years ago? Further, the mandatory nature of the assessment creates, by necessity, a feedback loop between the health services and the gardaí – more bureaucracy, and more cost.
Getting caught a second time will lead to a discretionary adult caution – which, if it falls to be implemented in the same way as the current adult caution system is a far cry from the mental image of the system I’m sure most people have – a compassionate guard simply giving a person a caution, another chance and sending them on their way.
Rather, adult cautioning is a complex system, requiring the involvement of not only the garda but also the local superintendent. There are referral forms, meetings with the accused, time spent which has an opportunity cost. There are also facets of the adult cautioning system which make it less flexible than it seems – you can generally only be considered for it if you have no previous convictions, for example.
Further, you have to accept responsibility for your behaviour, essentially admitting the wrong, and if you come before a court again, the fact that you availed of the adult caution scheme before can be brought up at sentencing.
Finally, if someone gets caught a third time, the criminal prosecution – courts, police time, lawyers, the well documented negative lifelong consequences – all in the name of punishing something which the government rightly notes is a health issue.
It’s important to be clear – all of this will cost money, and it is not likely to be effective in reducing levels of drug use or drug-related harm in Irish society. Focusing on punishing individual level consumers in drug markets is not supported by evidence as an effective policy approach; that we should be continuing with it in 2019 is disquieting, to say the least.
There are things we could be doing that do have an evidence base – universal prevention programmes, making access to treatment easier for people who need it, helping people in recovery build their recovery capital as they face into a new future.
But this policy will not help us achieve them. It draws a bright line between those who do not use drugs at all, or avail of the single chance on offer – these are the ‘normal’ people – and those who do not or cannot avail of said chance. It appears that we have a word for these people too – criminals.
And this leads to the third and most important point as to why this policy is not fit for purpose. It is stigmatising. It makes it clear that people who use drugs are worthy of help and support, but only if they manage to keep themselves hidden and away from detection.
If they don’t manage to do this, society will extend a branch – but just the one – before lowering the mask and reverting to type, which is to bemoan the lack of grace with which people receive help and to hand them over to the police so the criminal justice system can label them for us.
This approach – in circumstances where addiction is viewed as a chronic, relapsing, health condition and in which it is well documented even those trying hard in treatment programmes can struggle to stay away from drugs – is very sad and very wrong.
So, where do we go from here?
Well, it’s important that we look at the report of the working group and talk about what they found – all three strands of their public consultation revealed a public that is overwhelmingly in favour of removing criminal sanctions for simple possession, for example.
We also need to look in more detail at some of the underlying assumptions on which the policy was based – that decriminalising simple possession while maintaining garda powers to stop, search and confiscate drugs was not considered to be legally viable in the Irish context, for instance.
We need to understand why government felt it necessary to ignore some policy options which should have been easy to go with, why they failed to remove imprisonment as a possible consequence for simple possession, for instance – something which the working group recommended and which the international community is entirely united behind.
Finally, we need to recognise that there is a long way to go before this policy will be implemented and that there will be many opportunities to advocate for a better system along the way – one that will genuinely reduce harm and support recovery, rather than one that is merely likely to punish those who need help the most.
Marcus Keane is a lawyer and head of policy at the Ana Liffey Drug Project.
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