Drug Abuse

Chapter 6 EUROPE AND DECRIMINALIZATION: A COMPARATIVE VIEW*

* This chapter was prepared during the spring of 1977 for the Director of the National Institute on Drug Abuse under Contract No. 271-77-1211.

Introduction

Drug control laws do not emerge haphazardly. International trends have always played a dominant role in triggering and shaping domestic legislation. Thus, the initial anti-narcotics legislation in most countries of the world was enacted in the 1910's and 1920's in response to the Opium Conferences of 1912 and 1924. Another wave of drug legislation swept the industrialized world in the 1950's in partial response to a post-war increase in drug abuse and in confirmation of the creation of new United Nations agencies. Then, the explosion of drug use, especially cannabis, in North America and parts of Europe during the late 1960's, as well as an apparent increase in availability and use of heroin in many countries of the world, stimulated a great deal of international activity in the late 1960's. The result was promulgation of new international agreements as well as a new wave of domestic drug legislation beginning about 1970.

Several common themes are immediately discernible in much of this new legislation. First of all, the same interest in tighter regulatory controls which generated the Convention on Psychotropic Substances and the Amendments to the Single Convention also triggered domestic legislation which extended sophisticated regulatory controls to a larger number of controlled drugs. Secondly, criminal penalties for trafficking offenses have been increased' and the new provisions have aimed to stimulate and facilitate international cooperation in detecting and disrupting international trafficking organizations.2 Finally, a third trend, which is the subject of the present investigation, is a general reorientation of penal policy toward the use of illicit drugs and other consumption-related activity. A major theme in all recent revisions has been to draw substantive penal distinctions3 between trafficking activity and consumption-related activity, at the least by increasing the penalties for the former and reducing the penalties for the latter. Frequently, however, the reductions in consumption-related penalties are tied to the establishment of alternatives to traditional penal sanctions, especially incarceration, and to the use of supposedly "nonpenal" measures!' Sometimes these reforms are said to have "decriminalized" or "depenalized" drug use, although these terms are used to refer to a wide variety of statutory modifications.

Concurrent with these drug-abuse policy trends, the international community of criminal justice experts and officials has engaged in a collaborative effort to share information about generic reforms of the criminal process, especially in three areas : the control of discretion in the administration of criminal justice; the development of alternatives to traditional criminal sanctions, especially imprisonment ; and the reassessment of the scope of the substantive criminal law.5 In many countries, revised policies toward drug use have represented the first major efforts to implement these generic policy trends in a specific substantive area.

These legislative developments have been most pronounced in Western Europe and the Anglo-American countries, where cultural similarities have spawned similar problems in criminal justice administration and where the search for solutions has proceeded in a similar normative climate. The Council of Europe has been especially active and its Committee on Crime Problems has published numerous source documents on these general themes.6

Purpose and Method of Investigation

The primary purpose7 of this investigation was to describe the recent modifications of penal provisions toward drug use, and the resulting patterns of enforcement, in a selection of West European countries, to assess the implications of these emerging policies and practices, and to evaluate the utility of these approaches as models for reform in other countries, including the United States.

Much has been said in recent years about the importance of creating "non-criminal" means of discouraging illicit drug use and minimizing the social costs of drug abuse. Yet, despite this proliferating interest, little information has been shared. Part of the problem is the diversity of criminal jurisprudence, both substantive and procedural. Indeed, the very concept of "decriminalization" has very different connotations in different countries, depending in part on the meaning of the term "crime" or its equivalent. To some extent this comparative analysis is intended to bridge that gap in information and understanding.

This chapter is comprised of five case studies of recent drug law revisions in France (1970), Italy (1975), Switzerland (1975), The Netherlands (1976), and the United Kingdom (1971 and 1977). In each of these countries, structured interviews were conducted on site with knowledgeable persons in official and quasi-official positions,8 and efforts were also made to obtain all relevant statistical data and official statements. The final section synthesizes the case-study information and also incorporates secondary information concerning legislative revisions or administrative practices in Denmark and Austria, although none of these countries was studied first hand. As will be explained below, these European reforms have not been shaped from the same mold. They each employ different devices for implementing a shared policy of reducing reliance on the criminal sanction as a means of discouraging illicit drug use.

The Legal Background

This chapter presents a comparative analysis of recent revisions of penalties for consumption-related drug offenses. As was indicated earlier, these legislative activities have occurred against the backdrop of international treaties and domestic legal traditions which, respectively, establish the outer boundaries and substantive contours of reform. Thus, it is important to review at the outset the obligations imposed by international law and to develop an analytical framework for extracting patterns, themes and issues from the diverse array of national laws.

Obligations Imposed by International Law

Under the prevailing and authoritative interpretation of the Single Convention on Narcotic Drugs (1961), the parties are not obligated to make use, possession for personal use, and other consumption-related activity punishable offenses. Article 36 does require the parties to ensure that "cultivation, production, manufacture. . . possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever . . . shall be punishable offenses" but it is generally accepted that the term "possession" in this Article refers to possession with intent to distribute and not to "simple" possession or possession for personal use. Although the parties are bound by Article 4 (c) to "take such legislative and administrative measures as may be necessary . . . to limit exclusively to medical and scientific purposes the . . . use and possession of drugs" and are enjoined by Article 33 not to "permit the possession of drugs except under legal authority," these provisions have been authoritatively construed to require an official policy of discouragement and prevention but not necessarily through the use of penal measures.

The parallel provisions of the Convention on Psychotropic Substances have been construed in a similar fashion.

The nascent international interest in the development of non-penal measures of prevention was codified during 1971 and 1972 in several provisions of the Convention on Psychotropic Substances and in the 1972 Protocol Amending the Single Convention. For example, paragraph (1) of Article 20 of the Psychotropic Convention requires the parties to take "all practicable measures for the prevention of abuse of psychotropic substances and for the early identification, treatment, education, after-care, rehabilitation, and social reintegration of the persons involved." Article 15 of the 1972 Protocol, amending Article 38 of the Single Convention, is to the same effect. Similarly, paragraph (1) (b) of Article 22 of the Psychotropic Convention expressly authorizes the use of non-penal methods of intervention even in the cases of persons who have committed offenses which must be made punishable under Article 22(1) (a) :

Notwithstanding the preceding sub-paragraph, the parties may provide, either as an alternative to conviction or punishment or in addition to punishment, that such abusers undergo measures of treatment, education, after-care, rehabilitation, and social reintegration in conformity with paragraph 1 of Article 20.

Article 14 of the 1972 Protocol amended Article 36 of the Single Convention to the same effect.

The Meanings of Penal Sanctions

For ease of reference and comparison, it is necessary to sidestep some variations concerning the substantive definition of drug offenses and the classification of penalties. The central substantive concept employed in this chapter is "consumption-related behavior," a term which is designed to encompass a wide range of non-commercial conduct including use, purchase or possession of small amounts for the purpose of personal use, or non-commercial distribution to acquaintances for their own personal use. For the moment, no effort is made to convert these concepts into legally-defined offenses. As will become apparent below, the laws of the subject countries use somewhat different substantive devices for converting these policies into legally defined offenses. For present purposes, however, these variations are not especially important.

Differences in penalty classifications will be neutralized by focusing on the types of penal consequences which are prescribed for consumption-related activity: the direct punitive consequences (deprivations of property or restrictions of liberty) imposed "for" the offense ; and the derivative or indirect consequences of involvement in the process or of an officially recorded violation. Together these consequences are referred to, interchangeably, as sanctions or penalties. As was noted earlier, the terms decriminalization and depenalization are frequently used in connection with recent drug law reforms.

But they have no generally accepted meaning ; this imprecision is largely due to the lack of any common conceptions about what differentiates "criminal" sanctions from other kinds of sanctions—a theoretical gap which exists not only across legal systems but also within each country's jurisprudence, including the United States.9

The confusion surrounding use of these terms will not deter us from using them here ; instead, definitions will be stipulated for convenience of reference and comparison. Table 1 summarizes the differences in penal consequences by which reductions in "criminal" penalties may usefully be distinguished from "decriminalization" and by which substitution of noncriminal penalties may be distinguished from a more or less complete repeal of penalties.

An offense will be regarded as having the characteristics of a "criminal" offense" if (a) the convicted offender is punishable by a period of custodial confinement in excess of one week or (b) if identifying information about the conviction is reported to a penal record documentation center and is thereby subject to the legal consequences which generally attach to conviction of a criminal offense.

Even if the offense remains a "criminal" one, a legislature may reduce or lessen the consequences of conviction in many ways. First "criminal" offenses may be punishable by penalties of varying severity. In some countries, the penalties have been substantially reduced for some use-related offenses—for example, 30 to 90 days may be the maximum penalty. Second, incarceration and/or the adverse record consequences may be precluded for first offenders. Third, prosecutors and courts may have the discretion to forego imposition of a "conviction" (hence a criminal record) or incarceration in particular cases even though the offense is itself punishable by conviction and imprisonment. Finally, the prosecutors and courts may be required or permitted to waive prosecution or punishment if the offender participates in a treatment program ; such "diversion" schemes do not effect a "decriminalization" because the criminal process may be re-instituted if the offender fails to participate satisfactorily in the prescribed program. In all of these situations, non-penal or "less penal" measures can be (or must be) invoked even though the offense itself remains punishable as the equivalent of a criminal offense.

Conversely, if some consumption-related behavior is not punishable by criminal penalties as defined above, that behavior will be said to be "decriminalized" even if some other penalty is prescribed (such as a fine or a short period of detention) so long as the person is not regarded as having a "criminal" record. If the behavior is not punishable by any penalties, it will be regarded as having been "depenalized." Thus, depenalization is regarded as a more liberalized type of decriminalization."

As will be shown below, the legislatures of Italy and Switzerland have depenalized consumption-related behavior. In contrast, recent revisions of the French, Dutch, and British laws have effected some reduction in penalties for at least some consumption-related behavior and have introduced a number of devices for ameliorating the penal consequences of conviction. But the offenses remain criminal offenses, at least on the face of the law. It will also become clear, however, that decriminalization (or, indeed, depenalization) of some consumption-related behavior can be achieved, in practice, through the systematic exercise of official discretion by police, prosecutorial, and judicial agencies, even though the prescribed penalties are criminal ones. This has been documented, for example, in The Netherlands and in Denmark.

Penal Sanctions and Other Types of Coercion

Apart from the variations in severity of prescribed penalties for the consumption-related offense, another complicating factor is the relationship between penal sanctions and other mechanisms of coercive legal intervention. Suppose, for example, that a legislature (a) repealed all penalties for consumption-related behavior, stating that use, possession for personal use, and other related conduct are not "punishable offenses ;" and (b) provided instead that any person who is a "user" of illicit drugs may be ordered to participate in an appropriate treatment program. Presumably the determination that the person was a "user" would be based on the conduct which was formerly proscribed and punished. This type of legislative scheme substitutes a "control" model of coercive intervention for the sanction or "punishment" model. The intervention may be ordered by "civil" courts instead of criminal ones and the records of proceedings may be accessible to different agencies, and the restrictions of liberty may occur in different buildings and be ordered by different individuals and agencies. But the records, deprivations and restrictions may be equally stigmatizing and may be viewed by the subjects themselves as equally obnoxious.

Fortunately it is not necessary to decide here how such a scheme would be classified and evaluated from a jurisprudential standpoint. No country has attempted to replace the penal prohibitions with equally comprehensive "civil commitment" schemes. But there are several variations on this theme which should be mentioned here.

On the one hand, some statutes retain the classification of consumption-related behavior as offenses punishable by imprisonment but require the use of non-penal measures of intervention for a more or less defined category of users—for example, those charged with use or possession of small amounts for personal use. This type of statute does not "decriminalize" the behavior, for it remains an offense ; it does not "decriminalize" the process, for the offender is still subject to arrest and involvement in criminal proceedings ; it does not lift the threat of criminal sanctions because the offender is subject to conviction and punishment if he resists, or fails to participate satisfactorily in, the therapeutic regimen ; and, as this implies, it still reflects a philosophy of coercive intervention. These "mandatory diversion" statutes have been enacted in France (Act of December 31, 1970) and Austria (Act of June 24, 1971) . In several other countries, the law permits, but does not require the prosecutors and courts to substitute non-penal measures for penal ones. Such a permissive diversion scheme has been adopted in the Federal Republic of Germany.

On the other hand, it should be emphasized that both the Italian and Swiss laws, which have decriminalized the conduct, do retain mechanisms for coercive intervention. This is especially true of the Italian law which establishes an elaborate scheme of referral to social welfare and medical centers. But these schemes are distinguishable from the hypothetical statute described earlier because they do not impose the medical model on all drug users. Instead, the possibility of compulsory treatment is limited to those who are determined, in a separate judicial proceeding, to be "in need" of medical intervention. Although a commitment statute is subject to abuse, it does draw on a legal tradition considerably different from the criminal law.

FRANCE

French drug laws were overhauled by the Act of December 30, 1970. In general, this law increased the penalties for trafficking offenses, reduced the penalties for consumption-related offenses, and established a scheme of diversion for drug users. For first offenders, the statute requires the substitution of non-criminal means of intervention for the traditional criminal sanctions.

Provisions of the 1970 Act

Prior to the 1970 Act, "repression" through the penal law12 was the dominant theme of French narcotics laws, and trafficking and consumption penalties were functionally indistinguishable. According to official observers, the use of illicit drugs, primarily heroin and hashish, first became visible in the late 1960's, triggering parliamentary consideration of the issue in 1969. The direction of the popular mood is indicated by a September 1971 public opinion survey which indicated that 58 percent of the respondents thought that pushers deserved heavy prison sentences and 38 percent thought that these offenders ought to be put to death."

Apparently the reforms enacted in 1970 were intended to translate into French law the themes that were becoming prevalent in the international discussions of the day : substitution of humanitarian measures for dealing with the user while increasing the penalties for traffickers. Even the title of the law—"Concerning Health Measures of the Struggle Against Drug Addiction and the Repression of the Traffic and Use of Poisonous Substances""—captures this dual theme.

Basic Penalty Provisions

The basic penalty provision of the 1970 Act appears in Articles L. 627 and L. 268. Trafficking offenses are punishable by imprisonment from two to ten years and by a fine of from 5,000 to 50,000,000 French francs ($1,000 to $10 million) . Illegal importation, production, manufacture or "exploitation" are punishable by 10 to 20 years' imprisonment. For recidivists, the penalties are doubled.

Use offenses, on the other hand, are punishable by imprisonment of two months to one year or by a fine of 500 to 5,000 francs ($100 to $1,000) . It is notable that under the French criminal code the offense is "illegal use" and the act of possession is included in the trafficking provision. However, it is understood that it is within the discretion of the magistrate and the public prosecutor to distinguish in the initiation of the criminal process between the person who possesses for personal use and the person who possesses with intent to distribute. It is also noteworthy that the 1970 Act also proscribes "use" in all places ; before the Act, public use of any drug was punishable while private use was punishable only if the drug consumed was cannabis, khat or heroin. The 1970 Act abolished the distinction among drugs and made their use a punishable offense in all cases.

Relative Seriousness of Penalties

Under French law the term "crime" is reserved for only a few of the most serious offenses such as intentional homicide. The great mass of what we regard as criminal offenses in the United States are classified as "délits" which, in theory, are less serious." As a practical matter, however, no difference in severity of penalties is apparent ; all drug offenses, including trafficking are délits, even though the penalties range as high as 20 years for a first offense. The only differences are procedural ; unlike the true "crimes" which are triable at the "cour d'assises" (three magistrates and a jury of nine citizens) , délit offenses are triable before the tribunal "correctionel"—now referred to as the tribunal de Grande Instance (composed of three magistrates) .

Another category of offenses encompasses traffic and local ordinance violations and other petty police offenses which are triable in the local police courts.16 Ordinarily, these offenses are punishable solely by a fine, although in cases of recidivism the sentence could be up to two months. Apparently this is the maximum sentence of imprisonment for these petty offenses. This shows why the minimum term of imprisonment for illicit use of drugs is two months. No consideration has apparently been given to utilizing such a penalty scheme for consumption-related drug offenses.

Other Penalty Provisions

Several provisions of the 1970 French law, then unique, have inspired similar provisions in other countries and, for that reason, merit mention here. First, traffickers may be punished by a range of unusual sanctions such as banishment (2 to 5 years), withdrawal of passport (up to 3 years) or suspension of driver's license (up to 3 years) .17

Second, the Act creates a new offense of encouraging or inciting illicit drug use:

Whoever by any means has incited to the commission of [a violation of the use or trafficking provisions described above], although this incitement did not result in an act or the offense had no serious consequences, shall be punished by imprisonment from one to five years and by a fine from 5,000 F to 500,000 F, or by one of these penalties. . . . The same penalties will be imposed upon those persons who by any means incited to the use of substances and plants having the effect of opiates, even if the incitement did not result in an act.

In the case of an incitement in writing, even if introduced from abroad, verbally or by pictures, also if put into circulation abroad, assuming that such material has been discovered in France, the persons named in Article 285, Criminal Code will be subject to prosecution provided in the preceding paragraphs under the conditions set forth in this Article, if the [offense] has been committed by means of the press. The persons known to be responsible for the issuance are also subject to prosecution, or in their absence, the chiefs of the establishments, directors or managers of enterprises having participated in the dissemination or having derived profit therefrom if the offense has been committed in any other way."

Prohibitions against advocacy, incitement or encouragement of drug use have subsequently been adopted in Austria, Switzerland, Italy, and the Netherlands.

Diversion Provisions: In General

The 1970 French Act was the first to establish a comprehensive legislative scheme for substitution of the treatment process for the criminal process. Neither of the two earlier phases of drug legislation had included such provisions in France or anywhere else. Similar schemes have subsequently been adopted in Austria (Act of June 24, 1971), the Federal Republic of Germany (Act of March 22, 1971) , and Luxembourg (Act of February 19, 1973).

The French law does not "decriminalize" drug use and remains both interventionist and coercive. First, all consumption-related behavior remains punishable as a criminal offense, under Articles L. 627 and L. 628. Second, therapeutic intervention is required for all users, regardless of the intensity of their use, either in conjunction with or in lieu of criminal prosecution or punishment ; substitution of treatment for the criminal process is referred to here as "diversion." Third, diversion is mandatory for first offenders but only permissive (in the prosecutor's or court's discretion) for recidivists (most drug offenders). Fourth, when treatment is invoked in lieu of prosecution or sentencing—by suspending the proceedings or waiving the penalty—the criminal process is suspended only conditionally; it can be reinstituted if the offender fails to conform to the conditions of the suspension.

Methods of Entry into Treatment

The basic principle is set forth in Article L. 355-14: "Any person who illegally uses substances or plants classified as narcotics will be placed under the supervision of the health authority." The act then goes on to provide three methods of entry into the treatment system: (1) voluntary entry which permits a person who applies for treatment on his own to remain anonymous ; (2) entry upon referral by a physician or a social service worker, whereupon the referred person can be ordered by the health authority to participate in a treatment program (either an addiction treatment center or under "medical supervision") ; and (3) upon referral from the criminal justice system by the public prosecutor, by the examining magistrate or by the sentencing court.

Prosecutorial Diversion

The normal charging procedure in cases involving "délit" offenses is for the police to notify the public prosecutor (procureur de la République) who has discretion not to prosecute. Although the public prosecutors are normally guided by instructions issued by the Minister of Justice, their discretion in drug cases is directed by the terms of the law itself.

Article L. 628-1 provides that a person who has been arrested for illegal use of drugs, and who is a first offender, "shall not be prosecuted if it has been determined that the person submitted himself to a treatment for drug addicts or to medical supervision" under the procedures for voluntary entry or upon referral by the medical and social services. Article L. 628-1 also authorizes the prosecutor to order a person who has been apprehended for illegal use of drugs and has not previously submitted himself to treatment under the other methods of entry, to do so.19 The prosecutor may enter such an order, in his discretion, for any user, but if he chooses to do so for a first offender and the person complies with the order and completes treatment, the offender "is not subject to prosecution."

In a judgment rendered on May 4, 1972, the criminal chamber of the appellate court (Court of Cassation) ruled that the legal effect of these diversion provisions was not to exculpate the person from criminal responsibility or to confer immunity but rather to establish grounds for termination of prosecution. Again the important point here is that the conduct for which the person was not prosecuted remains a criminal offense, and that the dismissal of charges, even when mandatory, is conditional only.

Judicial Diversion

When a person is prosecuted for a "crime" or a serious délit offense, such as drug trafficking, the normal procedure is for the prosecutor to request an examining magistrate (Juge d'Instruction) to conduct a preliminary investigation." However, not all cases must be referred to the examining magistrate by the prosecutor ; this is mandatory only in cases involving "crimes" and délits committed by minors and unidentified offenders. For less serious délit offenses, the prosecutor ordinarily takes the case directly before the competent court. This is the procedure virtually always followed for drug users against whom there is no evidence of trafficking.

