Let me start by quoting someone whose views are far more interesting and important than mine:

The protection of health and social well being in general and the improvement of the health of those who are already addicted must be our primary aim. We always bear in mind that the drug abuse problem is basically and principally a matter of health and social well being. It is not, in our view, primarily a problem of police and criminal justice.... We are fully aware of the necessity to prevent as much as possible a situation in which more harm is caused by criminal proceedings than by the use of the substance itself.

We give high priority to services directed primarily at improving the health and social functioning of the addict, with-out necessarily ending addiction, because a lot of addicts are not, or not yet capable of kicking the habit.

These quotations are not from a pamphlet of Libertarians or even from — what the British call — the lunatic left. They are from the speech delivered last year to the U.N. Conference on Drug Abuse and Illicit Trafficking by the Dutch Minister of Justice, a member of a conservative government, belonging to the traditional right-of-center party whose members include our captains of industry, bankers, judges and conservative professors like myself. This is the voice of the Dutch establishment.

The Minister's statement reflects the basis of the policy now pursued for more than 15 years by successive Dutch ministers of justice and ministers of health, and supported by a broad majority in Parliament. As such it reflects

* the deeply felt concern of the Dutch people and government about the use of dangerous drugs and the level of drug-related crime,

* the limited possibilities, financial, legal and practical, for restraining effectively trafficking and the use of illicit drugs,

* our international obligations, and last but not least

* our humanitarian and moral obligations to minimize the damage to the society and the harm to the addicted individual.

Dutch Policy Pragmatic, Not Liberal

The biggest mistake one could make — and some members of the U.S. House of Representatives, visiting Holland in August 1987 appear to have made that mistake

— is to regard this policy as the fruits of an overpermissive society. The Dutch policy on drugs is not a "laissez faire" policy, nor is it a liberal or lenient one.

It is, in American eyes, perhaps strange and unorthodox. But it is, above all, pragmatic and undogmatic. It is a fairly coherent, multi-disciplinary policy which attaches a high priority to the cost-benefit ratio.

This is perhaps the right moment to stress that I have not come to this country to recommend the Dutch drug policy as the perfect approach to the drug problem for all nations. No two societies are the same. What works well in Holland might be a disaster in your country — and vice versa. It is normal that countries tackle their problems in different ways. And there are good reasons to do so. Criminal law and the level of law enforcement are very much influenced by national tradition and the social and cultural structure of each society.

Astonishment at War on Drugs

On the other hand, I have to confess to some astonishment at the American handling of this problem. In my country the American nation is renowned, indeed almost notorious for its veneration for a businesslike, value-for-money approach to almost every problem of life. At the same time, it is admired for its high standard of constitutional freedom and its willingness to support its European friends in keeping or regaining their indepen-dence and civil liberties. It is to you, that we owe our freedom. In World War II you liberated us from the Ger-mans, today you protect us against the dangers from the East.

Your present war on drugs and your pressure on foreign nations to join you in that battle does not fit easily into this traditional picture of your country. I have, how-ever, no intimate knowledge of the American social and cultural setting and I am not familiar with the power structures in your country. Perhaps that is why I keep asking myself how it is possible that you handle the problem of drug abuse in such an unbusinesslike way. Any company that ran its affairs like that would have gone bankrupt long ago. And why it is that the American war on drugs gives us the impression of a fatal marriage between Iranian fundamentalism and Communist econom-ics. Is it because the American nation occasionally tends to choose the wrong allies? Why are you embarking on a policy that leans so much on an ally like law enforcement, which is by definition weak and inadequate? And why are you not using the forces, which made the U.S. the biggest and most successful industrial nation in the world? I am referring of course to the moral strength of the American people in general and of the American family in particular and the advantages of your capitalist system?

Before you tell me that this clearly shows that I understand as little about the U.S. as you do about Holland, I shall quickly switch back to the subject of this lecture: the Dutch policy on drugs.

Approach of the Problem

Does it work? And what exactly is this policy, in other words, how does it work?

I shall deal with these questions in the order I have indicated, since I hope that the results will sufficiently impress you to wish to learn more about our procedure.

But first of all, a word of warning. I do not regard myself as an expert on drugs. I am not a doctor, sociologist, psychologist or the like. Although marijuana is sold in a so-called coffee shop just around the corner from my Criminal Law Institute and hard drugs on the bridge across the canal on which the Institute is situated, I have never used or even seen soft or hard drugs. Because I am just an ordinary Dutch citizen, you can be sure that I will keep it that way. If I am an expert at all, I am an expert in the field of criminal law and law enforcement. Not, I hasten to add, because of any unfortunate personal experience. Although I and my family have lived and worked in the center of Amsterdam for almost 30 years, we have never been the victim of any drug-related crime. My expertise is based on a combination of academic study, good advice from other experts and professional experience gained as a judge of Amsterdam Criminal Court and Chairman of the Police Complaints Board of the City of Amsterdam. I will, therefore, approach the problem not from the angle of narcotic drugs but from the angle of the criminal law and as someone who considers the use of dangerous drugs to be one of the many forms of undesirable behavior in our society.