In any case referred to him, a Juge d'Instruction may determine that the person is a user and that there is insufficient evidence to prosecute him for trafficking. In such cases, or in cases referred directly to the adjudging court, Article L. 628-2 of the 1970 Act authorizes the magistrate or judge, as the case may be, to order the user to submit to treatment "if it is determined that the person . . . can be cured by medical treatment." Again, the procedure established is that the court is not required to order treatment; it may sentence the person forthwith. However, if the court did order the person to submit to a treatment program and the person has completed it, the court is required to waive sentencing.

Unlike the prosecutorial provision, this diversion in lieu of sentence is not limited to first offenders. However, like prosecutorial dismissal, waiver of sentence is conditioned upon completion of treatment. The physician responsible for treatment must notify the court of the "development of the treatment and its results." The law also provides that if the person "evades execution of a decision ordering treatment," he must be punished and sentenced even if he is ordered to participate in the treatment program again.

Summary

To summarize, a person who has been arrested for drug use (at least for the first time) may avoid any formal process, and any attendant stigma, simply by reporting on his own to a treatment program. Once the prosecutor has been so notified, and the person has completed the prescribed treatment, the prosecution must be waived. If, on the other hand, the person has not submitted to treatment on his own, the prosecutor's office may order the treatment; this process will generate official records, may carry some stigma, and is clearly coercive, but criminal prosecution must likewise be waived if the person satisfactorily completes the program. For persons prosecuted, the adjudging court is authorized to substitute a compulsory treatment order for criminal sentencing. This procedure, although equally coercive, would avoid a criminal penalty. Again, however, a sentence will be imposed if the offender is unwilling to conform to the treatment order.

Application of the 1970 Act to Users

Table 2 shows that more than 3,000 persons were arrested for drug-related offenses in 1974 and that more than three-fourths of those persons were arrested for "use." Although drug arrestees may, in theory, be detained, preventively, for up to four days after arrest,21 persons arrested primarily for use are, according to informed observers, routinely released after arrest. Although recent data are not available regarding prosecutorial and judicial dispositions, 1973 data show that of the 1,786 persons reported by the police for use of drugs, 13 percent of the persons had their cases filed without further action and 27 percent were ordered to report to the health authorities in lieu of prosecution. Assuming that the 13 percent "not filed" figure represents only cases in which prosecution was withheld because the person had submitted to treatment on his own, six cases in ten were still prosecuted. Does this figure represent recidivists alone?

No sentencing data were available at all but informed observers indicated that recidivist users are rarely sentenced to imprisonment except in exceptional cases of flaunting the court's authority. Also, fines or suspended sentences are routinely imposed on persons who fail to fulfill the conditions of treatment.

Two important practical questions are raised by the diversion scheme. First, the Act draws a clear line between users and traffickers. Only persons apprehended for violations of Article L. 628 (use) are eligible for diversion ; if there is evidence of dealing, the "repressive" measures of Article L. 627 are to be used. Second, the Act draws no distinction among users and employs the "medical model" of therapeutic intervention for all persons arrested for consumption-related behavior. Neither legal principle conforms well to the empirical realities of drug-using behavior or the drug trade.

The User/Dealer Problem

Many French observers have pointed out the user/dealer problem. Some, especially those associated with the judicial system, argue that many dealers are escaping punishment under the diversion provisions. Others, in the health profession, emphasize that many dealers are drug-dependent and could benefit from medical intervention. The question is thus posed. Should the basic diversion concept be utilized in cases involving consumption-related trafficking ; or should the distinction be drawn clearly and cleanly between an apprehension for use and an apprehension for dealing. Under the former approach, the law would aim to distinguish between commercial trafficking and consumption-related trafficking. A criminal code reform committee composed of ten distinguished members of the bench and bar attempted to formulate such a provision recently but concluded instead that it was best to leave the basic distinction between use and other offenses alone and to rely on the exercise of prosecutorial discretion ("the principle of opportunity") to draw the appropriate line in individual cases. Available data simply do not indicate how the prosecutors and courts are responding to this problem at the present time.

Users Who Are Not "Sick"

The other practical question concerns the applicability of the therapeutic control model to all users. Table 2 shows that 60 percent of those arrested for use in 1974 (representing almost half-46 percent—of the total number of arrestees) were arrested for use of cannabis. Conversely, the proportion arrested for opiate offenses is less than 10 percent. Table 3 shows that while the number of arrests has increased slowly since 1971, the proportion of heroin cases has slowly decreased while the proportion of cannabis cases has slowly increased.

These figures should be compared with those in Table 4 which reports the results of an inquiry by the Director General of the Department of Health regarding the characteristics of persons enrolled in treatment programs in the last quarters of 1974 and 1975. Data show that about 2,500 users were reporting to the treatment facilities during these survey periods, a far greater number than the persons arrested for drug offenses. This indicates that large numbers of persons were entering these programs voluntarily or on referral from physicians or social service establishments, without having been arrested and referred for prosecution. On the other hand, the data also show that more than one-third of these patients were being treated in connection with their use of cannabis. Similarly, among the polydrug users (approximately 4 of every 10 subjects), another quarter or so were being treated in connection only with their use of cannabis and drugs other than opiates.

Taken together, these arrest and treatment data suggest that a large segment of the treatment program clientele may be cannabis users who are being referred by the criminal justice system even though the "medical model" is not appropriate. This is one aspect of the new law which merits continued scrutiny. The Act's diversion scheme imposes the "medical model" of coercive therapeutic intervention on the entire class of persons arrested for consumption-related behavior. Although French officials do not readily acknowledge it, there can be little doubt that experimentation with cannabis and hallucinogens has increased and that a growing number of adolescents and young adults use cannabis recreationally. Many of these persons do not need treatment. It will be interesting to see how the French respond to this problem as it becomes more visible.

ITALY

Italy's drug laws were completely revised by the Act of December 22, 1975. The comprehensiveness of the new law is reflected in the coverage of its various subdivisions. The regulatory and administrative provisions appear in Titles I through VII. Title VIII deals primarily with penal measures, Title IX provides for "Information and Education Measures," Title X establishes and describes the functions of "Medical and Social Welfare Centers" and Title XI contains highly detailed provisions on "Preventive, Curative and Rehabilitative Measures."

In general, the Act increases the penalties for trafficking offenses, facilitates the development of "prevention and treatment" programs, and emphasizes non-penal measures for dealing with consumers. A statutory declaration that possession of small quantities of drugs for personal use is "not punishable" is supplemented by an integrated and detailed set of provisions for referral to medical and social service programs. Thus the law remains interventionist, albeit non-penal and less coercive.

Background

Italy's predecessor narcotic law (Act of 1954) had been enacted mainly in response to international pressures related to the flow of international narcotic traffic through Italy. Informed sources indicate that the lawmakers were not, at that time, responding to any perceived domestic drug abuse problem. Under Article 6 of the Act of 1954, "use" was not an offense but all other drug-related behavior, including "simple" possession, was punishable by the same penalty—imprisonment for not less than three or more than 8 years and by a fine of not less than 30,000 lire or more than 4,000,000 lire. The applicability of this penalty to possession for personal use was upheld by the constitutional court in 1973.

Beginning during the late 1960's, as the domestic use of illicit drugs was perceived to increase, experts in the medical community began to press for legislative reforms to distinguish between users and traffickers. Although the reform movement won much popular backing, it got nowhere until 1970, when the Minister of Interior (who controls the national police) endorsed the idea of reform. Subsequently, the government sponsored one of the many reform bills introduced in the Parliament in 1970. Although a consensus emerged quickly regarding the desirability of increasing trafficking penalties, expanding the scope of regulatory control and abandoning the "repressive" approach toward the user,22 the ensuing debate focussed primarily on the type of approach which should be substituted for the discredited one.

By 1974 the only unresolved question was how to structure a system which offered the possibility of intervening and, if necessary, controlling the user without punishing him. It is clear that the government wanted to avoid penal measures but also wanted to maintain a structure of intervention. Consideration was given to the "French solution," but this was regarded as too coercive. Instead, the drafters settled on a unique form of depenalization combined with the "substitution of non-penal modes of assistance and compulsory treatments."23

Penal Provisions of the 1975 Act

The Italian law employs several unique substantive devices to distinguish among and determine the relative severity of penalties for drug offenses. Article 71 prescribes severe penalties for production, distribution, purchase, and possession (not use) of all drugs, although it differentiates between 2 classes of drugs. Article 74 provides for aggravation of penalties for violations of Article 71 if defined circumstances are proven. Then Articles 72 and 80 carve out two exceptions from the generally applicable penalties of Article 71; in essence Article 72 deals with retail distribution of small amounts and Article 80 deals with personal consumption-related behavior. The net effect is that retail distribution of small amounts is punishable by less severe penalties than the major trafficking penalized by Article 71 and consumption-related behavior is not punishable.

Trafficking : Presumptive Penalties

Article 71 provides that importation, exportation, production, distribution, purchase and possession of Schedule I drugs (opiates, cocaine, amphetamines, hallucinogens) and Schedule III drugs (barbiturates) are punishable by imprisonment from four to fifteen years and by a maximum fine of 100 million lire, and that similar acts involving Schedule II drugs (cannabis) and Schedule IV drugs (other medically used drugs, mainly tranquilizers) are punishable by imprisonment from 2 to 6 years and by a maximum fine of 50 million lire.

Trafficking : Aggravation

Article 74 provides that the penalties prescribed in Article 71 "shall be increased by no less than one third or more than one half" if the recipient is a minor, if the offender was armed and in other specified circumstances. The Article provides for even more severe aggravation (penalty increases of not less than one-half or no more than two-thirds) if the offense "involves very large quantities" or if weapons were used in the commission of the offense.

Trafficking : Small Amounts

Article 72 provides for lesser penalties for possessing, offering, acquiring, selling, transporting or distributing "small (modiche) amounts" of drugs "for the personal, non-therapeutic use of third persons." If the offense involved Schedule I or III drugs it is punishable by imprisonment from two to six years and by a maximum fine of 8 million lire, and if it involved Schedule II or IV drugs, it is punishable by imprisonment from one to four years and by a maximum fine of 6 million lire.

Consumption-Related Behavior

Article 80 provides as follows :

Any person who illicitly acquires or in any way possesses any [narcotic drug or psychotropic substance] for the purpose of his own personal therapeutic use is not liable to punishment provided that the quantity of the substance possessed does not exceed, in any appreciable way, that necessary for the person's treatment in light of his particular medical condition.

Similarly, any person who illicitly acquires or in any way possesses small (modiche) quantities of [any narcotic drug or psychotropic substance] for his own personal nonmedical use, or who has in any way possessed these substances and has made exclusively personal use of them, is not liable to punishment.
• • •

In every case the provisions of title XI shall be applicable.24

Although most of this report will be concerned with the meaning and application of this provision, several points should be highlighted immediately. First, use of drugs and the antecedent acts of acquisition and possession of small amounts are formally de-penalized. They are not punishable acts. Second, the Act does require a formal record of the determination of non-punishability and a referral to an appropriate medical or social service agency (these are the provisions of Title XI, to be described below). However, separate legal measures are provided to coerce treatment if this is regarded as necessary—but the coercive devices are not tied back to the criminal process which has been terminated because the offense is not punishable. Third, depenalization implies the absence of punishment and formal sanctions, but not the absence of intervention : the person is subject to apprehension, his case is recorded and presented to a magistrate who determines whether his acts are punishable and his involvement with drugs is also brought to the attention of health and welfare authorities. Thus, even though the offense is not punishable, the criminal process is used as a "detection" device to facilitate, but not coerce, the delivery of any required services to the drug-using population.

The next section will describe, in detail, the duties which link the criminal process to the medical and social service system. Before doing so, however, several other penal provisions should be noted.

Other Penal Provisions

One of the interesting features of the new Italian law appears in Article 82, which imposes an obligation to testify on "any persons who have been declared not liable to punishment for having acted in the manner referred to in Article 80." Such persons are required to "give evidence as witnesses in proceedings concerning facts which in any way whatever may lead to the identification of criminals or criminal organizations which illicitly produce, manufacture, import, export, sell or otherwise transfer or possess narcotic drugs or psychotropic substances." Apparently, during the initial phases of enforcing the new law, little information was being divulged by the users processed under Article 80; the police spokesman speculated that this was due to the continuing effect of past relationships between users and dealers which have always inhibited the task of obtaining information. On the other hand, he indicated that these relationships were being loosened as users have become aware of the benefit available to them under Article 80. According to this spokesman, the results of Article 82 are now becoming visible in enforcement and investigative successes.

Another interesting feature of the new law is its provision for administrative measures above and beyond penal sanctions for trafficking behavior. Article 79, modeled after a similar French provision, authorizes judges to preclude an offender from leaving the country for a period up to three years and to revoke his driver's license for the same period. No data are available on the use and impact of these sanctions.

Finally it is also noteworthy that the Italian law, like the French, Austrian, Swiss, and Dutch laws, also includes a provision penalizing the "encouragement" of drug use. Article 76 penalizes "inducing a person to make illicit use of drugs," or "engaging, in public private, activities aimed at promoting" illicit drug use. The penalties vary according to whether the drug is in Schedules I and III or II and IV and the penalties are aggravated if the act prejudices minors.25

Linkage Between Criminal Process and Treatment and Social Services

The regional governments are directed to organize and coordinate the drug abuse prevention and treatment activities of hospitals, clinics, medical specialists, and social service agencies. In doing so they are directed to establish a coordinating committee and to create at least one "medical and social welfare center" to receive initial referrals and perform diagnostic, treatment, referral, and liaison functions. (Title X) . Treatment and other services may be initiated upon voluntary, anonymous application, upon referral by physicians and other health workers as well as by referral from the criminal justice system.

Articles 96-101 include a detailed and integrated set of provisions concerning the relationship between the criminal justice system and the therapeutic and social service system to be established under Article X.

The Police

Under Article 96, the police are directed to "inform the nearest of the [medical and social welfare] centers and the local magistrate of all cases coming to their attention of persons who use narcotic drugs or psychotropic substances for non-medical purposes in order that they may, if necessary, take such action as lies within their competence." Similarly Article 98 provides that if the police "learn of one of the acts referred to in Article 80" they "shall bring it to the attention of the magistrate." It should be emphasized that police are thereby mandated (a) to invoke the criminal process and (b) to initiate the referral process, in all cases involving drug users. Article 96 also requires the police to "accompany to the nearest health office any person who may be found in a state of acute intoxication presumed to result from the use of" drugs. This provision is similar to that found in many state laws in the United States concerning the police "protective function" in cases involving public intoxication by alcohol or controlled substances.26

Magistrates

Articles 96-101 go on to specify the procedures to be used by magistrates in cases brought to their attention by the police. If the magistrate concludes that the conditions of Article 80 are met and that the offense is, therefore, not punishable, he is required to give "his opinion concerning any medical treatment and assistance it may be necessary to give to the person concerned" and "declare that [criminal] proceedings must not continue."27 He is also directed to "transmit a copy of the decision to a [medical and social welfare] center in the locality where the discharged offender resides, in order that the center may take such action as lies within its competence."26 If the person needs "emergency" treatment, the magistrate is directed to initiate the commitment process specified in Article 100.29

Non-Cooperation

The underlying premise of these provisions is that the "non-punishable" user will voluntarily report to the medical and social welfare center and will undergo whatever treatment is prescribed. Articles 97, 99, and 100 establish the procedures to be invoked if the person does not do so. Article 97 provides :

Any medical and social assistance centre receiving a notification as referred to in Article 96 above and having ascertained that the person who is the subject of the notification has not voluntarily undergone therapeutic and rehabilitative treatment, shall invite him to do so, indicating the most suitable means. Should the person refuse, the centre shall bring this fact to the attention of the local magistrate solely for the purposes of the provisions of Articles 99 and 100. A similar notification shall be made if the person concerned voluntarily interrupts medical or social treatment of which he is still in need, if such interruption may prejudice the treatment being given.

It should be emphasized here that the medical and social service personnel are not required to notify the magistrate of interruption of treatment unless this interruption will "prejudice" treatment of which the person is "in need." This principle is re-emphasized in Article 100 which provides for a type of "civil commitment" process" which is conducted not by the criminal court but by a "specialized division of the civil court :"

The police authority or the competent medical and social welfare centre shall notify the judicial authority of any person indulging in the use of narcotic drugs or psychotropic substances who is in need of medical care and assistance but refuses to undergo the necessary treatment.

A similar notification may be made by the parents, spouse, children or, in their absence, close relatives of the person to be assisted.

Whenever the judicial authority perceives the need for medical treatment and assistance, it shall, after the necessary verifications having been made and, in every case, after the person concerned and the competent medical and social welfare centre have been heard, make an order for the admission of the person concerned to a hospital, other than a psychiatric hospital, if this is absolutely necessary, or for appropriate out-patient or home treatment. In every case, the judicial authority shall place the person to be assisted in the charge of the centre referred to in Article 90, which shall take the necessary action and report thereon at least every three months to the said authority.

The person concerned shall be placed in the charge of the centre for the presumed duration of the treatment and assistance necessary for his social reintegration.

If, when medical treatment as an out-patient has been ordered, the person concerned interrupts the treatment and refuses to resume it, the judicial authority may order his admission to a suitable hospital, other than a psychiatric hospital.

The measures indicated in the preceding articles may be modified at any time. They shall be revoked as soon as it is possible to assume that the person concerned is no longer in need of care and assistance.

Again, it should be emphasized that after the initial referral to the treatment system from the criminal system under Article 80, the criminal proceedings are terminated. Unlike in France, Austria and other states with "diversion" schemes, pending criminal charges (for use or simple possession) are not used to induce or coerce participation. Instead the traditional "mental illness commitment" model is employed. Only if the person needs treatment is a judicial order possible, and only if hospitalization is "absolutely necessary" for his treatment is such an order permissible. By using such a legal framework, the Italian law distinguishes clearly between cases where the "medical model" provides an appropriate basis for coercive intervention and cases where it does not. In diversion schemes which link participation in treatment programs to criminal possession/use charges, such a distinction is not drawn.

Treatment as an Adjunct to Punishment

One other provision should be noted. Article 96 also addresses situations where drug users have been convicted of an offense, either under Articles 71 or 72 or other criminal provisions, but are not sentenced to imprisonment. In such cases, the judge is required to initiate the drug-abuse treatment process :

A judge who pronounces a conviction in the case of a person who uses narcotic drugs or psychotropic substances for non-medical purposes shall, if he orders conditional suspension of sentence, order that the judgment be communicated to a [medical and social welfare] center in order that the center may take such action as lies within its competence.

Determinations under Article 80

Article 80 employs the technique of purposeful ambiguity. Rather than specifying the meaning of "small quantities," the Parliament, in effect, decided to delegate to the courts the responsibility for defining the line between criminal and noncriminal behavior. All observers agree that the Parliament contemplated that the judiciary would decide on a case-by-case basis, making an individualized determination, based on the report by the police and, in some cases, the testimony of experts.

However, when the police apprehend a person whom they believe is a user, and from whom they have seized a quantity of prohibited drugs consistent with this belief, they must themselves make a preliminary determination whether or not a "small amount" is involved and whether the person was holding it for personal use. If an Article 80 determination is anticipated, a summons will be issued, the person will be released and a report will be filed with the magistrate. On the other hand if the person is considered to be a dealer or if the amount is not considered to be small, he will be arrested and his case will be referred to the public prosecutor. Eventually, if the magistrate does not agree with the preliminary police determination that Article 80 is applicable, the normal criminal process will be invoked and the violator will be arrested and jailed. On the other hand, if the magistrate ultimately concludes that Article 80 is applicable to a case in which the offender had been arrested, release will be ordered.

At present there are apparently no formal guidelines to assist the police to make the preliminary "small amount" decision. Police officials emphasize the complexity of this determination which, they contend, depends on many extrinsic factors in individual cases ; but the crucial point seems to be that they feel constrained by their impression of the Parliament's intent—this is a decision for magistrates, not for the police. It is possible that the street decisions can, over time, be guided by the practice of the magistrates themselves, but no patterns seem yet to have emerged. Thus police practice undoubtedly varies from jurisdiction to jurisdiction and from officer to officer. In the absence of any guidelines, one can infer that the law has no uniform meaning at the present time. As inequalities from jurisdiction to jurisdiction (or magistrate to magistrate) become apparent, recourse to the Supreme Court can be anticipated.

The official statistics of the DAD, the central narcotics enforcement agency, indicate that 1,164 persons were brought to the attention of the magistrate in 1976 because they had possessed small quantities of drugs for personal use. This figure represents approximately one-third of the 3,551 "denunciations"—the number of persons charged for violations of the drug laws. The remaining 2,387 persons were charged with trafficking, sale, and other crimes, and 1,675 of these persons were actually arrested for these violations. These data are not apportioned by drug type and the statistics regarding referral under Article 80 do not indicate which drugs had been possessed. However, the general impression of a spokesman from the drug enforcement agency was that the major proportion of the persons who are brought to the attention of the magistrate under Article 80 are heroin addicts. This would suggest that even though a summons and a report is mandatory in all cases of detected violations, the police must be ignoring many detected violations, especially those involving cannabis. Several university students indicated that the police frequently ignore overt cannabis use and even if the drugs are seized no report is made if the amount is unequivocably small—e.g., 10 grams.

In any event, once a case is referred to the magistrate, the statute appears to contemplate that a full evidentiary proceeding will be held in all cases to determine the applicability of Article 80:

The magistrate, when the necessary information has been gathered, shall entrust an expert having specific competence in the matter with the task of determining whether the conditions for non-punishability stated in the first two paragraphs of Article 80 exist and of giving his opinion concerning any medical treatment and assistance it may be necessary to give to the person concerned. The technical verification must be based mainly on the toxic properties of the substances possessed by the person concerned, having regard to his physical and psychical personality.

The magistrate, having ascertained the existence of one of the grounds for non-punishability, shall declare that proceedings must not continue.

In the opposite case, he shall transmit the documents to the competent public prosecutor.

Despite the mandatory statutory language, it appears unlikely that an evidentiary hearing is needed when, as in many cases, the amount is so small that it speaks for itself. It seems safe to assume that the magistrate makes his determination on the basis of the police record in some cases, although this suspicion has not been confirmed. In any event, if a hearing is held, Article 98 provides that the issues to be resolved are forensic in nature and require expert testimony. For example, a defense witness who is expert in the treatment of drug dependence may testify that the three grams of heroin seized was, in light of its purity and the defendant's tolerance, equivalent to a three days' supply of one gram per day. One forensic expert indicated that most magistrates have developed rules of thumb which vary significantly (e.g., 2 grams to 10 grams) from court to court.

In summary, neither the drug enforcement authority, nor the Ministry of Justice has issued any guidelines as to the meaning of "small amounts." Nor has the law been in effect long enough either for any patterns of magistrate and judicial behavior to become visible or for the appellate courts to have become involved. At the present time, only a survey of local attorneys and magistrates could be expected to provide information regarding current practices.

Some Perceived Problems

Italian officials and experts have pointed out features of the law which have generated difficulties in implementation. The first is the generic problem of distinguishing "correctly" between possession for personal use and possession with intent to distribute. One judicial expert pointed out that many retail dealers were undoubtedly carrying only "small amounts" at any given time to assure that their conduct appears to be nonpunishable under Article 80 if they are detected.3' Of course, if the police have adequate extrinsic evidence of trafficking, the fact that the amount seized was small does not preclude prosecution under Articles 72 or 71. It is interesting, in this connection, that the DAD official did not raise this problem. In fact enforcement efforts have been substantially more productive since the new law went into effect.

Enforcement data clearly show that the police have devoted more attention to trafficking and especially heroin since the new law established a drug enforcement agency (DAD) to coordinate the activities of the three national police forces. A DAD spokesman indicated that even before the new law was passed, a consensus had emerged regarding the inappropriateness of incarcerating users and that the police had already adopted a passive approach toward the enforcement of the consumption-prohibitions. Nonetheless a comparison of 1975 and 1976 seizure data is instructive. While the police seized 13,634 kilograms of heroin in 1975, this figure rose to 75,763 in 1976. Similarly, the seizures of cannabis and its derivatives also increased considerably, and in fact doubled from 763,397 kilograms in 1975 to 1,482,179 kilograms in 1976.

Another concern about the law involves the line between the consumption-related behavior which is not punishable under Article 80 and the commercial behavior which is punishable under Articles 71 and 72. All observers emphasized the well-known fact that most addicts also engage in retail dealing to some extent as a means of financing their own habits. On the face of the law, Parliament has provided that the addicted dealer is subject to the full rigors of the criminal process. Although the sanction is less severe for "small" dealers than for commercial traffickers (another judgment which the magistrate must make on a case-by-case basis), incarceration is the prescribed penalty for "small" dealing under Article 72 and defense attorneys have begun to utilize various legal devices to mitigate the penalty in such cases (e.g., partial responsibility arising from "chronic intoxication"). Of course, this is not a difficulty unique to the Italian law. Drawing a line between use and consumption-related trafficking is a generic problem.

Another problem with implementing the law concerns the recalcitrant patient. One treatment expert estimated that the dropout rate in the public treatment centers was between 40 percent and 50 percent. As in the treatment of mental illness, there are inherent limits to the capacity of the "commitment" process to intervene if a patient drops from an outpatient program. Some experts are apparently arguing that the criminal process should be reinstated in such cases—that in effect the offense should be "punishable" and that the law, as in France, should only establish a "diversion" process. Others are arguing that it is impossible to compel a "cure" in any event and that penalization is not a suitable alternative to a voluntary treatment strategy. This issue is currently unresolved.

At present the major difficulty in administering the law is that the medical and social welfare centers, and the associated treatment programs, which the Parliament contemplated as alternative means of social intervention, are not yet available. The 1975 law regionalized the responsibility for drug abuse (and alcohol) treatment, directing regional committees to establish treatment and prevention programs. Ultimately the Ministry of Health is required to create the clinical facilities if the regional committees fail to do so. All observers emphasized that regional facilities are in widely varying stages of development during this transitional phase. Police officials who are sympathetic to the guiding philosophy of the law nonetheless emphasized that it is difficult to withdraw the criminal enforcement apparatus when the therapeutic alternative has not been adequately established.

Summary: The Meaning of Decriminalization in, Italy

The major innovation in the Italian law is the substitution of non-penal measures under Title XI for criminal punishment. The key provision is Article 80. Under this provision the criminal process must be initiated against any person apprehended for possession or use of prohibited drugs. If the magistrate determines that the person did not possess the substance for his own use or possessed more than a small amount, he is expected to order the person arrested and to notify the prosecutor for initiation of the customary criminal process. Only when a magistrate (or a judge) has determined, in a given case, that the amount seized was small and was possessed for the person's own use, can it be said that the person's conduct was not a "crime" and hence, not punishable. From this point, the person's involvement in the criminal process has no legal effect. Although the criminal charge provides the legal device for notification. of the medical and social service authorities, any subsequent coercive intervention must be based on the legal principles which govern civil commitment.

Because criminal sanctions are not imposed regardless of the outcome of the treatment process, it is reasonable and accurate to characterize the Italian scheme as having "decriminalized" consumption-related behavior. On the other hand, this conduct is not entirely immune from penal consequence. First, the person's apprehension is formally documented in a police record which is accessible to the police and may be accessible to third parties. Second, although the person is not the subject of a criminal judicial record in the ordinary sense, there will be an official record of the proceedings. Third, the person's involvement in the criminal process is, in every case, brought to the attention of the medical and social service system. Fourth, the person is not immune from any formal legal intervention arising out of his relationship with the medical and social service center.

These "derivative" consequences of apprehension do have "penalizing" effects, hence, presumably, they have preventive and deterrent value. Thus, the Italian scheme represents a unique and creative effort to implement a policy of "discouragement without criminalization." Moreover by employing the criminal process as a device for detecting users of illicit drugs and assessing their need for treatment, the law also represents a unique effort to achieve outreach while minimizing coercion. Both aspects of the Italian scheme merit continuing study and consideration.

SWITZERLAND

Major revisions to the Swiss Narcotics Law of October 3, 1951 were adopted on March 20, 1975. In general, these modifications increased the penalties for trafficking, reduced and substantially modified the penalties for consumption-related offenses, and revised the basic legal contours of the process of treating drug-dependent persons.

Background

The process which culminated in the enactment of these revisions began in 1968 when the government proposed a series of amendments in connection with ratification of the Single Convention (which was ultimately accomplished on January 23, 1970) . After these amendments were enacted and in anticipation of the amending protocols to the Single Convention, the Narcotic Commission, an interdepartmental agency of the Swiss government, initiated a prolonged process of reassessment and revision in December 1970. The lead agency in the drafting process was the Pharmaceutical Division of the Public Hygiene Service, which submitted a first draft to the Commission in December 1971. The Narcotic Division completed its draft in November of 1972 and submitted the proposed legislation for comment to the cantonal authorities and 18 private interest groups, including the pharmacists, physicians, and pharmaceutical companies. After these comments were received, a final draft was presented by the Secretary of Health to the full cabinet, and the government presented the bill to the Parliament in its message of May 9, 1973.32

As was true in most European countries, data concerning the incidence and patterns of illicit drug use in Switzerland are sketchy and impressionistic. Apart from an old two-year study based on Armed Forces entrance exams and a few doctoral dissertations, there are few sources of hard information.33 However, based on seizure patterns and clinical reports, informed observers believe that illicit drug use has increased considerably in the last several years. Hashish is the most widely used illegal drug but opiate use is increasing. The Public Hygiene Service estimates that there are some 20,000 drug-dependent persons in Switzerland ; this figure includes persons heavily involved with all illicit drugs (all classified as "narcotics" under the law) . Heroin addiction is thought to have tripled since 1971, now approximating 13,000 addicts.34 The Swiss authorities estimate that 650,000 Swiss francs ($260,000) are spent on illicit drugs daily. Swiss experts have concluded that their patterns of drug abuse lag about one to three years behind those which emerge in the United States, although on a considerably smaller scale.

Penal Provisions of the 1975 Act

As indicated earlier, the 1975 law completely revised the penal provisions concerning both trafficking and consumption-related offenses. In contrast to the laws of many other countries, including the United States, Great Britain, and Italy, the penal provisions are not in any way linked to the regulatory classification of the drug. All controlled substances are classified as "narcotics"—this includes the opiates, cocaine, cannabis, hallucinogens, and amphetamines ; barbiturates are not controlled.33 Under the penal provisions (Article 19) the sole device for "grading" offenses is the seriousness of the offender's conduct, not the characteristics of the drug.

Penal Sanctions Under Swiss Law

As in France, offenses are generally classified into crimes, délits, and contraventions. Generally speaking, the distinction between crimes and délits appears to have little legal significance, since the penalties differ only slightly and the record-consequences do not seem to differ at all. They both refer to serious criminal offenses in Anglo-American terminology. In contrast, contraventions resemble "civil" offenses and are generally employed in connection with federal regulatory offenses and with cantonal offenses such as illegal parking.36

The basic distinctions in Swiss penal law are drawn according to the types of penalties available upon conviction ("condamnation") . Deprivations of liberty are classified as réclusion, imprisonment, and arrêts, which are defined by Articles 35-39 of the Penal Code. "Réclusion," the most grave penalty involving deprivation of liberty, is served under the most rigorous conditions and may be ordered for not less than one year or more than twenty years. "Imprisonment," in contrast, may be imposed from a minimum of three days to a maximum of three years, unless the particular substantive law provides otherwise.37

The least severe penalty involving deprivation of liberty is the "arrêts" which may be imposed for any length of time between one day and three months. Article 39 of the Penal Code specifically provides that if the substantive law authorizes either imprisonment or a fine, the judge may impose detention by arrêts, the intermediate sanction. The distinction between detention by arrêts and imprisonment is a crucial one. The detention by arrêts must be served in local special institutions (similar to jails) where confinement need not be continuous ; offenders are authorized to be released for continuation of employment, spending only nights and weekends in detention.

Generally speaking, contraventions are usually punishable only by fine, though detention by arrêts is also possible in some cases. Délits and "crimes" are usually punishable by imprisonment or réclusion, although such sanctions are usually not mandatory. Another crucial distinction between contraventions on the one hand and crimes or délit offenses on the other pertains to their respective implications for the criminal record system. Any conviction for a crime or délit must be reported to the cantonal and federal record bureaus, regardless of the gravity of the penalty actually inflicted. However, contraventional violations of cantonal ordinances need not be reported at all and contraventional violations of the Swiss Penal Code or other federal laws need not be reported unless they involve the imposition of a penalty of arrêts or a fine of more than 200 Swiss francs ($80).38

Trafficking Provisions

Under the old law consumption and trafficking offenses were not distinguished in terms of penalty: all offenses were punishable by "imprisonment" for up to two years and by a fine of up to 30,000 Swiss francs ; in "grave case" cases (involving "dessein de lucre") "réclusion" for up to five years was permitted.

Under the new provisions, as they appear in paragraph 1 of Article 19, the maximum penalty for the ordinary trafficking offense is three years' imprisonment and/or 40,000 Swiss francs." However, the new law increases the penalty for "grave" offenses to a mandatory minimum sentence of one year of réclusion or imprisonment and increases the maximum penalties to 20 years' réclusion and/or a fine of 1,000,000 Swiss francs. This is the heaviest penalty authorized by Swiss law for any offense.

Paragraph 2 of Article 19 enumerates grave cases by way of example, not by definition, indicating that the types of cases contemplated are those (a) involving a large enough quantity that the offender must have known that his act put many people in danger or (b) involving organized trafficking, or (c) involving "professionals" who aim for a large volume of sales or a considerable profit. It is notable, in this connection, that the definition of a grave offense, and therefore applicability of the more serious penalty, is entirely within the discretion of the courts ; even these illustrative concepts demand judicial interpretation of the law as well as factual determinations in particular cases.

Consumption Provisions : Background

Under the old law, the acts of possessing, having within one's control, buying or otherwise acquiring proscribed drugs were all prohibited and, on the face of the law at least, were punishable by the same penalties as the trafficking offenses of offering, distributing, selling, etc. However, the act of using or consuming was not a punishable act. Although this may not seem to be an important point to those acquainted with Anglo-American criminal law, it has a crucial significance for understanding the evolution of the consumption-related provisions of the new Swiss law.

Under Anglo-American drug laws, the act of possessing the drug, even for one's own use, has traditionally been an offense under all state and federal drug laws at least since the 1930's. While the act of use, in itself, may or may not have been an offense, this was generally not relevant to the meaning of the term "possession." That is to say, a person who has used the drug has also possessed it and acquired it previously. Thus the act of use also establishes the act of possession. (If both acts are prohibited, the offender could probably be charged with both of them, although the lesser "offense" may have been "included in" and merged with the greater offense under the jurisprudence of an individual jurisdiction.) And the act of possession is an offense regardless of whether the person intended to use it himself or pass it on to someone else.

Under the terms of the old Swiss law, as indicated earlier, the acts of possessing, having, buying or otherwise acquiring were all punishable acts, regardless of the intention of the actor. Yet, it was argued that in light of the fact that the act of consuming or using was not an offense, a person who was apprehended while in the act of using could not be punished for the previous acts, which had then ceased, of acquiring, having or possessing the drug. In other words, because consumption was not, in itself, punishable, the law did not permit the user to be punished for the antecedent illicit acts. The federal Supreme Court rejected this argument in 1968, holding that the consumer did not become immune from prosecution for his previous offenses simply because consumption was not a punishable act. In the case before it, the court upheld the conviction of a young man who accepted ("acquired") a marijuana cigarette purely for smoking after it had been prepared by someone else. Although it might seem perfectly acceptable under Anglo-American jurisprudence for such a conviction to stand, the Swiss Supreme Court was charged with hypocrisy for having distorted the definitions of the punished conduct.

This decision necessitated at least some change in the law ; all agreed that the consumer should not be punishable by a two-year term of imprisonment, which was the consequence of the court's ruling. But there was no agreement about what should be put in its place. Some argued that the user should be entirely "decriminalized"—that use and all the antecedent acts intended for personal use should not be punishable offenses, and entirely non-penal measures should be substituted to deal with those in need of treatment. Others, especially the police, insisted that most users were also dealers and that decriminalization of consumption-related behavior would inhibit the enforcement of Article 19 against traffickers by opening large loopholes.40 The result was a compromise41 —a substantial reduction in maximum penalties for any consumption-related behavior, specific authorization for a variety of non-punitive dispositions and, apparently, a full decriminalization of offenses involving insignificant amounts. The reasons for the use of this qualifier ("apparently") will become clear below.

Article 19a

Article 19a provides :

1. Any person who intentionally consumes drugs without lawful authority or any person who has violated Article 19 to assure his own use is liable to punishment by arrêts or by a fine.

2. In benign (minor) cases, the competent authority may suspend the proceedings or waive the imposition of a penalty. A reprimand (warning) may be pronounced.

3. It is possible to waive the criminal process whenever the offender has already submitted to treatment for drug use or if he agrees to do so. The criminal process may be reinstituted if he interrupts the treatment.

4. Whenever the offender is drug dependent, the judge may order him to be hospitalized. Article 44 of the penal code is applicable by analogy.

Paragraph 1 provides explicitly, as the Supreme Court's ruling had implied, that consumption, in itself, is a prohibited act. At the same time, the penalty for consumption, and the antecedent acts prohibited by Article 19, is considerably reduced—to a maximum of 3 months in jail (arrêts) or a maximum fine of 5,000 Swiss francs. In its message to Parliament, the government referred to these as "contraventional penalties," although one assumes that the offenses themselves are délit offenses.42 This paragraph, in the Attorney General's phrase, states "the ground rule." Each subsequent provision qualifies and circumscribes this general penalty provision "in the effort to refrain from regarding and labelling the consumer as a criminal."43 As the government put it in its introductory message, the subsequent provisions of 19a (and 19b) are designed "to realize a certain depenalization of consumption.""

Paragraphs 2, 3, and 4 are permissive. Each authorizes, but does not require, some variation of a non-penal disposition by the investigating magistrate, by the prosecutor or by the sentencing judge. The design of the provision anticipates that in each case the offender will be brought before the examining magistrate who may dismiss the case if he concludes that the case is a minor one. If the magistrate refers the case for prosecution, the prosecutor may take similar action. If neither the magistrate nor the prosecutor dismisses the case, the court may itself conclude that the case involves a minor violation and may waive the imposition of sentence. In such circumstances, no criminal record is established.

Paragraph 2 also authorizes either the magistrate who dismisses the case or the court which waives the sentence to combine these decisions with a reprimand or warning. The consequences of such a warning are not clear. The government's original draft of this provision authorized the use of a warning only if the offender had not previously been warned or convicted of a narcotic law violation.45 And the commentary contemplated that such orders would be formally recorded and transmitted to the central authority in order to assure that a single user would not be repeatedly warned but apparently would have no other legal effect.46 But the law as enacted does not limit the use of warnings to first offenders. This would imply that recordation was not intended, especially since the general legal principle under Swiss law is that warning is not a sentence and is therefore not part of the record.47 The Attorney General has argued, however, that the warning should be made formally, inscribed in the record and forwarded to the central office even though it is not included in the penal record. He argues that even fines of less than 200 Swiss francs—which, under general provisions pertaining to contraventions, are not recorded—should be reported to the central office.48 In both situations the pivotal issue is whether the drug use offenses are like contraventions which have no derivative record consequences or instead are délits which are punished like contraventions ; in other words, which, if any, consequences of criminalization still apply?

Read together, paragraphs 1 and 2 of Article 19a constitute a creative effort to formulate noncriminal sanctions for consumption-related behavior. The generally applicable penalty employs the least severe sanctioning scheme available under Swiss penal law although the offender is subject to 90 days in jail and a criminal record. But paragraph 2 empowers the examining magistrate, the prosecutor, and the sentencing court to employ "less criminal" sanctions in "minor" cases involving "simple users"—involvement in the criminal process and a warning.

It bears emphasis that the Swiss reform did not substitute a mandatory diversion scheme based on "control" premises ; it retained the basic philosophy of a sanctioning system. Paragraphs 3 and 4 of Article 19a do invoke diversion concepts but they are permissive, not mandatory as in France and Austria.49 Paragraph 3 authorizes the magistrate or the prosecutor to suspend the criminal process if the offender is enrolled in a treatment program or if he agrees to enroll in one ; the law further provides that the process may be reinstituted if the offender fails to participate satisfactorily in the program.

Paragraph 4 of Article 19a specifically provides that the judge may order a drug-dependent to be hospitalized for treatment."

Article 19b

To summarize, then, Article 19a essentially authorizes magistrates, prosecutors, and judges to employ, in their discretion, a wide variety of penal and quasi-penal measures against users, including confinement in a local jail for a maximum of 90 days, or suspension of the process, with or without diversion, or a warning or no penalty at all. But Article 19b introduces a potentially significant substantive reform. It provides that

anyone who only prepares for personal use or permits others to use drugs together with him after having furnished the drugs gratuitously is not liable to punishment if only very small (insignificant) quantities are involved.

Even allowing for the rigidity of the translation, this is a very strangely worded provision. Three questions immediately arise regarding the meaning and effect of Article 19b. First, how does this provision, which appears to be a statement of substantive law, (X conduct is not punishable) relate to Article 19a, which stated that the same conduct is punishable, but authorized—and did not require—the use of a variety of non-punitive dispositions? Second, what conduct is "not punishable"—what does insignificant amounts mean, and how is this determined? Third, what are the procedural implications of saying that the conduct is not punishable when it is so vaguely defined? The first question will be addressed next and the others will be considered as part of a general discussion of the application of the new law.

There are three possible ways to resolve the apparent inconsistency between Article 19a, which declares the user to be punishable for consumption and all antecedent acts, and Article 19b which states that the user is not punishable
for specified conduct if insignificant quantities are involved.