Let us now move on to the first question.

Does it work?

In other words, is Dutch policy successful? As always, the answer depends on your objective. Of course we all would like not a single drug to be used any more by anyone. But that is, at least at present, not a very realistic objective. In this respect I quote again the Dutch Minister of Justice:

One may have a high standard of morals and ethics about the banishment of all drug use. But whatever governments may wish or do, the reality is that not all young people obviously — are deterred by the threat of punishment or health hazards and that our present efforts...cannot keep thousands of them from using drugs.

If, however, given this reality, your present objec-tive is to reduce the use of drugs, to bring down the num-ber of new users to the drug scene, to minimize the dam-age to society, to keep the drug users alive, to let them mature out and to promote social rehabilitation not only in the aftercare stage butalso during treatment as an insepa-rable part of that treatment, the answer is different. If that is your objective and you would ask me whether the Dutch policy is successful, the answer is simple: yes, it is. Or, to put it rather more modestly: it is less unsuccessful than the drug policies of at least some other modern Western societies, including, perhaps, the U.S.

Guidelines

In 1976 the Minister ofJustice issued guidelines for the investigation and prosecution of drug offences. In these guidelines the Dutch government translated the international trend into the less prohibitionist, less retributive and less punitive criminal justice policy traditionally pursued by the Dutch, in an attempt to reconcile its international obligations with its national commitments and national political options.

In line with the international trend, the guidelines give top priority to the investigation and prosecution of production, import, export and large scale trafficking. In such cases, prosecutions are brought and the sentences demanded by the prosecution at the trial must as a rule exceed the statutory minimum by a number of years.

The guidelines specify a milder approach in the case of four categories:

a) users who deal in hard drugs in order to provide for their own needs or who are found in possession of more than a small quantity: in such cases the public prosecutor must demand a prison sentence, but is free to determine the length of the sentence to be demanded;

b) possession of a small quantity of hard drugs for personal consumption: no specific police investigation, no pre-trial detention and as a rule no prosecution;

c) dealing, possessing and producing a maximum of 30 grams of marijuana: no specific police investigation, no pretrial detention and as a rule no prosecution; and

d) sale of marijuana in small quantities by a reliable person in a youth center (known as a house dealer): no prosecution unless the dealer trades provocatively or openly advertises his wares.

Today's Practice

From these guidelines evolved a practice which was summarized by the Minister of Justice nine years later, in 1985, as follows:

Hard drugs: criminal investigation and prosecution are directed against trafficking. No criminal proceedings against users. Consequently no person is subject to imprisonment or prosecution solely because he or she uses drugs. Instead users are, in accordance with the government policy set out before, approached by organizations of a multi-functional network providing financial, social and medical assistance to addicts.

Soft drugs: the small dealers and users are left undisturbed by the police.
In practice this means that the police do not interfere with marijuana sales in coffee shops, unless the dealers are selling to persons under 16, selling large quantities or advertising.

I give you two examples to illustrate the present situation.

(1) A coffee shop owner filed a complaint against the Amsterdam Police with the Police Complaints Board for raiding his shop although he had observed these rules. My colleagues and I held that the complaint was justified and the police admitted they had been wrong.

(2) As from January of this year, the Dutch Ministry of Finance is taxing the profits which the coffee shops make on soft drug sales.

Reasons

For many foreigners this is a somewhat confusing state of affairs: the law formally declares certain acts to be punishable but 'the law enforcement agencies do not prosecute them in practice. According to Dutch Penal Law, this is legal. But still you may ask, why the Dutch prosecute some crimes like murder and rape and yet leave others unpunished. The answer is that the Dutch have a pragmatic value-for-money approach. Otherwise we would not, as a small country, be able to run the biggest port in the world and have a number of well-known multinationals like Shell, Unilever and Philips. After defining their objective therefore, they take a close look at the means at their disposal to achieve that objective. The objective of Dutch drug policy is to restrict the risks of the use of dangerous narcotic drugs as effectively as possible. Is criminal law in that context an ally or an enemy? Sometimes it is an enemy. Take for instance the cannabis situation in Holland before 1976.

A Black Friday for the Traffickers!

Mayor Ed Koch of New York City was quoted by Time magazine some months ago as arguing in favor of massive military interdiction and saying that "the political aim of the drug traffickers is to make addicts of all of us." But even great men make mistakes. It's not a political but a financial aim. Since, we should not fight them with the army or the police. The use of drugs is too serious to leave it to them. We should utilize those forces in our society, which have always been victorious in the past. I am referent to the forces of our capitalist system. What we need is a Black Friday for the traffickers. The U.S. could bring this about by giving up its unhappy alliance with the criminal law. And why should not it? Unless, of course, it has no confidence in the moral strength of the American people and nation.

C.F. Rüter is the director of the Van Hamel Institute of Criminal Law, University of Amsterdam, P.O. Box 19090, 1000 GB Amsterdam, Netherlands. 31 (20) 525-3375.