The most logical interpretation is that it is not a punishable offense to use an insignificant amount of drugs or engage in preparatory conduct involving such amounts or to transfer, gratuitously, insignificant amounts to others for purposes of communal use. According to this interpretation Article 19a (1) defines a class of offenders who violate the various provisions of Article 19 only in connection with personal use. This provision says nothing about the amounts involved. Article 19a (2) goes on to carve out of this category the most "benign" cases of use, permitting, but not requiring, the cantonal authorities to stop short of the infliction of criminal penalties of any type. Article 19b then goes on to carve out an even smaller class of users—those who use, or prepare to use or give away, very small amounts. For the users in this class, Article 19b specifically mandates that no punishment shall be inflicted and does not leave the matter to the discretion of the cantonal authorities.

The problem with this "logical" interpretation is that it is not clearly reflected in the language of 19b: literally, this provision declares that the user is not punishable for "preparing" for use and for "permitting" communal use by making gratuitous transfers if "insignificant quantities" are involved. If Article 19b is given a literal interpretation, "use" remains a punishable offense. It can be argued that if the legislature had really intended to preclude punishment for use as well as antecedent activity, it could have used language similar to that employed in Article 19a. Thus, Article 19b could have provided expressly that "whoever uses drugs or commits an infraction of Article 19 in order to assure his own consumption is not punishable if insignificant quantities are involved." Instead the law refers only to "preparation" for personal use. This omission has led the Attorney General of Switzerland to endorse a restrictive interpretation of Article 19b:

When the amount of narcotic in question is insignificant, preparation for personal use and the gratuitous transfer of narcotics to facilitate the immediate and communal use of such narcotics is not punishable. Here are two examples : X receives a limited amount of hashish in order to enjoy it himself ; Y distributes small amounts of hashish at a party for communal use. Both, X and Y, have not committed a punishable act. It is otherwise, though, when after these preparatory actions consumption itself takes place : Then the provisions of Article 19a are in effect again.51

The problem with this restrictive interpretation is that it is difficult to imagine why Parliament would have drawn such a distinction. Why would Parliament provide that the act of consumption is punishable while the acts incident to consumption are not punishable? This turns the Supreme Court's decision under the old law on its head. In fact, it turns the entire logic of "depenalization" on its head : a user who purchases an insignificant amount of hashish for his own use, carries it around with him, takes it home, gathers his friends together and passes small segments around the room has committed no offense, presumably on the theory that it is socially unproductive to invoke penal sanctions for such minor use-related activity. But then when the match is lit And the hashish is smoked, each of these persons has committed an offense. Such an interpretation may be consistent with the language of the statute, but it defies logic.

A third interpretation is also possible. It is conceivable that the Parliament simply did not mean what it said. That is to say, the legislators may have intended to authorize punishment of the user by arrêts or fine in all cases under Article 19a. Article 19b may simply have been intended to prevent punishment for more than one offense when a series of offenses culminate in consumption of small quantities ; or it may have been mistakenly included in the final draft when a revision to Article 19a accomplished its original purpose and made it superfluous.52 If, in either case, the Parliament really intended to authorize punishment of the user for either the consummated consumption or the preparatory act, Article 19b was, to say the least, unsuccessfully drafted. Unless it is ignored altogether, it does not authorize the punishment of a user who is apprehended only for purchase or possession of insignificant quantities. Even under the most restrictive interpretation, it does depenalize consumption-related behavior involving insignificant quantities preparatory to consumption.

Application of Revised Penal Provisions

Although the Swiss substantive drug laws are entirely federal, they are administered by the criminal justice agencies at the cantonal level. (This has been the case ever since the federal government superseded the cantonal drug laws by enacting the first narcotic prohibitions in the 1920's.)

Although the federal attorney general may initiate investigations and prosecutions in the more serious cases (for example, international trafficking or organized trafficking involving more than one canton) , even in these situations the case is transmitted to the canton for actual prosecution and processing through the criminal justice system. Less serious cases involving consumption-related offenses or retail trafficking are processed entirely at the cantonal level, where police, prosecutors, magistrates, and courts vary widely in their practices." For this reason, it is difficult to ascertain how the federal law applies in practice, and this remains so even though the drafters of the new law intended to reduce this variation, especially through Articles 19a and 19b.

Nonetheless, published statistics and the observations of government officials can provide a general impression of emerging trends regarding police enforcement practices and priorities, police charging and release practices, and the interpretation of Articles 19, 19a and 19b by magistrates, prosecutors, and courts.

Police Enforcement Practices

Comparison of the police arrest and seizure statistics for the years 1975 and 1976 suggests that there has been a greater concentration on trafficking enforcement, especially for the opiates and cocaine, although more than half of the arrests involve only consumption-related behavior.

On the one hand, as Tables 5 and 6 show, the proportion of all seizures which involved heroin increased from 12 percent to 16 percent and the proportion which involved cocaine increased from 1 percent to 11 percent. (The proportion of
seizures which involved cannabis dropped from 69 percent to 61 percent.) Apparently, the seizures involved significantly larger quantities as well : seizures of cannabis increased from 104 kilograms to 200 kilograms, and seizures of smoking opium increased from one kilogram to 22 kilograms ; while the quantity of heroin and morphine seized decreased somewhat, seizures of cocaine increased from 2 kilograms to 13 kilograms. On the other hand, the proportion of arrests which involved only consumption-related behavior remained relatively constant-63 percent in 1975 and 57 percent in 1976; conversely, the proportion of arrests which involved only trafficking remained small-6 percent in 1975 and 7 percent in 1976. See Table 7.

Table 8 shows the percentage of arrests which involved specific drugs ; because a significant number of arrests involved multiple seizures, the totals are not additive. However, it is possible to get a general impression of any emerging patterns. Most arrests for consumption-related behavior still seem to involve cannabis products. Ninety-three percent of user arrests involved cannabis in 1975 and 87 percent of user arrests involved cannabis in 1976. However, the proportion of user arrests which involved heroin increased from 25 percent in 1975 to 37 percent in 1976. For the most part, other drugs were represented in about the same proportions. The data on trafficking, however, reflect a changing orientation. The proportion of trafficking arrests which involved cannabis products dropped from 67 percent in 1975 to 59 percent in 1976, while the proportion of trafficking arrests which involved heroin increased from 29 percent in 1975 to 47 percent in 1976.

These data suggest that the depenalization of consumption-related behavior in the new law has induced a parallel reorientation of police enforcement practices, one which can be expected to become more discernible in subsequent years.

Police Charging and Release Practices

Do the police apprehend the perpetrators of all detected violations, whether or not they appear to involve purely consumption-related behavior? Looking only at Article 19a, it is clear that the legislature intended for the police to report all violations to the examining magistrate ;54 only then do the discretionary provisions of the law come into play. Where Article 19b is concerned, the police responsibility is unclear. The Attorney General has stated that if a clearly insignificant quantity "is in question and the other conditions of Article 19b have been met, the police themselves may waive prosecution on their own, since no punishable offense has been cornmitted."55 On the other hand, a spokesman for the Swiss central police bureau stated that the cantonal police have been "directed" to report all detected offenses. Actual practices are entirely unknown at this time.

Assuming a detected violation is to be reported to the magistrate, the police may, according to the practices in their canton, release the person immediately, take him into temporary custody for booking or hold him for questioning for up to 24 hours. The Attorney General has pointed out that many cantons do not authorize detention, except in limited circumstances, if the offense is a minor one (not punishable by imprisonment), and for this reason immediate questioning is not possible unless there is evidence of a violation of Article 19.56 In any event, officials at the Swiss central police bureau indicated that the normal practice is probably to book the offender and then to release him.

Judicial Practices and Punishments

As is typical in continental criminal jurisprudence, the judiciary has a major role in the definition and grading of offenses under the Swiss drug laws. The statute requires magistrates and courts to draw lines between consumption-related behavior under Article 19a and commercial behavior under Article 19 and between unpunishable consumption-related behavior under Article 19b and punishable consumption-related behavior under Article 19a. The statute also authorizes the magistrates and courts to impose heavier penalties for "grave" violations of Article 19 and to impose lesser penalties (or none at all) for "minor" violations of Article 19a. Although all of these boundaries are equally ambiguous at the present time, particular interest has been expressed in judicial practices under Article 19b because their effect is not simply to distinguish between more or less serious offenses but also to declare what behavior is not punishable at al1.57 (It should be recalled, however, that the main distinction between Articles 19a and 19b lie not in severity of sanctions but in the mandatory application of one and the permissive nature of the other.)

Swiss officials predict that the meaning of Article 19b and the procedure which should be used in disposing of cases thereunder will not be resolved until a decision of a magistrate is appealed to the cantonal Supreme Court and ultimately to the federal Supreme Court. At the present, however, there seems to be no consensus about either of these matters, and federal officials have the impression that magistrates and courts are not invoking the provision and that warnings are routinely used in all cases involving consumption-related behavior.58

One observer suggested that the reason for this may be that the police, in fact, are not reporting the obvious "insignificant amount" offenses in many cantons because they are taking the law literally. Thus, in "clear" cases the police may be shutting their eyes to the violation and may well have been doing the same thing before the new law.55 However, as indicated above, Central Police Bureau officials denied that this was the case.

Little statistical information is available. The Chief of the Swiss Central Police Bureau reported that in 1976, 369 cases (just under 10 percent of the recorded offenses) were dismissed, mainly at the prosecutor's level—with the most frequently cited reason being lack of evidence. Given the number of consumption-related arrests (see Table 9 on p. 179), these data undoubtedly do not reflect the use of Articles 19a and 19b. This interpretation is supported by a recent survey of the magistrates in the canton of Zurich ; arrest statistics for each of the last two years indicate that the Zurich police make more drug arrests than the police in any other canton, and that Zurich accounts for approximately 20 percent of all the drug arrests in Switzerland. This survey indicated that a consensus has emerged among the magistrates in Zurich that the following amounts constitute "insignificant amounts" for purposes of Article 19b:

heroin-1 gram

morphine powder-1 gram

morphine tablets-10 grams

cocaine-1 gram

amphetamines-1 gram

smoking opium-5 grams

cannabis products-10 grams

hallucinogens-10 tablets

Article 19b and the Single Convention

It should be emphasized that possession or acquisition of insignificant amounts of illicit drugs for one's own use is not the only conduct which is declared to be non-punishable by Article 19b. In addition, gratuitous transfers to facilitate communal use is also not punishable if insignificant amounts are involved. As in United States federal law and many state laws, the Swiss law reflects the view that gratuitous transfer among groups of consumers is the functional equivalent of personal consumption. This is so even though the Swiss law makes public encouragement of drug use an imprisonable offense. Nonetheless, questions have been raised about whether the failure to punish all distributional activity violates Article 36 of the Single Convention.

It is worth examining this argument in some detail because a rigid interpretation of the Convention could inhibit the contemporary effort to formulate innovative sanctions and punishments to discourage undesired consumption-related behavior. As was noted above, Article 36 requires each party to adopt "such measures as will ensure that . . . possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage . . . shall be punishable offenses when committed intentionally. . . ." Although "possession" has been construed to mean possession with intention to distribute rather than possession for personal use, the meaning of the terms distribution, offering, delivery, etc. is not clearly established. On the one hand, it is clear that the terms sale and offering for sale include a commercial element by definition, but what about the terms distribution, offering, and delivery? Are they, like possession, to be construed to exclude a sphere of casual distributional activity which is incident to consumption? Or, instead, are they to be construed literally to require the punishment of all conduct which in any way facilitates the use of drugs for non-medical purposes by anyone other than the user himself?

Even if we assume that Article 36 does require the signatory to make all distributional activity "punishable," a compelling argument can be constructed that the Swiss law does indeed generate legal consequences which constitute punishments even though the law on its face states that the offense is not a "punishable" one. Here perhaps it is useful to distinguish between the operational effect of the law and its technical legal effect. Operationally, a person who possesses or acquires drugs for personal use or who gratuitously distributes drugs among friends is still subject to being arrested, charged, and booked and, possibly, subject to being detained. Further, an official report is supposedly compiled by the police and forwarded to the magistrate.

Under one view of current Swiss practice, a decision is not made regarding the punishability of the offense under Article 19b until the magistrate has reviewed the case, or even later. Thus the person is subject to the personal inconvenience, possible stigma, and trauma of involvement in the criminal process even if it is subsequently determined that his conduct was not punishable under Article 19b. This is so even though the person may not be subjected to a criminal penalty. In this sense the legal effect of Article 19b is exactly like that of Article 19a and similar provisions in many countries which declare that even though the offense is punishable, the court may withhold the conviction and punishment in particular cases.

The only procedural difference between the two provisions is that standards and behavioral indicia are provided by Article 19b, while suspension of the process is entirely within discretion of the judge under Article 19a. Also, the only distinction between sanctions imposed by processing under Article 19b and a "reprimand" under Article 19a is the absence of a formal record.

Thus, the Swiss may argue that even though the offense is declared to be non-punishable for purposes of the imposition of penalties, the sanctions which are provided for the conduct constitute "punishment" for purposes of the Single Convention.

Other Provisions of the 1975 Act

The new law completely revised and expanded the preexisting provisions concerning treatment. The former law simply authorized doctors and pharmacists to notify the cantonal authorities of the cases involving drug-dependent persons whenever they concluded that intervention was necessary in the best interest of the person or community. Similarly, it authorized the cantonal authorities to take "necessary measures" concerning drug-dependent persons. The new act revised the provisions concerning confidentiality, established guidelines concerning the development of treatment programs by the cantons, and established the basic legal framework for compulsory treatment.

Confidentiality

Under generally applicable Swiss law, client relationships with physicians, attorneys, and clergy are confidential and these persons may not be required to divulge information obtained from a client in the course of such a relationship. Article 15 of the new law extends a limited cloak of confidentiality to the relationship between a client and the official treatment agencies who are not obligated to initiate the criminal process or report any penal violation even though the client may have violated the consumption-related provisions of the law. Similarly, educators and welfare workers are not required to divulge the names of any person in their confidence whom they know to be a consumer of drugs." On the other hand, Article 15 of the new law also authorizes pharmacists, physicians, and the staff of public treatment and social service agencies to notify competent authorities "of cases of drug abuse whenever they believe, in their official or professional capacities, that this is required in the interest of the patient, his dependents or the community."

Treatment Services

Article 15a authorizes and urges the cantonal authorities to establish comprehensive treatment programs, involving private organizations if they choose to do so. (It should be noted, however, that the federal government does not undertake to subsidize those programs.) In addition, the cantons are authorized to require special licenses for any treatment agency which wishes to use narcotics (e.g., methadone) in the treatment of addiction. Informed federal officials believe that the cantons will be very restrictive in defining the conditions under which methadone treatment may be used. The authorization for special licensing was a departure from the customary traditions in Swiss law under which the medical profession normally has wide prerogatives in choosing the course of treatment.

Compulsory Treatment

Under Article 15b the cantons are also authorized to order compulsory hospitalization of drug-dependent persons, for either detoxification or treatment, as well as ambulatory care or post-hospitalization after-care.6I In deference to the human rights convention, the cantons are required, when formulating their provisions concerning compulsory hospitalization, to provide for appointment of a "representative" for the patient at the same time that hospitalization is initially ordered. This representative must be permitted to seek expedient judicial review and the court must be authorized to suspend the hospitalization order pending this review.

Public Advocacy of Drug Use

Among the list of crimes defined in Article 19 is :

Anyone who publicly advocates the use of drugs or who publicly describes how to obtain or consume them [is punishable by imprisonment or fine].

The government's message to the Parliament in 1973 indicated that this provision was inspired by the World Council of Friends of Children who requested the prevention and prohibition of publicity encouraging the use of drugs. The government noted that Austria, France, and Monaco had recently adopted similar provisions, and that in other European countries the question was being studied. The Attorney General subsequently stated that the purpose of the provision was to "bring to justice Drug Disciples such as the famous Timothy Leary."62 No information is available regarding the application of this provision.

Medical Use of Opiates

The amendment to Article 8, paragraph 5, of the law provides that if it is consistent with international obligations, the federal public hygiene service may, in exceptional cases, authorize heroin and hallucinogens to be utilized for limited medical purposes.

At the time the Parliament was considering the government's draft of the new law, an English publication apparently advocated the use of heroin in the treatment of pain and the psychic distress of terminal cancer patients. One legislator asked the government for its position on this development. Although the government was wholly skeptical about the report and remains opposed to any medical use of heroin, it did agree, in response to the emotional sentiments which had been aroused in the Parliament, to accede to the inclusion of a clause directing the government to "study" the possibility. However, due to a misunderstanding, the word "study" was left out and the amendment actually enables the Federal Public Hygiene Service to grant special licenses for the use of heroin and hallucinogens for limited medical purposes, if this is in conformity with the Single Convention. The government, as indicated, has no intention of doing so.

Summary: The Meaning of Decriminalization in Switzerland

The Swiss law includes a unique effort to ameliorate the traditional criminal penalties for consumption-related behavior. Even if Article 19b is ignored altogether, the 1975 Act sharply reduces the maximum penalties for illicit drug use and any antecedent acts. Although "criminal" sanctions are still permitted by Article 19a—a 90-day jail term and a criminal record--the Parliament clearly anticipated that the sanctions actually imposed would be considerably less severe. The preferred sanctions for "minor" violations appear to be either waiver of prosecution, waiver of sentence or a warning, none of which involves an official record. Moreover, if the offense is regarded, legally, as a contravention (the equivalent of a petty offense or an infraction) rather than as a délit (crime), no official record is created even if the person is sentenced, so long as the penalty is not confinement or a fine in excess of 200 Swiss francs ($80) . In practice, then, consumption-related offenses for all drugs may have been "decriminalized" in the same sense that cannabis offenses have been decriminalized in several states of the United States.

Moreover, under Article 19b some offenses involving insignificant amounts may have been depenalized altogether. Even though the scope of this unique provision is unclear, the Parliament appears to have intended to preclude the imposition of any penalty for some type of consumption-related behavior—possession or acquisition of very small amounts for personal use and gratuitous transfers to facilitate communal use. However, as long as detected users are apprehended and referred to magistrates for determinations of non-punishability, the actual effect of Article 19b is not substantially different from a systematic use of the non-penal dispositions authorized by Article 19a. Since some "sanctions" are thereby imposed, (apprehension, involvement in the criminal process and possibly a formal record of involvement) "decriminalization" may be a more accurate description of the operational effect of Article 19b at the present time.

Finally, it should be emphasized that the main thrust of the 1975 reform was to revise and adjust the penal (sanctioning) model, not to substitute a medical/control model of intervention. The Act does authorize diversion and expressly permits termination of the penal process in favor of civil commitment under the generally applicable provisions, but these are merely ancillary features. The main feature is the effort to create less severe penalties as alternatives to the traditional—and frequently counterproductive—uses of confinement and stigmatization. It is in this respect that the application of the Swiss law merits continuing review.

THE NETHERLANDS

The most recent revisions of the drug laws in Holland were adopted on June 23, 1976, and came into effect on November 1, 1976. These provisions essentially reduced the penalties for consumption-related offenses and increased the penalties for trafficking offenses. The revised law provides a general outline of Dutch policy but the most accurate description of current policies is found not on the face of the law itself but in the official statement of the Ministry of Justice and the Ministry of Public Health and Environmental Hygiene. This is not a usurpation of legislative power, however, for it is customary, under Dutch law, for the legislature to paint only broad outlines and for executive officials to make penal policy.

Background

The Dutch drug laws date from the Act of May 12, 1928, which was enacted in the wake of an international opium treaty in 1925. Until the most recent amendments, intentional acts in violation of the 1928 Act, including possessing, holding or using, as well as trafficking, were punishable by a term of imprisonment up to four years or by a fine not to exceed 3,000 guilders ($1200) . As will be explained in further detail below, this is the typical penalty for criminal offenses of all descriptions—a maximum of four years.

Beginning in 1972, the government of the Netherlands began to formulate explicit policies regarding drug abuse and to recommend specific legislative changes to implement these policies. For this reason, the governing philosophy for the revisions of 1976, as well as current Dutch policies, may be found in a series of Parliamentary documents : the report of the narcotics working party issued in early 1972, a memorandum of July 4, 1972, sent by the Minister of Public Health and Environmental Hygiene to the Second Chamber, entitled "Background and Risks of Drug Use," and finally, a message, dated January 4, 1974, from the Minister of Public Health, and Environmental Hygiene, the Minister of Justice and the State Secretary of Culture, Recreation and Social Welfare. In the latter message, the Cabinet ministers stated specifically that:

. . . The emphasis of policy should fall on combatting traffic in drugs which entail an unacceptable risk.

As regards the chronic use of these drugs, the government is of the opinion that other possibilities should be sought than those offered by criminal law for giving the user the aid which he needs.

The government has given deep consideration to policy on cannabis products.

The use and possession for personal use of cannabis products should be removed as quickly as possible from the sphere of criminal law. However, for the time being, that is not feasible, since it would bring us into conflict with our obligations under certain Conventions. The government will investigate in international consultation whether it is possible to amend in particular the Single Convention in such a way that national States are free to introduce a separate system for cannabis products if they so wish. Meanwhile, it will be further investigated how the dangers that the use of cannabis products may present for road safety can be coped with.

The message went on to urge that the penalties for possession for personal use of cannabis products be reduced from a felony to a misdemeanor as soon as possible and that penalties for trafficking in drugs be differentiated according to the risk inherent in the use of these drugs. Specifically, the Cabinet recommended an increase in penalties for trafficking in amphetamines and a decrease in penalties for dealing in cannabis products.

The Parliamentary process initiated by that message culminated in the amendments of June 23, 1976.

The 1976 Revisions

Apart from its regulatory provisions, which tightened the control over the distribution of opiates and amphetamines, the new law considerably increased the penal sanctions for illegal trafficking in drugs other than cannabis products : the maximum penalty for international illicit trafficking is now twelve-years' imprisonment and a 250,000-guilder fine, and the maximum penalty for domestic trafficking is now eight-years' imprisonment and a 100,000-guilder fine. On the other hand, the new law reduces the penalties for domestic trafficking of cannabis products (marijuana and hashish), the maximum term of imprisonment being reduced from four to two years.

(The sanction against international trafficking remained four-years' imprisonment.)

With regard to consumption-related behavior, the law distinguishes between cannabis products and all other controlled drugs. With regard to other drugs, the bill reduced the maximum penalty to one-year's imprisonment and a 500- guilder fine. With regard to cannabis, a separate sanction was introduced for possession for personal use—a maximum detention of one month or a maximum fine of 500 guilders. (Article 11, paragraph 1.) The bill specifically provides that possession of up to 30 grams is conclusively regarded as possession for personal use. (Article 11, paragraph 4.)

The increased penalties for international trafficking and domestic trafficking in drugs other than cannabis generated no opposition. However, members of the Liberal and Christian Democratic parties (on the right) opposed the government's proposals to reduce the penalties for cannabis offenses ; they preferred to retain the customary four-year maximum sentence. Ultimately, the government's original proposals prevailed, but only after several symbolic amendments, to be explained below, had been adopted, and only after the Second Chamber overwhelmingly defeated the government's efforts to secure Parliamentary endorsement of its effort to amend the Single Convention to permit liberalization of domestic cannabis controls.

A large majority of the Second Chamber approved the bill on March 9, 1976. The First Chamber adopted it without amendment several weeks later. As indicated above, the law included two amendments which had been proposed from the floor of the Second Chamber. The first, modeled after the provisions in the French, Italian, Austrian, and Swiss legislation, prohibits publicity aimed at promoting the sale and use of all illicit drugs, including cannabis, except for medical or scientific purposes. This offense is punishable, as are all criminal offenses, by up to four-years' imprisonment and a 50,000-guilder fine. Apparently, this amendment was sparked in part by a weekly radio broadcast in which the son of the Minister of Health (Vorrink) announced the market prices of drugs. The Justice Minister (van Agt), who opposed the amendment on behalf of the government, nonetheless was careful to note that the Vorrink broadcasts were not intended to promote drug consumption and therefore would not violate the provision in any event.

The second amendment maintained the existing four-year maximum penalty for taking cannabis products inside or outside Dutch territory (the government's proposal would have included these import and export prohibitions in the class of conduct which would have been punishable by only a two-year maximum penalty.) This amendment was apparently inspired by pressure from Swedish officials who had argued to members of the Dutch Parliament that the liberalization of the possession penalty in Holland would result in an increase of cannabis use in all of the neighboring countries. This amendment, agreed to by the government, was designed to quiet these objections.

Declared Policy Toward Consumption-Related Behavior

If one were to look only at the specific provisions of the 1976 Act, it would appear that the penal provisions of the law regarding consumption-related behavior are similar to the provisions in most of the states of the United States. That is, the penalty for possession for most drugs appears to be the equivalent of a misdemeanor (up to one year in jail) and the penalty for cannabis offenses appears to be similar to a petty misdemeanor (up to 30 days in jail). However, it is clear from official pronouncements as well as from an understanding of Dutch penal law and its allocation of decisionmaking, that the words of the law tell only a small part of the story.

As a "formal" matter, the Dutch criminal code does not appear to create a distinction among more serious or less serious crimes similar to the Anglo-American distinction between felonies and misdemeanors or indictable or non-indictable (summary) offenses. Instead, crimes ("misdrijf") are usually punishable by at least four-years' imprisonment, arrests may lead to pre-trial detention, and convictions are automatically entered into the record documentation system where they must remain recorded for at least four years. This is true of virtually all offenses, including those customarily classified as misdemeanors or summary offenses under Anglo-American law, such as drunkenness, disorderly conduct, shoplifting, and other forms of petty theft and pornography offenses.

As a matter of actual penal practice, however, this all-encompassing formal definition of crimes is somewhat beside the point. The exercise of police and prosecutorial discretion not to "report" offenses, to terminate cases short of conviction, and to define penal policy is a central feature of the administration of criminal justice in The Netherlands. Such discretion is exercised under explicit guidelines issued by the Ministry of Justice which exerts hierarchical authority over public prosecutors. As a result, the "grading" of offense/seriousness, which is normally accomplished to a large degree by legislation in the United States and in Great Britain, is a function exclusively allocated to prosecutors in The Netherlands.

The Dutch Parliament's revision of the cannabis laws in 1976 appears to have created something of a unique status for possession for personal use. As a "formal" matter, the offense still resembles, in Anglo-American terms, a minor "crime"—it is punishable by up to 30-days' imprisonment or by up to a 500-guilder fine (about $200) , and records of convictions are still entered in the official documentation system. In this sense, then, the possession offense has not been "decriminalized." But this unique reduction63 in the penalty structure is thought to modify the penalty to a substantial extent so that the offense is regarded as no worse than, or only slightly worse than, a mere "overtreading.,P64

Again, however, the real story is not in the statutory classification but in the government's declared policy as implemented by prosecutorial decisions. The law was proposed by the government and enacted by the Parliament as a means of securing express legislative approval of a "decriminalization" policy. The government stated that it preferred no sanction at all but considered itself bound by the Single Convention to confiscate cannabis and, accordingly, considered itself constrained to retain a "criminal" offense punishable by imprisonment since confiscation would not otherwise be permissible under Dutch penal law. At the same time, the Ministry of Justice made it clear that the government had no intention of prosecuting consumption-related behavior. De facto decriminalization had, in fact, been achieved several years earlier.

The Justice Ministry's directive under the new law specifically provides that cultivation, distribution or possession of 30 grams or less of marijuana should not be investigated and if detected should be regarded only as a "transgression" and should be settled for 50 guilders ($20.00).

As far as cannabis is concerned, then, the government regards the recreational use of the drug as a relatively benign activity and does not wish to employ legal sanctions against the consumer in order to discourage its use. On the other hand, both the law and official policy distinguish between cannabis use and the problems of dependence and abuse which, under current patterns of consumption, are associated primarily with use of other illicit drugs. Here the policy is leverage, not sanctions. The government's official position, which was included in its message to Parliament in 1974, is that:

The introduction of a separate penal sanction for possession for personal use of drugs involving unacceptable risks (i.e., other than cannabis) is not motivated by the assumption that such use should be punished by law. The sanction will be used chiefly to induce drug-dependent persons where necessary to accept treatment. Emphasis is put, however, on voluntary enrollment in treatment programs.65

Accordingly, the Justice Ministry's directive under the new law provides that the definition of "a small quantity for personal use" should be left to the Ministry rather than being resolved by the police. "However," the directive continues, "it seems desirable to indicate, for the most prevalent drugs, the amount which can be considered to be 'a small quantity.'

The starting point here is the daily quantity the average user would need." Examples are given : half-a-gram of heroin, morphine, cocaine and methamphetamine and one trip of LSD. For possessing or crossing Dutch borders with small quantities as so defined, the Ministry declares that "assistance to the user should get priority," that there should be "no custody or preliminary detention" after detection and that ordinarily the prosecutor should dismiss the case (sepot) on the condition that the offender obtain treatment.

Current Enforcement Practices

Data concerning the numbers of arrests, prosecutions and convictions for drug-related offenses since passage of the new law, as well as actual sentences imposed on various types of offenders are not yet available. A spokesman in the Ministry of Justice indicated that since enactment of the new law, the number of arrests for consumption-related behavior has decreased considerably, reflecting a reorientation of police efforts toward trafficking offenses, especially those involving drugs other than cannabis. He also indicated that some police departments did not modify their arrest practices immediately, but that this initially reticent attitude was subsequently altered in response to prosecutorial pressure.

As was noted above, the Ministry of Justice exercises hierarchical control over all enforcement agencies, and the Ministry is currently developing prosecutorial guidelines for use in drug cases. A major focus of these guidelines will be to implement the structure of referral for treatment contemplated by the new act. Currently users who are detected are taken into custody for perhaps two hours, their drugs are confiscated and they are booked and released. To improve this situation, a steering group, including the Ministry of Interior, has been established to implement a coordinating structure at the central level to facilitate the formation of similar coordinating agencies at the community level. The government now plans to establish, experimentally, drug advisory committees in three judiciary districts with a view to providing advisory services for the district attorney's office regarding general enforcement and prosecution measures in that district. The advisory committees will be composed of experts in the fields of youth services, rehabilitation, mental health, education, and "alternative" treatment services.

For advice in individual cases brought up for prosecution, referrals will be made to the consultation bureaus for alcohol and drugs. The government has specifically declared that "the principle that the role of the penal law shall be reduced in parallel with the creation of effective alternatives for treatment and rehabilitation has found wide acceptance and will be implemented accordingly."66 As this indicates, the government considers the main function of the penal law with regard to consumption-related behavior (for drugs other than cannabis), to be the provision of leverage for participation in treatment programs, where voluntary entry has not occurred.67

Under the policies of the Ministry of Justice, enforcement activity is supposed to concentrate on major international trafficking, especially on the organized heroin trafficking by Chinese and South Molluccan groups.68 The only open question of enforcement policy deals with cannabis trafficking. Although the government is continuing its efforts to repress international trafficking, it is currently uncertain about the most desirable approach toward local dealing. For the most part, "house dealers" and small-time retailers in bars are left alone, as part of a generally tolerant attitude toward the youth counterculture. On the other hand, the depenalization policy has spurred considerable interest in taking the "next step"—legalization—and several house dealers have been particularly outspoken in their efforts to achieve official sanction for their activities. One dealer has gone so far as to seek a license to dispense cannabis for "medical" purposes. In so doing, he has drawn public attention to the gap between the "hands off" enforcement policy and the provisions of the law, under which domestic trafficking in cannabis is punishable by up to two-years' imprisonment. A special working group has been established to determine how to respond to this public embarrassment. Most informed officials predict that the government's response will be "the law is the law," the provocateur will be charged in order to publicly make this point, whereupon the preferred policy of desuetude will be implemented silently.

In its directive, the Justice Ministry provides that trafficking in amounts smaller than 30 grams should not be criminally prosecuted and should be processed, if at all, under the "use" provision. For more serious cases of trafficking, prosecution is directed, although sentencing policy is relatively lenient ("imprisonment possibly partly conditional and/or fine") .

International Repercussions of Dutch Policies

The liberalized attitudes of the Dutch are frequently blamed for spreading drug use in other European countries. In the past, UN officials as well as Swedish, West German and French spokesmen have been especially outspoken. For example, at a Conference of Directors of Criminological Institutes sponsored by the Council of Europe in 1974, a West German expert noted that "certain states such as The Netherlands [have] allowed de facto liberalization of hashish. The result was that several young people went to Amsterdam to obtain it. This example showed how liberalization in one country might have serious repercussions in others."69 In addition, as indicated earlier, the Swedes officially protested to a parliamentary mission from The Netherlands that they were concerned about the possible importation of drugs from The Netherlands. Nonetheless the 1976 revisions to Dutch law have not aroused visible international repercussions." This is probably because a liberalizing trend has clearly taken hold in Europe, and the recent Dutch laws merely codified the changes in policy which had been effected several years ago.

UNITED KINGDOM

Although the advisability of criminal penalties for marijuana use continues to be debated in the United Kingdom, recent legislative activity has thus far been confined to a relatively minor realignment of the penalties for possessory drug offenses in 1977.

General Background

The evolution of drug legislation in the United Kingdom paralleled that in the United States. The Dangerous Drugs Act of 1920 imposed controls on the opiates and cocaine, similar to those of the United States' Harrison Narcotics Act of 1914, implementing the International Opium Convention of 1912. Cannabis was first controlled in the 1925 Dangerous Drugs Act which recodified the earlier legislation. Between 1925 and 1971, some ten additional drug control acts were passed to respond to the abuse of succeeding generations of psychoactive drugs. As in the United States, the need for a new comprehensive scheme was recognized during the late 1960's.

The Misuse of Drugs Act of 1971 is the United Kingdom's equivalent of the United States' Controlled Substances Act of 1970. The act classifies "controlled" drugs into three classes (A, B, and C) according to their "relative harmfulness." The penal provisions, including penalties for both trafficking and consumption offenses are linked directly to the regulatory classifications. In general, the opiates, hallucinogens and cocaine are included in Class A; the oral amphetamine and codeine groups are classified, together with cannabis, in Class B; and the remaining stimulant, depressant and tranquilizing drugs are in Class C. As indicated, the penalty structure of the Act is carefully graded to distinguish between trafficking and consumption offenses and, within each offense group, between the three classes of drugs. A penalty chart appears in Table 10.

Simple possession of a Class A drug is punishable (a) on summary conviction by up to twelve-months' imprisonment or a 400-pound fine or both or (b) on conviction by indictment by up to seven-years' imprisonment or an unlimited fine or both. Simple possession of a Class B drug is punishable (a) on summary conviction by up to three-months' imprisonment or a 500-pound fine or both; or (b) on conviction on indictment by five-years' imprisonment or by any fine or both. Finally, possession of a Class C drug is punishable (a) on summary conviction by up to three-months' imprisonment or a 200-pound fine or both ; or on conviction on indictment by up to two-years' imprisonment or an unlimited fine or both. (As will be described below, the key drug law provision in the Criminal Case Bill of 1977 reduced the penalties for a summary conviction of possession of Class B or C drugs from 6 months to 3 months).

One of the consequences of the indictable status of possession offenses is that all possession offenses are "arrestable" offenses which means suspected violators may be arrested without a warrant. Thus they are the equivalent of "felonies" although this term is no longer used.

Proposals to Reform the Penalties for Cannabis: A Short History

During the mid-sixties, when the momentum for a comprehensive revision of the drug laws was being generated, the Home Office established a Standing Advisory Committee on Drug Abuse early in 1967. The committee included 23 members, 9 of whom were doctors. During the ensuing four years, until the enactment of the 1971 Act, the committee established several subcommittees which published reports on rehabilitation and health education, amphetamines, LSD and the powers of search and arrest.

In April, 1967, a special subcommittee was appointed to review the available evidence on the pharmacological, clinical, pathological, social and legal aspects of cannabis. This committee was chaired by the Baroness Wootton and the committee's report, generally referred to as the Wootton Report, was published in January, 1969.

The Wootton Report

The basic approach of the Wootton Report was very similar to that taken by the U.S. National Commission on Marihuana and Drug Abuse in its first report in 1972. On the one hand, the subcommittee recommended that restrictions on the availability of cannabis for nonmedical use should be retained, mainly because of the uncertainties regarding the effects of heavy long-term use. In this connection, the committee encouraged an expanded research program. On the other hand, the committee was also convinced that cannabis was much less harmful than was often assumed, that moderate usage appeared to have no harmful effect, and that the penal provisions for violations of the prohibition were much too severe. Thus, the committee recommended that cannabis violations be punished much less severely than those in connection with more dangerous substances such as heroin and that the law distinguish clearly in all respects between cannabis and other illicit drugs.

In particular, the committee recommended that the offenses of unlawful possession, sale or supply of cannabis should be punishable on summary conviction by a fine not exceeding 100 pounds or by imprisonment for a term not exceeding four months or by both. On conviction on indictment, the penalty should be an unlimited fine or imprisonment for a term not exceeding two years, or both. Further, the committee stated that possession of a small amount of cannabis should not normally be regarded as a serious crime to be punished by imprisonment. (The majority of the committee agreed to permit imprisonment for up to four months in order to assure that an offender had a right to a jury trial if he so desired ; apparently this would have been impossible under British law if imprisonment were not permitted.)

Even before the report had been released, the Home Secretary (later Prime Minister) Callaghan had indicated that he did not favor any liberalization of the law regarding cannabis.

Indeed after release of the report, both the Home Secretary and the opposition spokesman on Home Affairs indicated that adoption of the committee's recommendation regarding possession would make it appear that Parliament was condoning the smoking of cannabis.71

The Wootton Committee's recommendations are reflected in the 1971 Act only to the extent that cannabis was included in the Class B group and was, to this extent, separated for penal purposes from the opiates, cocaine and hallucinogens. When the 1971 Act was enacted, the government anticipated that no further drug legislation would be considered for at least a decade.

The 1971 Act established an Advisory Council on the Misuse of Drugs to monitor the patterns of drug use in the United Kingdom and to advise the Home Secretary and Ministers concerned with health and education on measures to prevent the misuse of drugs and to deal with related social problems. The Council is specifically mandated to advise on revisions of the law.

A working group was established almost immediately to consider the cannabis question. The group met for some two and a half years and ultimately produced two reports, both of which were "adopted" and sent to the Home Office. One recommended no further change and the other revived the Wootton Committee's recommendations. The Home Office took no position and the Advisory Council decided to suspend the activities of the working group for one year to permit a review and time for deliberation.

According to one of the more activist members of the Council, neither the Government nor the Council had any interest in penalty reform in general, or in reconsideration of the cannabis question in particular, until 1976. There was no momentum for further reform and considerable opposition remained.

New Pressures for Change

During the last few years, a sizeable constituency emerged in the House of Lords in favor of implementing the Wootton Committee's recommendations. Then, in late 1976, two events coincided to catalyze this growing support for change and to move the Parliament and the Home Office into taking a small liberalizing step.

The first was the consideration by the House of Lords of a general Criminal Law Bill which included a number of amendments to the substantive law. One of these amendments was a technical change of the penalties for drug violations which was intended to implement the recommendations of the James Committee concerning the penalties for the so-called "hybrid" offenses—those triable either summarily or on indictment. In general, the committee recommended that the maximum term of imprisonment upon summary conviction be six months. Under the logic of the James Committee's approach, this should have been the same penalty for possession of all drugs, whatever the schedule in which they appeared. But the Home Office concluded that because of the "educative role" of the penalty structure, considerations of drug policy required that the maximum terms of imprisonment for different drugs vary according to their classification under the 1971 Act. For this reason, the Home Office included in the criminal law bill a proposal to reduce the penalty on summary conviction for possession of a Class A drug to six months and for Class B or C drugs to three months. Although this was to some extent interpreted as a cannabis law reform, the government insisted that this was merely a technical revision having nothing to do with cannabis policy. Nonetheless, it did offer a vehicle for proponents of reform in the House of Lords to propose alternative revisions.

The second development which catalyzed the growing support for reform was a ruling by the Court of Appeals that possession of cannabis leaves alone was not an offense under the 1971 Act, and that the prosecution in a possession case therefore had to show that the defendant possessed part of the flowering or fruiting top of the cannabis plant.

The 1971 Act defines "cannabis" (except in the expression cannabis resin) as "the flowering or fruiting tops of any plant of the genus cannabis from which the resin has not been extracted." In the Goodchild case, the court held that this definition, derived from the Single Convention on Narcotic Drugs, (which specifically excludes seeds and leaves), did not include the leaves of the plant. Therefore, in prosecutions for possession of cannabis, the prosecution must establish that the substance in the defendant's possession was derived from the "flowering or fruiting tops" of the plant rather than the leaves, a test that requires expert botanical witnesses and a sample of cannabis greater than that usually involved in simple possession cases.

A great deal of publicity accompanied this decision. "Release," an activist reform group, called attention to the apparent loophole in the law, and some magistrates began to dismiss possession cases for failure of proof. On the other hand, the prosecution argued that cannabis possessors could be prosecuted for possession of a Schedule A drug ("cannabinol derivatives") since the leaves include THC. (Defense attorneys argued in response, that the leaves are not cannabinol derivatives because although they contain chemicals such as THC, the leaves are not identical with these chemicals.)

The government had to act to avoid either of two undesirable outcomes in the courts—either cannabis possession was not, in effect, an offense at all, or it was punishable as severely as possession of opiates. Thus, the Goodchild case generated an acknowledged need for corrective legislation and heightened the visibility of the cannabis issue. Given the opportunity offered by the Criminal Law bill, reformers in the House of Lords pressed for penalty reductions and the Advisory Council was forced into action once again.

In early 1977, Lord Gifford proposed that possession of cannabis or cannabis resin be punishable only by fine upon summary conviction. The Government argued that this amendment would permit an "anomalous" result—imprisonment would be available for possessing Class C drugs, in theory less serious than Class B drugs, while it would be precluded for possessing only one Class B drug. The Government also objected to the fact that the proposal would preclude imprisonment of recidivists. The amendment failed in March, 1977.

After this defeat, Lord Avebury proposed to preclude imprisonment of first offenders upon summary conviction for cannabis possession, and paired the amendment with a similar one pertaining to possession of Class C drugs, but not limiting it to first offenders. Thus Lord Avebury's approach was designed to maintain the conceptual order reflected in linkage of penal provisions to the regulatory provisions.

During the ensuing deliberations, the government spokesman made it clear that the government was not necessarily opposed to this amendment in principle, but simply on "technical grounds" relating to the whole question of the relationship between penalties for cannabis and those in connection with other drugs. The government argued that all of the complications raised by these proposals illustrated the difficulty of singling out cannabis from the otherwise integrated and consistent structure of the Act. In addition, the government also contended, with some reason, that important questions of penal policy were also involved. The result of proposals to preclude imprisonment for summary conviction was to broaden the disparity between the penalty available on summary conviction and the penalties available on indictment for the same offense. This of course raises the question as to why possession of cannabis or other drugs should be regarded as an indictable offense at all.

The government also argued in opposition to these various amendments that it was awaiting the advice and recommendations of the Advisory Council on the Misuse of Drugs, which had begun reconsidering the cannabis question. For several months, the Advisory Council was just as unable to achieve a consensus as had been true several years before. A cannabis working-group was concentrating on the actual amendments before the House of Lords and was not considering any of the general questions of principle which the government had identified. This group's initial recommendation was to reschedule cannabis as a Class C drug which could be done administratively through an "Order in Council." The consequence of this reform was simply to reduce the maximum penalty, to three months or 500 pounds, upon summary conviction. Meanwhile a "legal and administrative working group" was opposed to the rescheduling of cannabis.

At a meeting in mid-April of 1977, the logjam was finally broken, for a time. A majority of the Advisory Council voted in favor of a resolution that there be no imprisonment for a first offense of possession of cannabis, in essence endorsing part of Lord Avebury's proposal. But this recommendation stood alone; there was no effort to integrate the recommendation with the structure of the Act, or to confront the question of the penalties for possession of the other drugs in Schedule B or those in Schedule C. After having agreed tentatively on this recommendation, the Advisory Council sent both subcommittees out to do their homework again. As a result of this, the cannabis working group "retracted" its original recommendation and endorsed the concept of removing imprisonment for first offenders. On the other hand, the legal and administrative working-group hardened its position—opposing any change in the law at all.

Ultimately a "substantial majority" agreed to advise the Home Secretary that the Council was "of the opinion, that the penalty of imprisonment should no longer be available" in relation to a first offender summarily convicted of possession of cannabis, and that "appropriate changes in the law to give effect to this principle should be enacted at the earliest opportunity." But the Council went on to endorse the Government's position that the "earliest opportunity" was not right away and that the pending criminal law Amendments should "not be used for this purpose. . . ." Because "the question of amending the penalties in relation to cannabis . . . opens up much wider questions about the classification of controlled drugs generally, and the penalties applicable [,] . . . the Council proposes to initiate . . . a comprehensive review of the classification of drugs . . . and . . . penalties." Naturally the Government accepted the Council's advice. A subsequent effort to amend the bill from the floor of The House of Commons was defeated.

The Criminal Law Act of 1977

When the Criminal Law Act was eventually enacted, it reduced the prescribed penalties for summary convictions of possession of Class B and Class C drugs from 6 months to 3 months, achieving only the "technical" reforms desired by the Home Office. The Criminal Law Act also promulgated a new definition of cannabis, which included the leaves, thereby putting to rest the issue raised by the Goodchild case. The Home Office stated that it would have preferred to await the outcome of the case testing the proposition that cannabis possession prosecutions could be brought for possession of Class A drugs but acted on the Council's recommendation "to prevent the controls from falling to pieces or defendants from being penalized too heavily."72 This turned out to have been a prudent decision when the House of Lords subsequently ruled in Goodchild that cannabis possessors could not be prosecuted for possession of a Class A drug.

Comment

The flurry of Parliamentary activity in 1977 concerned a very narrow issue—whether a summary conviction of cannabis should be punishable by imprisonment, at least for a first offense. As a practical matter, very few first offenders get imprisoned anyway : a study conducted by the Advisory Council showed that only six first offenders were imprisoned for possession in 1975 and another six or so were imprisoned for possession in 1976. Indeed, not many cannabis offenders get imprisoned, regardless of their number of previous convictions. Table 14 (p. 213) presents the data for 1974, 1975, and 1976, showing that in each year about 600 persons were sentenced to immediate imprisonment, Borstal training centers or other detention centers.

No consideration has been given to removing the possibility of incarceration for possession of other drugs. No consideration has apparently been given to altering the "hybrid" status of a possessory offense under which a person can be charged on indictment and imprisoned for up to seven, five or two years, depending on the classification of the drug. Similarly, no consideration has apparently been given to altering the "criminal" classification of the conduct or ameliorating its consequences in any significant way.

But proposals to preclude imprisonment for cannabis possession have nonetheless assumed major symbolic proportions.73 The debate has all the earmarks of a major battle, even though the Wootton Committee had recommended the same reform eight years ago.74 Partly this is because the British rarely make long jumps when short steps are possible and, in the case of drug policy, any significant liberalization of the penalties is regarded as encouraging use. But it is also partly because criminal laws and penalties are fitted into a much more rigid structure than in the United States ; the criminal code is in the hands of technicians who must keep all the pieces in their proper places. For this reason creative ideas about sanctions, such as the use of civil fines for cannabis possession in the United States, run quite against the grain.

Current Enforcement and Sentencing Practices

Crime statistics for 1976 show that more than 94 percent of all drug arrests in the United Kingdom were for simple possession (12,167 of 12,968) and almost 80 percent of the possession arrests (9,674 of 12,167) were for possession of cannabis. In addition, roughly half of all trafficking arrests also involved cannabis. In sum, more than three-fourths of all drug arrests in the United Kingdom were for cannabis-related offenses (10,275 of 12,968) .75

Table 11 shows that a substantial proportion of cannabis seizures involved small quantities. For example, there were 3,835 seizures of marijuana in 1975, 1,505 of which (39 percent) were for under one gram. Although the figures show that another 1,928 (50 percent) were between one gram and under 500 grams (approximately one pound), the amounts are not broken down any further. There seems little doubt, however, that a substantial proportion of these must have been for under one ounce, given the number of seizures of under 1 gram. Similarly, of the 4,968 seizures of cannabis resin (hashish), 2,465 (50 percent) were for seizures of less than one gram and another 2,221 (45 percent) were between one gram and 500 grams. It should also be added that seizures of cannabis plants have increased significantly since 1972. In 1975, there were 5,290 such plants seized in the course of 436 seizures.

The Stop and Search Power

A major concern about police detection policy concerns the use of the "stop and search" power authorized by the 1971 Act. A police officer has the power to stop, detain, and search a person in his or her vehicle or vessel if the officer "reasonably suspects" that person to be in possession of drugs or other contraband.76 In other words, the officer does not have to establish "probable cause" that an offense is being committed—which would justify an arrest—in order to stop and search. This should be contrasted, in theory at least, from practices in the United States where a police officer may "stop and frisk" on suspicion but may not "search" a person unless he is doing so "incident" to an otherwise lawful arrest.

Because the police have no legal obligation to state the reasons for stopping and searching, it is difficult to pinpoint the possible abuses of this statutory authority. Vehement objections have been raised about the "stop and search" power mainly on the ground that this authority is used to harass minorities and "outsider" groups, especially young people with unconventional dress, long hair, etc., and that the police rarely have evidence other than these lifestyle characteristics that any drug law violation is being committed. These objections were initially raised in the late 1960's; more recently the reformers have argued that the stop and search authority is used to harass "squatters"— unconventional youth and hippie groups who tend to gather in abandoned buildings.

As a result of these allegations, a subcommittee of the Standing Committee on Drug Abuse was appointed during the late 1960's to assess the need for and alleged abuse of the stop and search power. In particular, the committee was directed to "inquire into the allegations of excessive zeal by the police," and to consider the contention that "the only reasonable ground for searching a person is specific information which leads the policeman to suspect that drugs are being used or carried."77 In its 1970 report, the Subcommittee summarized much of the evidence of misuse and abuse of the stop and search authority, but the majority felt that the drug problem was so serious that the police should be given maximum powers and should not be restricted in any way. However, the Subcommittee did recommend that the records should be kept on police searches and urged the police to accept the view that modes of dress or hairstyle do not by themselves constitute reasonable grounds to stop and search a suspected drug offender.

The minority of the subcommittee was in favor of repealing the police powers to stop and search altogether. On behalf of the dissenters, Professor Glanville Williams of Cambridge argued that a police officer who searched a person "merely because he was young, dressed unconventionally, carrying a case and out late at night would be acting illegally."

The stop and search authority of the 1967 Dangerous Drugs Act was perpetuated in the Misuse of Drugs Act of 1971, despite the objections which had been raised. However, in a slight acknowledgment of the allegations of abuse, the Home Office issued a directive to the police in 1971, stating that "hairstyle or mode of dress" were not by themselves or together "sufficient reasons" for stopping someone. But the objections have become even more forceful in the ensuing years. The Advisory Council on Misuse of Drugs has begun to gather as much data, both statistical and impressionistic, as possible preparatory to taking a position on the matter.

The official stop and search figures reported in Table 12 show that the likelihood that a search will result in a seizure of illicit drugs approximates one in four. For example, in 1974, 28 percent of the 15,000 searches made outside the London Metropolitan Police District resulted in arrests for possession; in 1975 24 percent of 4,000 such searches resulted in arrest for possession. Within London, the figures are respectively 41 percent of 5,500 searches in 1974 and 42 percent of approximately 5,200 searches in 1975. It should be emphasized that these are officially-recorded figures ; the portion of successful searches is in fact very much smaller than the official figures show. Undoubtedly, most stops and searches are not recorded at all and virtually all of the unrecorded ones did not result in any seizure. These data tend to support the contentions of the reformers that the police usually do not have adequate grounds for suspecting that the persons stopped and searched are in possession of illicit drugs.

Police Charging Policy

As in the United States, the fact that the police sometimes ignore detected violations is acknowledged in the United Kingdom. But this discretion is by nature invisible and it is difficult to estimate the frequency of non-prosecution decisions in drug cases. Observers have stated that the police in some urban areas routinely ignore cannabis offenses, but that, overall, most detected violators are charged.

Unlike the United States, the police in Great Britain also have a formally recognized authority to issue an official, recorded warning to an individual in lieu of proceeding against him by referring the case to a magistrate. However, although the "police caution" had been widely used in connection with alleged prostitutes, sexual offenders and young persons who have committed theft offenses, it is rarely used for drug offenses. For example, of approximately 12,000 persons arrested for simple possession of drugs each year, 3 percent were cautioned in 1974 and only 2 percent in 1975 and 1976. The figures for cannabis arrestees are identical.

It is difficult to explain why the "caution" device—which does not have the legal effect of a conviction—is not used more frequently in cannabis possession cases, especially when small amounts are involved. One possibility is that many offenders who would otherwise be cautioned are not being charged at all. But the caution figure seems too low even for this to be true. It is also possible that the Government's relatively unyielding position on liberalizing the penalties for cannabis possession deterred the police from utilizing the caution for fear of undermining official policy. If this is an accurate assessment, the recent Parliamentary debate may signal an increased use of cautions in the future.

Procedure After Arrest

In cases involving arrests for possession of small amounts, the normal procedure is to book the defendant and release him at the police station rather than waiting until a forensic report has come back from the analyst.

Possession cases are virtually always handled in the Magistrate Court. If there is some evidence of trafficking, the police will seek an indictment and go to the Crown Court.

The police decision to charge is tantamount to conviction. Unlike the United States, where prosecutors frequently exercise discretion to forego prosecution in cannabis cases, their British counterparts rarely do so. Table 13 shows that less than 10 percent of the persons referred for prosecution have their cases terminated and this figure includes acquittals as well as dismissals. Also, the British have no Fourth Amendment and no exclusionary evidence rule, so the alleged illegality of police behavior which plays such a major role in U.S. drug cases plays no role at all in the U.K.

Sentencing

Table 14 shows the sentences imposed on persons convicted of cannabis possession in 1974, 1975, and 1976. The patterns in the three years are virtually the same. By far the most likely penalty is a fine, a sanction imposed in more than two-thirds of the cases. (The amount of the fine apparently varies widely from magistrate to magistrate. One informed observer stated that, in London, fines average about 25 pounds.) In contrast, less than 8 percent of the defendants are imprisoned or sent to other custodial institutions such as detention centers or Borstal training facilities. Another 6 percent receive suspended sentences of imprisonment. Together these groups may be comprised of persons whom the police suspected of dealing without adequate proof. Other than the fine, the most frequent disposition is the "discharge," which is usually conditioned on a period of lawful behavior. About one-in-ten of the defendants receive this disposition which avoids the stigma of conviction. As in the case of police caution, it is surprising that the discharge figure is not somewhat higher.

SUMMARY AND CONCLUSIONS

The Introduction described an international trend toward decriminalizing or otherwise substantially modifying the penalties for consumption-related behavior. The interior sections of this chapter then described and analyzed legislation from five European countries whose laws employ a variety of substantive devices and concepts for achieving similar objectives. As in the United States, these reforms have generally followed either or both of two paths : (a) reducing or eliminating "criminal" penalties for consumption-related behavior, sometimes limited to cannabis offenses; and/or (b) authorizing conditional suspension of prosecution or waiver of sentence in cases involving persons charged with use-related offenses, thus permitting them to be "diverted" to treatment programs.

Legislated Decriminalization

In the United States, no state legislature has de penalized any drug-related conduct, although passive enforcement practices toward minor cannabis offenses may have had the same effect in many jurisdictions. However, a handful of state legislatures have decriminalized possession of small amounts of cannabis (in the sense, as defined earlier, that the offense is punishable by fine rather than confinement and carries no stigmatizing record consequences) ; and another group of states has significantly reduced the severity of the criminal penalties, usually by precluding imprisonment." No state, however, has eliminated or substantially modified the criminal penalties for possession of drugs other than cannabis.

Switzerland and Italy have, by statute, depenalized a class of consumption-related behavior pertaining to all drugs (not cannabis alone) and have not replaced criminal penalties with other legal devices for coercive intervention based on the "medical model." However, because the class of consumption-related behavior which is "not punishable" is not precisely defined by statute, all users are subject to involvement in the criminal process for a determination whether or not their behavior is punishable."

A lawyer familiar with principles of Anglo-American jurisprudence is immediately struck by the vagueness of provisions of the Swiss (Article 19b) and Italian (Article 80) laws supposedly "depenalizing" consumption-related acts involving "small" (Italy) and "insignificant" (Switzerland) amounts. Such a statutory formulation leaves the very definition of criminal conduct up to the magistrates and courts. In the absence of officially-announced guidelines or designated amounts, neither the potential offender nor the police know whether an offense has been committed. Of course an initially vague concept may be clarified as judicial practice becomes known (at least if no significant disparities emerge) in objective terms. But it is also possible that the magistrates will view "smallness" of amount as being an individualized determination drawing on characteristics and testimony of the offender, rather than being a purely objective attribute of the conduct itself. Article 80 of the Italian law seems to inject this dimension into the inquiry.

In any event, the legislatures in both Switzerland and Italy have eliminated "direct" penalties and have also removed the derivative consequences which attach to criminal convictions. On the other hand, the new laws maintain the structure of involvement in the criminal process.

Decriminalization by Administrative Action

Italy and Switzerland are the only two European countries whose statutes have either depenalized or decriminalized consumption-related behavior. However, such a result can also be achieved by administrative action.

As was noted earlier, the scope of administrative/prosecutorial discretion differs widely from country to country. In some countries, such as The Netherlands, the legislature marks only the outer boundaries of penal policy ; the Ministry of Justice has wide leeway to formulate implementing rules which, in essence, have the same effect as legislation. In such countries, the statute may define the offense as a criminal one and may authorize imprisonment, but the Ministry of Justice may formulate rules which decriminalize the behavior, providing for example, that arrests should not be made in cases involving designated consumption-related behavior, or that such cases should be dismissed, or that such arrestees should only be reprimanded, or that fines should be administratively imposed.

As was described in an earlier section, the Ministry of Justice in The Netherlands has directed that arrests simply not be made for consumption-related behavior involving cannabis. The offense has been depenalized administratively. For users of other drugs, official policy directs the referral of users to social services and treatment agencies, but the residual role of the criminal sanctions is not clear.

The offense may also be decriminalized (though not de-penalized) through administrative action. This has apparently been achieved in Denmark. Although all drug offenses, including possession, are covered by the Danish penal code, possession cases are processed largely without judicial intervention through a system of police and prosecutorial warnings.80 In 1969, the Danish Ministry of Justice promulgated a circular which provided, in part, that:

 . . as a rule, there will be no occasion for [initiating the criminal process] to impose criminal liability for possession (purchase or receipt) when the suspicion concerns only the offender's own consumption of euphoriants. . . . If the police ascertain consumption of drugs, the criminal liability for possession (purchase or receipt), as a rule, ought to be settled with the issuance of a warning by the police. In the case of a subsequent offense, the police may still issue a warning, but in more serious cases of repetition, and in case of repeated possession of drugs other than cannabis, a fine ought to be imposed. In connection with the issuance of a warning or the imposition of a fine, persons who need treatment may be referred to a rehabilitation center if one is available.

According to information obtained by the U.S. State Department, the penalties for cannabis offenses are well-defined. Possession of up to 10 grams of hashish or marijuana for personal use generally provokes only a verbal warning unless it is the person's second offense within a six-month period, in which case it is punished by a $50 fine. Possession of between 10 and 50 grams of marijuana or hashish for personal use is punished by fines of about $70 for a first offense, $100 for a second offense and $140 for a third offense.

Aside from the use of prosecutorial policy guidelines per se, the Danish approach has several unique features. Most important, it employs the techniques of police warnings (or police cautions) and administrative fines as presumptive alternatives ("as a rule") to criminal processing. Police warnings are preferred for first offenders, and may be used even for recidivists. Only if the person is "repeatedly" apprehended for use of drugs other than cannabis is an administrative fine used. Both of these sanctions are unusual. The police caution is also available in the United Kingdom but, as was noted earlier, only rarely is it used in drug cases, and the administrative fine—imposed by police and public prosecutors rather than courts—is a device employed in only a handful of countries.8'

Diversion: Conditional Waiver of Prosecution or Sentencing

In some countries, the consumption-related offenses have not been decriminalized by statute, as has been the case in Italy and Switzerland, and have not been decriminalized by administrative action, as has been the case in Denmark and The Netherlands ; instead these countries have enacted "enabling" legislation permitting or requiring "diversion" in lieu of prosecution or sentencing for those who possess small amounts for their own use. This approach appears designed to employ the criminal process as a device for identifying persons in need of treatment, for facilitating referral to the health care/social service system and for "inducing" participation in a rehabilitative program.

Diversion, conditional discharge and similar linkage mechanisms have been customary in cases involving drug users in many United States jurisdictions for many years.82 For the most part, however, the schemes are permissive, and rely largely on discretionary decision-making by individual prosecutors and judges who have the authority (even without explicit enabling statutes) to terminate cases, absolutely or conditionally, on their own.

In some countries prosecutorial and judicial discretion is more tightly structured by legislation than in the United States. Accordingly, in these countries the prosecution could not decide, on its own, to initiate a "diversion" (conditional dismissal) program ; nor could the courts systematically waive sentencing on the condition that the offender enter treatment. Thus, it is significant that several of these countries have enacted "enabling" legislation permitting "diversion" in lieu of prosecution or sentencing for a defined class of users. Luxembourg, Switzerland and Germany have such "permissive" provisions and, in France and Austria, suspension of prosecution appears to be mandatory for first offenders.

Frequently the class of users eligible for "diversion" is defined in terms of the amount possessed. In the United States, enabling legislation for diversion frequently provides that the eligible class is composed of persons charged with or convicted of "simple" possession—that is, they are not charged with or convicted of possession-with-intent-to-distribute. However, in many countries, the law does not create a separate offense of possession-with-intent-to-distribute. Thus, when the legislature seeks to permit diversion of persons charged with consumption-related offenses, it must carve out a category of "possession" offenders—usually the technique has been to permit diversion in cases involving "small" amounts.

In Austria the execution of sentence may, according to the Act of June 24, 1971, be suspended in the case of unauthorized acquisition or possession of narcotics, when the substances in question are intended for the personal use of the consumer over a week's time (and when the accused submits to the care of a physician). The federal justice ministry has issued guidelines for an average weekly supply : 30 grams of Hashish, 3 grams of raw Opium, 0.3 milligrams of LSD and 100 milligrams of Amphetamine.83 In the Federal Republic of Germany, the Act of January 10, 1972, authorizes the courts to waive punishment if the defendant has acquired or possessed narcotics solely for his own use in a "limited amount." This provision has been construed to refer to "that amount needed by the consumer to produce the desired effect," or a "daily dose"—several grams of hashish, several LSD trips, or the requisite amount of other narcotics, according to the degree of their effect. In doubtful cases the consistency of the seized substance and the physical and psychological condition of the consumer are taken into account as well.

Drug Use and Penal Sanctions: Some Concluding Observations

As this brief review has indicated, the recent revisions of national drug laws have used a wide variety of substantive devices. What is now needed in the international arena as well as within the United States is a systematic effort to fix the alternative roles of penal sanctions and the penal process as means of implementing governmental efforts to contain disapproved behavior—in this case, illicit drug use. Although such a study would range far beyond the intended scope of this paper, some general observations seem appropriate.

The Preventive Effects of Criminal Sanctions

From a utilitarian standpoint, the benefit of legal sanctions derives from their contribution to the network of social processes which prevent or minimize the aggregate consumption of illicit drugs. It should not be forgotten that the preventive influence of the law interacts with other preventive influences and cannot, therefore, be measured in isolation. Further, it should also be recognized that the preventive effects of a prohibitory approach toward drug use are attributable largely to the enforcement of proscriptions against availability. This is not to overlook the interactive relationship between supply and demand, but only to emphasize that the direct preventive effects of sanctions against consumption-related behavior are separable from, and relatively less important in the aggregate than, the preventive effects of proscriptions against availability.

To the extent that proscriptions of consumption-related behavior, and the imposition of sanctions, supplement the preventive effects of the prohibition of production and distribution, such effects can be achieved in four ways. The first two constitute the general preventive effects—that is, those which are directed toward the population of users or potential users at large, as part of the larger social processes which shape attitudes and behaviors : (1) deterring the prohibited behavior through the threat of punishment (general deterrence) ; and (2) symbolizing social disapproval of the behavior, thereby reinforcing attitudes unfavorable toward consumption ("educative" or "habituative" effects). The other two are specific preventive effects—in the sense that they are directed toward individuals actually apprehended for engaging in the proscribed behavior : (3) providing legal leverage to channel detected users into specific programs designed to modify their drug-using behavior through education or rehabilitation ;84 and (4) intimidating those who are detected into modifying their behavior by punishing them and/or threatening future punishment ("specific deterrence").
The actual preventive effects of any scheme of sanctions will depend, of course, on a wide array of variables, including the underlying cultural dynamics and social-psychological processes which influence drug-using behavior in a particular society or subculture (which may vary according to the type of drug and its social meaning). Also, the social meanings of different types of proscriptions and sanctions will differ from culture to culture, and the levels of enforcement (the extent to which sanctions are actually imposed in individual cases) will, over time, influence both the general and specific preventive processes.

For similar reasons, the costs of alternative sanctioning schemes can be meaningfully assessed only within the context of a longitudinal socio-cultural view. The immediate costs of actually imposing sanctions can, of course, be measured in hard currency; but the possible criminogenic effects of prescribing sanctions of variable severity (e.g., disrespect for law, devaluation of criminal sanctions) and imposing them on individual offenders in variable proportions (e.g., labeling effects) can only be approximated. But the point here is simply that, in theory at least, there is an optimum sanctioning and enforcement scheme, and that the policy-maker can usefully focus his inquiry by considering the types of preventive effects and costs outlined above.

Against this conceptual backdrop it is instructive to consider the range of sanctioning schemes for consumption-related behavior represented in this review of European reforms. Several specific policy choices may be highlighted, as is demonstrated in Table 15.

Depenalization Issues

Are legal sanctions against consumption-related behavior required at all? That is, should the conduct, however defined, constitute a punishable offense or should it instead be "de-penalized" ?

Policy-makers may resolve this question differently for different drugs, depending on the perceived preventive effects of legal sanctions when compared with the costs and adverse consequences of imposing them. For example, depenalization of cannabis offenses has been adopted administratively in The Netherlands and by statute in some United States jurisdictions while sanctions are preserved—for their leverage effects at least—for non-cannabis offenses. In Italy and Switzerland, on the other hand, the depenalization policy has been extended to a band of consumption-related behavior without regard to the drug involved.

One interesting comparative question raised by the Swiss and Italian reforms concerns the procedures by which the system determines whether or not a punishable offense has been committed. The intensity of the user's involvement in the criminal justice system (hence the sanctioning effects) is dependent on the degree to which conduct-specific criteria for punishability are promulgated in advance or, conversely, the degree to which these determinations are dependent on an individualized assessment of the evidence by legal decision-makers.

Section A of the outline in Table 15 (see pp. 222-23) highlights the distinction between depenalizing possession of less than a specified amount and the approach used in the Italian and Swiss laws—depenalizing possession of unspecified "small" amounts but requiring the initiation of the penal process pending a determination of non-punishability.

TABLE 15 STYLES OF "DECRIMINALIZATION": A DESCRIPTIVE OUTLINE

A. Conduct Is Not An Offense

1. No Sanctions—Release immediately after detection/seizure [Definition of conduct is objective enough that police themselves decide whether an offense has been committed]
2. Sanctions Incidental to Determination of Punishability—Police are not permitted to make decision about punishability.
a. restriction of liberty after detection for initial processing*
b. mandatory appearance before administrative or judicial officer
c. recorded but non-compulsory referral to social service or treatment agency

B. Conduct Is An Offense

Non-Criminal Sanctions

1. Administrative Action
a. caution/warning or reprimand issued by police or prosecutor
b. fine imposed by police or prosecutor
c. recorded but non-compulsory referral to social service or treatment agency

2. Judicial Action
(After adjudication or plea but without "criminal" conviction or other derivative consequences).
a. caution/warning or reprimand
b. fine
c. recorded but non-compulsory referral to social service treatment agency
d. partial restriction of liberty in connection with community service, periodic reporting requirement, etc. (e.g., no more than 20 hours over a period of one month)
e. short term intermittent detention (e.g., no more than 7 nights or 2 weekends)

Less Severe "Criminal" Sanctions

1. Administrative Action
a. conditional dismissal or discharge based on participation in treatment or social service program
b. suspension of process for prescribed period with expectation of dismissal upon proof of good behavior

2. Judicial Action

(After adjudication or plea and with official record of conviction)
a. waiver of penalty or sentence
b. official reprimand
c. suspension of sentence (or of entry of conviction order) for prescribed period with expectation of discharge upon proof of good behavior or upon proof of participation in treatment or social service program
d. fine
e. non-compulsory referral to social service or treatment agency
f. partial restriction of liberty in connection with community service, community supervision, periodic reporting requirements, etc.
g. intermittent confinement for evenings and/or weekends for maximum period of 90 days
h. continuous confinement up to 30 days

* Detention should not be permissible for any other purpose.

The indefiniteness of the Italian and Swiss provisions could be viewed as providing an intermediate step between no penalty at all and traditional post-conviction sanctions. By maintaining the formal role of the police and the structure of intervention, the law exerts preventive effects in four respects. First, the potential initiation of the criminal process and the continuing possibility of formal intervention symbolizes a discouragement policy and may thereby reinforce attitudes of disapproval and caution. Second, the possible restrictions of liberty and choice involved in being a criminal defendant, as well as the threat of formal intervention, may exert a general deterrent effect on illicit drug use—even in the absence of traditional post-conviction penalties. Third, for some users, being involved in the criminal process, being required to appear before the court and being reprimanded, and/or referred elsewhere, may all be regarded as disincentives to continued use of illegal drugs, thereby generating specific deterrent effects. Finally, by providing the opportunity for identification and referral, the criminal process serves basic outreach functions for the strategy of "voluntary" intervention. (Under these schemes, of course, the criminal process is facilitative, rather than coercive.)

All of these preventive consequences depend on initiation of the criminal process. However, a major motivation for reform may be to minimize the involvement of drug users in the criminal process and preclude the imposition of any penalties. If so, a more definite line must be drawn in the statute itself (or in implementing administrative guidelines if these are customarily used) . A more complete depenalization than is achieved under the Italian and Swiss laws would also avoid the disparity which is inevitable in any discretionary decision-making scheme.

If greater certainty is desired—for reasons of drug policy (maximum depenalization) or penal policy (concerns about unfairness and abuse) —the alternative is to use specified amounts in the statute or in implementing administrative guidelines."

It has been argued that depenalization of specified amounts will reduce the efficacy of prohibitions against retail trafficking. The main contention is that dealers will be careful not to possess more than the specified amount—and therefore minimize the risk of detection for a punishable offense. Ultimately, of course, the seriousness of this objection depends on where the line is drawn—how small, or large, the depenalized amounts are. Surely dealers will not alter their usual practices if the depenalized amount is 10 grams of cannabis or 2 grams of heroin. On the other hand, it is conceivable that dealer practices could be affected by depenalizing 8 ounces of cannabis or one ounce of heroin.

One way to avoid both ambiguity and arbitrariness is to use three or more amount gradations. If a person is detected in possession of the lowest amount, it would be conclusively presumed that the drug was held for personal use and no offense had been committed. On the other hand, if more than a designated amount were seized, it would be conclusively presumed that the person held it for distribution. For amounts in between, the burden of proof would be on the defendant to show that the drug was held for personal use ; this determination would not be made by the police but rather by prosecutors or courts. If the competent authority determined that the drug was possessed for personal use, a successful "defense" would have been raised, and no offense would have been committed. This, in some respects, is the equivalent of the Italian and Swiss schemes, although it would be confined to cases involving seizures above a specified amount.

Decriminalization Issues

Assuming that the policy-making body has decided not to depenalize any consumption-related behavior, the next cluster of questions concerns whether such behavior, however defined, should be punishable by "criminal" or non-criminal sanctions. By statute in several jurisdictions in the United States and by administrative rule-making in The Netherlands and Denmark, possession of some drugs for personal use is punishable by warning, reprimand or fine. The processing of the cases involves a minimum of indirect punitive consequences and no "criminal" record is generated by the adjudication.

Again, the central policy choice turns on the incremental preventive effects of the deprivation of liberty or wealth and the derivative stigmatization associated with the concept of criminal punishment. Important subsidiary questions concern the extent to which the judiciary should be involved and the extent to which the disposition of the case should generate any informational consequences related either to the imposition of stricter penalties for subsequent offenses or to the referral of violators' names to social service or health-care agencies.

As was mentioned in the Introduction, these questions have not been systematically addressed in any of the countries studied ; instead the recent departures in each country should be regarded as experimental efforts to adapt the traditional processes of punishment to the special requirements of drug abuse prevention. The opportunities for collaboration and comparative research are enormous. At a minimum, information concerning the structure and impact of recent reforms should be exchanged under the auspices of the appropriate international agencies.

 

---

1. In general, all European countries have tended to increase criminal penalties for trafficking offenses over the years since the first drug prohibitions were enacted in the first quarter of the 20th century. The relative mildness of the penalties initially adopted is illustrated by the fact that the maximum sentence under the initial regulation was two-years' imprisonment in France and Belgium, six months in The Netherlands and three years in Germany In most countries, the penalties were gradually increased between 1939 and 1965—e.g., to 5 to 10 years, depending on circumstances, in France; five-years' hard labor in Switzerland and 10 years in the United Kingdom and Italy for most serious offenses. Most countries have revised their drug laws within the last decade, enacting further increases in trafficking penalties. In the countries visited, the maximum prison sentence for "unaggravated" offenses involving opiates is 20 years in France, 15 years in Italy, 20 years in Switzerland, 12 years in The Netherlands, and 14 years in the United Kingdom.

2. See, e.g., THE FIFTH UNITED NATIONS CONGRESS, REPORT ON THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS
1975, "matters calling for action by . . . the Committee on Crime Prevention and Control" 411 10, which outlines ten "priority areas" concerning international trafficking.

3. Virtually all of the initial drug legislation in Europe (enacted, as indicated, between 1920 and 1930) punished all drug-related behavior, including possession, and imposed equally severe penalties for trafficking and consumption-related offenses. The act of use itself was not a punishable offense in some countries such as France, Switzerland, and Italy.

4. In a notable international development over the last decade, legal commentators, professional experts in the drug abuse field, and increasing numbers of public officials have expressed disenchantment with the use of traditional penal measures, especially incarceration, as a means of discouraging the use of illicit drugs and dealing with drug users. This is reflected in a worldwide reduction of maximum penalties for consumption-related offenses, and the increased attention and funding given to drug abuse prevention and treatment activities (aside from supply-reduction) by international and national agencies. This trend is more concretely expressed in the virtually identical provision of the 1971 Amendments to the Single Convention on Narcotic Drugs of 1961 and the 1971 Convention on Psychotropic Substances. See page 132. The international dimensions of this trend are apparent in the DELIBERATIONS OF THE FIFTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIME & THE TREATMENT OF OFFENDERS (Geneva, Sept. 1975). See 41110 of the "matters calling for action by . . . the Committee on Crime Prevention and Control":
(b) With respect to drug abuse, the Congress held that since it formed part of the general public health problem, preference should be given to measures of treatment and social reintegration of drug abusers and addicts, and that penal measures, if not excluded, should in no way prevent the application of these measures and should be restricted to ensuring their application, if appropriate.
See also the excerpts from the DELIBERATIONS OF THE CONGRESS, infra note 5, It 9, 70, and 74.

5. See, e.g., the REPORT OF THE DELIBERATIONS OF THE FIFTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS, "AGENDA ITEM Six: CRIMINAL LEGISLATION, JUDICIAL PROCEDURES AND OTHER FORMS OF SOCIAL CONTROL IN THE PREVENTION OF CRIME," especially ¶J 157-77.

6. The exploration of alternatives to traditional criminal sanctions, including decriminalization, has attracted a great deal of attention, in the Ministries of Justice as well as the Universities, over the last decade or so. This generic development is well reflected in the activities of the Council of Europe, through its Committee on Crime Problems. A subcommittee on decriminalization was established in 1970 and a special subcommittee (No. 27) issued a comprehensive report on "Alternatives to Imprisonment" in 1976. Moreover, part of the proceedings of the 6th Congress of European Ministers of Justice was devoted to the general subject of decriminalization in 1970.
Many commentators on and proponents of elimination or modification of traditional criminal sanctions have regarded consumption-related drug offenses as a prime candidate for statutory reform. This attitude is reflected in the resolutions of several official and quasi-official bodies within the Council of Europe as well as those associated with the United Nations. See, for example, the recommendation of the Eleventh Conference of Directors of Criminological Research Institutes in 1974, urging the Council of Europe to:
. . . work with a view to examining the fundamental concepts of drug legislation and the structure of intervention. This study might pay particular attention to the depenalization of the possession of drugs as a means of adapting the judicial or administrative reaction to the circumstances of the individual case.

7. These investigations also had a diplomatic dimension. It has been apparent for several years that officials in Geneva and in foreign capitals have misinterpreted the "real" basis for decriminalization (of marijuana use) in the United States and what it portends for the future. To these observers, decriminalization is merely a stepping-stone to "legalization" and signals a weakening of this country's efforts to discourage illicit drug use. This is not a correct interpretation of the meaning of decriminalization in the United States, which has a much more limited rationale. Thus a secondary purpose of the discussions described in this report was to inform public health and criminal justice officials in the countries visited about the contours of decriminalization and the likely consequences and directions of reform in the United States.

8. In France, these included a spokesman from the Health Department, a Criminology Institute Director who is a member of various official law-reform bodies and an investigative magistrate. In The Netherlands interviews were conducted with a spokesman for the Ministry of Justice and with the Director of the Health Department's drug abuse agency. In Switzerland, the main interviewees were a spokesman from the Health Department's Public Hygiene Service and several representatives from the Central Police Bureau. In Italy informants included the deputy head of the national drug enforcement agency, a magistrate in the Ministry of Justice, and a criminologist/psychiatrist who has participated in an official advisory capacity. Finally, in the United Kingdom, discussions were held with the Home Office official responsible for drug abuse matters and a citizen member of the Advisory Council on Misuse of Drugs.

9. For a useful comparative analysis of sanctioning systems for minor offenses in Europe, see FELSTINER & DREW, EUROPEAN ALTERNATIVES TO CRIMINAL TRIALS AND THEIR APPLICABILITY IN
THE UNITED STATES (NILECJ Monograph 1978).

10. I have drawn a distinction between "criminal" penalties and non-criminal ones. Although it is generally assumed in the legal literature that this is an easily recognized distinction, my own research and analysis demonstrates that sanctions for minor misconduct are not easily categorized into criminal and non-criminal ones. These sanctions vary according to a number of dimensions, each of which may be relevant to a decision to classify it: the type of penalty which can be imposed on conviction (especially imprisonment); the derivative legal consequences of "conviction," especially the official uses of "records" of conviction (stigma); and the process of charging and adjudication (the involvement of criminal justice agencies such as police, prosecutors, and criminal courts). In a comparative study, the task of distinguishing between "criminal" penalties and non-criminal ones is complicated by the fact that the term "crime" itself has no commonly-shared legal meaning, being reserved for only the most serious offenses in some countries (e.g., France) and covering a much wider range of offenses in others (e.g., United States, Canada, and United Kingdom).

Most countries do distinguish between the most serious offenses (e.g., felonies) and the less serious ones (e.g., misdemeanors) ; both penalty and record consequences, as well as variations in the adjudicative procedures, flow from this distinction. A rational penal policy should also draw a categorical distinction at the lower end of the "seriousness" scale (e.g., between criminal offenses and noncriminal or "civil" ones). Although a coherent analysis of the theoretical issues involved in drawing such a distinction is beyond the scope of this work, some yardstick is needed for purely descriptive purposes. Thus for purposes of this publication, I have employed the term "criminal" to refer to a threshold concept: if the offense has "criminal" record consequences or if it is punishable by term of custodial confinement greater than one week, it will be classified as a "criminal" offense. The choice of one week is an arbitrary one and is simply intended to reflect the possibility that legislators may wish to prescribe a short period of "shock" confinement as a deterrent, even though they may wish to preclude any stigmatic consequences from attaching to conviction of the offense. These two elements have not been separated in any of the laws analyzed in this publication. However, for an illustration of this concept, see the "infraction" provision of S. 1437, the currently pending revision of the United States federal criminal code.
For a general discussion of the issues raised in this note see R. Bonnie, Decriminalizing the Marijuana User: A Drafter's Guide, 11 MIcH. J. L. REFORM 3 (1977).

11. Some commentators use these terms somewhat differently. In a report to the Sixth Conference of European Ministers of Justice in 1970, the Italian Minister of Justice employed the term "de-penalization" to refer to reforms which substitute administrative or civil sanctions for penal ones. In such cases, the act is still unlawful but non-penal measures are regarded as being more suitable means of discouraging the behavior. Conversely, "when we consider ending the unlawful nature of certain acts, without replacing the criminal sanction by another kind, we have used the term decriminalization . . ." (page 31). I have used these terms with exactly the reverse referents.
It is not entirely clear how a compulsory diversion scheme would fit into the Italian Minister's conceptual framework. It would appear that if the behavior remains an offense, but therapeutic and social measures are substituted for penal ones, he would still use the term depenalization. His position was so interpreted by Mr. Florio of France at a 1974 Conference of the Directors of Criminological Research Institutes, on "The Importance of Narcotics in Relation to Criminality" at 73 (Council of Europe 1975). For example he refers to the French and Austrian schemes as having "depenalized" (in my jargon, "decriminalized") drug use offenses by substituting medical treatment for the criminal penalty. I have not used the term this way. If the behavior is still punishable by criminal penalties, it is not regarded as having been decriminalized even though therapeutic or social measures are preferred and even mandatory; this is because criminal penalties are withheld only conditionally. The offense itself remains a crime and intervention remains coercive on the sole showing that the person committed a prohibited act of use or possession.

12. "Repression" is the European term of art for reliance on criminal law enforcement.

13. THE ELEVENTH CONFERENCE OF DIRECTORS OF CRIMINOLOGICAL RESEARCH INSTITUTES, The importance of Narcotics in Relation to Criminality 47 (1975).

14. Law No. 70-1320 in The Law Gazette of the Republic of France, January 3, 1971.

15. The Belgian participant (Mr. Bekaert) at the 1974 Conference of Directors of Criminological Research Institutes (note 13 supra) utilized the term "decriminalization" to refer to reforms which converted the action from a serious offense (crime) to a less serious one (délit). "Decriminalization in this sense is only possible in systems of law that draw a distinction between the two kinds of offense, e.g., the French system." I do not agree with Mr. Bekaert's use of the term. Under French law, délit offenses are punishable by long terms of imprisonment; many délit offenses are punishable even more severely than misdemeanors in the United States. In terms of stigma and deprivation of liberty the penalties for délit offenses ought to be regarded as severe, and—in the American sense—as "crimes."

16. These local police offenses appear similar to the Swiss "contraventional penalties" which are utilized for drug use offenses under the 1975 Act.

17. Article L. 627, § 3.

18. Article L. 630.

19. The prosecutor is directed to inform the public health authority in order to initiate the entry process. The public health authority, after having conducted an examination, may order the person to a particular institution or to initiate an outpatient treatment program. Once the person has enrolled, he is required to notify the health authority to this effect, presenting a certificate indicating the date when the treatment began, its predicted duration, and the institution in which the person will be hospitalized or the person under whose supervision he will be treated as an outpatient. The health authority is directed to inform the prosecutor "regularly" of the medical and social situation of the person concerned. Further, the director of the institution or the physician responsible for the treatment is required to inform the health authority, which is required to notify the prosecutor, whenever the person interrupts his treatment program.

20. This procedure blends aspects of the prosecutorial function (investigation) and the judicial function (the preliminary hearing) under Anglo-American procedure. The Juge d'Instruction directs the police investigation but also is expected to make an objective assessment whether or not there is sufficient cause to refer the case to the criminal court.

21. Article 627-1 of the 1970 Act increased the maximum period of preventive detention after arrest from the customary 24 hours to a maximum of four days in drug cases. In addition, the act requires that a prosecutor must appoint a medical expert to examine the detainee every 24 hours and to prepare a report of such examination.

22. By 1972, a consensus had emerged within the policymaking establishment that incarceration and traditional "repressive" measures were unsuitable for drug users. Partly this was a product of necessity; an overwhelming consideration was the fact that jails were extraordinarily overcrowded. This problem became even more acute when the jails became populated with increasing numbers of political dissenters.
The mushrooming political violence in Italy is also related to the pressure for reform of the drug laws in another way. Suppression of political violence became a high priority on the agendas of each of the three national police forces. Similarly, an increasingly visible problem of drug addiction, and the international pressures attending the United States' initiatives in the early 1970's, stimulated an effort to improve the anti-narcotic enforcement capabilities of the police force. An important administrative reform of the 1975 act was the creation of a coordinating drug enforcement agency to supervise the anti-drug activities of the three national police forces. Against this background, the enforcement of the drug laws against users assumed a considerably lower priority.

23. See the remarks of Mr. Guiseppe di Gennaro, one of the moving forces behind the reform, in THE ELEVENTH CONFERENCE OF THE DIRECTORS OF CRIMINOLOGICAL RESEARCH INSTITUTES, The Importance of Narcotics in Relation to Criminality (1975).

24. The next paragraph goes on to provide, inter alia, that all narcotic or psychotropic drugs possessed for nonmedical use must be confiscated. This, of course, is required by the Single Convention.

25. Article 76 provides in full:
Inducement to use narcotic drugs or psychotropic substances
Any person who induces a person to make illicit use of the narcotic drugs or psychotropic substances classified in schedules I and III referred to in article 12 or engages, either publicly or in private, in activities aimed at promoting the illicit use of the said substances, shall be liable to imprisonment for no less than one or more than five years and to a fine of no less than one million or more than 5 million lire.
The penalty shall be increased if the act is committed to the prejudice of a minor.
The penalty shall be doubled:
(1) if the act is committed to the prejudice of a person under the age of 14;
(2) if the person has been entrusted to the offender for reasons of health, education, instruction, care or custody.
The same penalties shall be applicable to any person who, other than in the cases mentioned in article 73 above, promotes the use of the narcotic drugs or psychotropic substances referred to in the first part of this article or derives any profit from the use thereof.
If the act involves the narcotic drugs or psychotropic substances mentioned in schedules II and IV of article 12, the penalties stipulated in the preceding paragraphs, reduced by no less than one-third or more than one-half, shall be applicable.

26. See, e.g., Uniform Alcohol Intoxication and Alcoholism Treatment Act, §§ 12, 12(a) and Uniform Drug Dependence Treatment and Rehabilitation Act, §§ 502 and 503.

27. Article 98.

28. Article 96.

29. Article 99.

30. The procedures for "commitment" are set forth in Article 101.

31. These objections were raised by Mr. Ettore Masselli of the Supreme Court of Cassazione. They reflect the basic contention of those who think Article 80 draws the line in the wrong place. During the drafting process, some, including Mr. Masselli, argued that the line should be drawn at use, not at possession. At the Sixth Conference of European Ministers of Justice in May of 1970, Mr. Masselli noted that there was considerable interest in reducing or eliminating penalties for the mere user of drugs while fostering "preventive and punitive measures against any kind of trade or traffic promoting the distribution of narcotics, as well as the mere possession of such products for any purpose whatsoever." Use, he argued, should be decriminalized in cases which "concern very young people influenced by habitual drug takers or friends at gatherings, and not themselves in possession of drugs, their consumption being limited to drugs given to them by others." On the other hand, he continued, the law should
make a clear distinction between using and being in possession of drugs, two quite separate, independent acts and that one may occur without the other. The person using the drug is not committing an offense comparable to that of a person in possession of the drug for whatever purpose. In the second case, and this is what matters, it is a question of satisfying the need not only of the person possessing the drug but also of other people; it is the danger of contamination that we must consider here.
In order to take into account every aspect of the development of drug taking just described, we must regard being in possession of a drug as a criminal offense and mere consumption as exempt from penal sanctions. Italian law is quite explicit on this subject, keeping the distinction both in legislative and practical terms, so that offenses committed by drug peddlers are subject to harsher penalties than mere taking of drugs. The act governing this subject, passed in October 1954, and the provisions of the Criminal Code apply to illegal distribution and possession of narcotics, while there are virtually no penalties for mere consumption.

32. Information regarding the evolution of and motivations for the 1975 revisions was provided by Mr. Tibor Kemeny, a pharmacist in the Public Hygiene Service. Together with his immediate superior, the head of the Public Health Service and Chairman of the Narcotics Commission, Mr. Kemeny played a major role in the drafting process.

33. I was informed that one low priority item on the Public Hygiene Service's agenda is to compile an official list of all facilities which come into contact with drug abusers. It is anticipated that this list would be used to establish a complete registry of addicts and other drug-dependent persons.

34. The Public Hygiene Service estimates that there are between 100,000 and 150,000 alcoholics in Switzerland.

35. The Government's message to Parliament on May 9, 1973 stated (page 8) :
The draft maintains the principle of the present law according to which there is no distinction, from the penal point of view, between "major" drugs and "minor" drugs. There are no scientific criteria for making such a distinction so that a modification attempting to do so could be challenged as arbitrary. Some consider marijuana to be the only minor drug and others put in this category hashish, LSD, and even opium.

36. For a general comparative discussion, see R. Bonnie, Decriminalizing Marijuana Use: A Drafter's Guide 11 Mimi J. L. REFORM 3 (1977).

37. Under Article 36, offenders are to be placed in a "first offender facility" if they have not been imprisoned for more than 3 months within the five preceding years and if they have never been incarcerated for violations of a specified series of offenses.

38. If the violation concerned the fiscal laws of the confederation, a fine need not be reported, whatever its amount.

39. This is determined by a cross-reference to the generally applicable sentencing provision in the penal code. See Act of March 18, 1971. This penalty (up to 3 years) applies to the intentional violation—the illicit trade. The Act also increases the penalty for negligent regulatory violations which were formerly punishable only by a fine of 10,000 Swiss francs; Article 19 now authorizes up to one year's imprisonment or a fine up to 40,000 French francs. "This takes into account, for example, the druggist who carelessly sells a narcotic in the place of a harmless tranquilizer, and also the manager of a pharmaceutical company, who permits the illegal sale of narcotics out of negligence." Rudolph Gerber, Das revidierte Betaubungsmittelgesetz (The Revised Narcotics Law), KRImINALsrrix Heft 6 (Bern, June 1976) 275-77; Heft 7 (July 1976) 322-26. (Hereinafter cited as GERBER with page cited to partial translation, here 6.)

40. The Attorney General of Switzerland put it this way: Probably the most delicate problem in the design of the new law, which more than any other point led to heated, though fruitful disputation in the national advisory commission (The Narcotics Commission) was the question whether consumption of narcotics ought to be punished. Although several members wanted to regard the consumer primarily as a sick person, who is not to be reached through punishment, others, and these were finally the majority, placed value on the competence of the law to criminally deal with the user; first due to the consideration that the chances are greater in this way to get to the dealer through the consumer, but also, because the consumer very often is a dealer too, while the reverse case, a dealer as a pure consumer, is a rarity. The position of many chiefs of police that were solicited by the Attorney General's office, and which were without exception and very emphatically for the retention of punishment, no doubt played a major role in this wrestling with the question of punishment or no punishment.
GERBER at 4-5.

41. The Government's message to the Parliament, on May 9, 1973 stated that "The penalization of consumption constitutes without a doubt the most delicate point of the proposal." (page 19)

42. Apparently, some proponents of further liberalization of the sanctions argued that these penal sanctions, albeit contraventional, should be replaced entirely by "administrative" ones, presumably including the referral to treatment agencies and the like.

43. GERBER at 8.

44. Message of May 9, 1973 at 19-20.

45. Id. at 5, 28.

46. Moreover, if the simple user had never been punished or marked for a narcotics law infraction, the cantonal authority could be satisfied simply by admonishing him. This regulation will be supplemented by the disposition of the order: the admonitions and convictions issued to simple users will be inscribed by the court clerk but will have no other legal effect. This system will permit a central supervision of the punishments imposed for illicit use of drugs in order to avoid the possibility that the same individual would be admonished several times in a row in different cantons, for example. Id. at 19-20.

47. H. SCHULTZ, 2 INTRODUCTION TO THE GENERAL PART OF THE PENAL CODE 27-28 (2d ed. 1974).

48. GERBER at 8, 18.

49. The Attorney General indicated that 113 of Article 19a was "inspired by the example of foreign experience (France and Anstria) ."

50. The reference to Article 44 of the Penal Code is instructive. Involuntary hospitalization for treatment of alcoholism or drug dependence is generally permitted only in the ease of crimes and other major offenses. Since drug consumption is not classified as a serious offense, it was necessary to authorize hospitalization expressly. GERBER at 9.

51. Id. at 10.

52. It is instructive to compare the relevant language of the Government's initial draft with the language of 19b as finally enacted. All of what ultimately became Articles 19a and 19b was originally condensed into a proposed 115 of Article 19. It provided first that consumption was punishable by arrêts or a fine or, in the discretion of the authorities, by a warning if the defendant was a first offender. Nothing at all was said about the antecedent acts which, if nothing more were provided, would have been punishable under the general provisions of Article 19, paragraph 1—by up to three-years' imprisonment. Then the draft went on to provide that "whenever the acts have no consequence other than to prepare for the actor's own use or to permit others to use with him at the same time after he has gratuitously provided the drugs, they will not be punishable if only minimal quantities are involved." In this context the purpose of the provision was to assure that a user who engaged in consumption-related behavior was punished only for use and not for the more severely punishable antecedent acts. After 115 was broken up into Articles 19a and 19b and the reference to preparatory acts was inserted into 19a, the original design of the "small amount" provision was superseded. In effect, it became superfluous unless something more was intended. It could be argued that something more was intended in light of the fact that the language was revised in a significant respect: the original draft provided that "the acts" preparatory to consumption "will not be punishable"; article 19b provides that the offender is not punishable.

53. The result is the same as in the United States, where most drug arrests are made by state and local police enforcing state laws which vary significantly from state to state. In Switzerland, the variation occurs despite the operation of a single substantive law.

54. GERBER at 8.

55. GERBER at 11.

56. [The limitation on detention] may have a disadvantageous effect upon investigatory work, in that an immediate and surprise questioning is not possible. In practice, though, this difficulty is taken care of whenever the person is also suspected of acting as a dealer as well. This is, as experience shows, quite often the case. Here a provisional arrest (suspicion of withholding information) and immediate indictment may be ordered.
GERBER at 7.

57. The difference between the maximum penalties available under Articles 19 and 19a is a significant one—three-years' imprisonment versus 90 days in jail. The crucial factor, as in most countries, is the offender's intent—to distribute to others or to use himself. Thus the difficulties of interpretation are no different under Swiss law than in other countries which use an "intent" standard rather than presumptive statutory amounts. Even so, Attorney General Gerber probably exaggerated the problem a bit when he decried the effect of 19a:
Another, far worse, effect of this new provision of Article 19a, paragraph 1, is that a consumer can no longer be punished according to Article 19, that is, with imprisonment, if, for example, he is caught with a kilogram of heroin and his alibi—that he has put aside an assured supply for his own use—cannot be countered. I am afraid that in the future many dealers will make use of this excuse; it is to be expected, however, that magistrates and courts will recognize such defensive ploys and treat them as such.
GERBER at 7-8.

58. A spokesman for the Swiss central police bureau described the current judicial practices as follows:
Since the new law has been in effect, sentences have been more severe if trafficking has been involved, even in cases involving the "trafficking user." If a case involves only consumption, the offender is generally admonished under Article 19a. Until now, Article 19a has apparently not been applied to any great extent, perhaps because of the uncertainty about the meaning of "insignificant amounts."

59. Attorney General Gerber stated that, in his view, the police were authorized to "waive prosecution on their own" if the offender had no more than "a daily dose." If a large amount was seized, he said, "referral must be made to the appropriate judge." GERBER at 10.

60. But, unlike the doctor's privilege, "official and professional confidentiality comes into play only so long as the individual concerned is solely a consumer. Should the recipient be a dealer, for example . . . or should another offense (theft, etc.) be involved, the personnel of the Welfare or Care Center are responsible to supply information." GERBER at 2.

61. Because most of the cantons have not in fact developed the necessary treatment facilities, compulsory hospitalization is rarely ordered.

62. GERBER at 5.

63. Persistent inquiries failed to elicit information regarding any other offense which is punishable in a similar fashion.

64. As in the United States, the Dutch criminal code does create a separate classification ("overtreding") for parking violations, minor traffic infractions, and regulatory offenses. These offenses are not usually punishable by imprisonment and records of violations are not included in the official documentation system.

65. "Non-medical Drug Use in The Netherlands: A Summary of Policy Trends" (February 1977).

66. Id.

67. Apparently, regulatory devices to impose treatment on unwilling individuals are very limited under Dutch law. Under §§ 12-14 of the Mental Health Act of 1884 a judicial authorization may be obtained for confinement in a closed ward of a psychiatric hospital. However, in view of the deprivations of civil rights implicit in such orders, most psychiatrists are very reluctant to cooperate in obtaining such an authorization. Short term confinement (up to three weeks) is possible under § 35 of that Act. However, this period is too short to start a full treatment program, although it is useful to treat the most severe complications. Other possibilities exist within the framework of penal law through the application of the "opportunity principle" (discretionary diversions) by district attorneys or judges. As the Dutch government has indicated, "this is the main reason for maintaining penal sanctions on 'hard' drug use for nonmedical purposes." Id.

68. According to 1975 data, seizures of heroin increased from 28 kilograms in 1974 to 59 kilograms in 1975. Seizures of hashish and marijuana also increased considerably: seizures of hashish increased from 5,311 kilograms in 1974 to 6,913 kilograms in 1975; marijuana seizures increased from 194 kilograms in 1974 to 488 kilograms in 1975.

69. ELEVENTH CONFERENCE OF DIRECTORS OF CRIMINOLOGICAL RESEARCH INSTITUTES, The Importance of Narcotics in Relation to Criminality 67-68 (1975).

70. The narcotics coordinator at the American Embassy in The Hague surveyed the response in other capitals through United States embassies and found no adverse reactions. Dutch officials have noted some changes in the attitudes of other European officials.
Although the French have frequently asserted that the permissiveness of the Dutch is polluting the whole of Europe, the Interior Minister of France apparently remarked recently that "You may be right about hemp; it may not be so serious but we can't tell that to the parents."

71. On the history of the Wootton Commission and the events surrounding release of its Report, see M. SCHOFIELD, THE STRANGE CASE OF POT (1972).

72. The Times (London), June 25, 1977, at 2. All information concerning Parliamentary activity in 1977 was drawn from reports in The Times (London) and from discussions with officials in the Home Office. Information concerning the activities of the Advisory Council was obtained from one of its pro-reform members.

73. According to a report in The Times (London) on October 21, 1978, at 3, col. 2—characterized as an unauthorized "leak" by the Home Office which refused comment—the Advisory Council decided to transmit a lengthy working-group report on cannabis to the Home Office. The working group reportedly recommended that cannabis be reclassified as a Class C drug and that possession of the drug no longer be an "arrestable offense" and no longer be punishable by imprisonment if tried summarily.

74. The Times (London) report of October 21, 1978 also predicted that the Advisory Council proposals "may produce the first public debate on cannabis use since the controversial Wootton report in 1968."

'75. The predominance of cannabis arrests, particularly possession of small amounts, tends to support the observation of one observer that police practice changes very slowly, and that police attitudes tend generally to be quite conservative in connection with the enforcement of the drug laws. On the other hand, a recent report by an informed detective from Scotland Yard's Drug Squad, regarding the enforcement of the drug laws in London, indicates clearly that the priority in enforcement in London is on major trafficking, especially heroin, and a major attack has been launched on the Chinese heroin supplier. He argues that "drug using pop groups and communes in 'squats' have enjoyed less drug squad attention but have found it much more expensive and difficult to buy heroin and cannabis." He concludes that "the temptation to strike the more numerous and easily identified consumer groups has been resisted." In support of this conclusion, he cites and compares statistics for 1975 and for 1976. While the number of arrests decreased from 476 to 359, the amount of heroin seized increased from 111/2 ounces to 81 pounds 91/2 ounces and the amount of cannabis seized increased from 393 pounds to 1,912 pounds.

76. Misuse of Drugs Act of 1971, § 23(2).

77. The Standing Committee history is drawn from M. SCHOFIELD, THE STRANGE CASE OF POT (1972).

78. For a detailed description and analysis of recent cannabis law reforms in the United States, see R. Bormie, Decriminalizing the Marijuana User: A Drafter's Guide, 11 Mimi. J. LAW REFORM 3 (1977).

79. In effect, then, Italy and Switzerland have effected a "qualified" depenalization of consumption-related behavior. Depenalization is not complete unless the meaning of "small quantities" is specified objectively by law or announced policy, so that the police can decide immediately whether or not an offense has been committed.

80. For a general description of the Danish system of prosecutorial fines, see FELSTINER & DREW, EUROPEAN ALTERNATIVES TO CRIMINAL TRIALS AND THEIR APPLICABILITY IN THE UNITED STATES 9-10 (NILECJ Monograph 1978).

81. Administrative decriminalization may also have been achieved in Norway. The penal code prescribes a ten-year maximum penalty for all drug offenses. But, according to information supplied by the United States State Department, marijuana possession cases are routinely processed by the police as "civil misdemeanors," a practice which has been approved by the Norwegian Prosecutor General. The consequence of violation, according to the State Department information, is a warning or a small fine.
This description suggests that the Norwegian sanctioning system in cannabis cases resembles that in Denmark. However, characterization of the Norwegian approach must await further clarification. A recent study by FEISTINER & DREW, supra note 80, at 7-8, describes a very different procedure which may actually be one employed in cannabis possession cases:
An extreme transfer of judicial responsibility . . . is the power of a Norwegian prosecutor to levy a guilty judgment without any court involvement. The practice, called "patale unnlatelse," presupposes that the prosecutor is convinced that the defendant is guilty, at least on a technical level, but that the reasons for conducting a trial are not as persuasive as the reasons for not holding it. . . . The patale unnlatelse is a judgment of guilt, but no imprisonment or fine may be imposed as a result of it. . . . Currently patale unnlatelse are used for foreigners, occasional offenders, and trifling crimes committed by habitual offenders (drunks stealing small items).
The patale unnlatelse is like an American prosecutorial cils-missal in that it may be based on the prosecutor's decision that orthodox prosecution would not serve the need of society or the offender. It is, however, unlike an American dismissal, since it is a conviction, and may have the same effect as any other conviction in case of later offense or by way of informal social disabilities.

82. See generally, DRUG USE IN AMERICA: PROBLEM IN PERSPECTIVE: REPORT OF THE NATIONAL COMMISSION ON MARIJUANA &
DRUG ABUSE 242-77 (2nd Report 1973) ; Corcoran, Compilation & Analysis of Drug Treatment Laws in the 50 States & Five Territories, DRUG USE AMERICA, Appendix Vol. 4 558-706 (1973); R. Bonnie & M. Sonnenreich, The Uniform Drug Dependence Treatment and Rehabilitation Act and Commentary in BONNIE & SONNENREICH, LEGAL ASPECTS OF DRUG DEPENDENCE 291-340 (1975).

83. According to information obtained by the United States State Department, this diversion scheme is applied in a way which, in effect, depenalizes a first offense for possession of 30 grams or less of cannabis. The case against the offender must be dismissed if the public health authorities certify that he does not need treatment. However, the commission of a second offense within one year is punishable by up to 6 months in jail. (Possession of between 30 and 100 grams is a misdemeanor, and possession of more than 100 grams is a felony.)

84. Incapacitation of users during a period of total confinement could also generate preventive effects but this is obviously of greater interest (and more likely) in connection with the prevention of crimes against person or property, rather than with the prevention of illicit drug use.

85. It could be argued, of course, that full depenalization (and hence specificity) would undermine a discouragement policy toward use because no legal deterrent would remain—a person could use and possess less than the specified amount with complete impunity. The only answer here is that one must ultimately balance the deterrent and preventive benefits of legal sanctions against the costs of penalization.

< Prev		Next >