Predictable, Populist, Confused

Does this sound familiar?

"But the solutions proposed are politically driven catchphrase-based policy making"

It's a statement that could be applied to any number of probation-related issues over the last few years and it's regarding a topic we've not covered for some time : drugs. Of course it's a well known fact politicians talk nonsense on the subject and the latest headline-grabbing government initiative is no different. I can't be bothered to read it, but I notice Transform have and the quote is from their recently published analysis:-  

REVIEWING THE GOVERNMENT’S NEW ‘TOUGH’ CONSEQUENCES FOR DRUG POSSESSION

The Home Office has set out its plans to reduce the current levels of recreational drug use across the UK in its new White Paper Swift, Certain, Tough: new consequences for drug possession. The paper follows on from the Government’s most recent drug strategy; it was promised at the time to address the objective of ‘demand reduction’- reducing use - which the drug strategy mostly overlooked in its focus on service provision.

The White Paper’s demand reduction strategy for ‘so-called recreational users’ proposes a model for public consultation (to be piloted in three locations) for how drug possession offences would be dealt with, summarised in this graphic:

Some elements of the proposals appear relatively promising. At first glance, there seems to be a desire to try and avoid the tens of thousands of people caught committing minor possession offences from being drawn into the criminal justice system. Implicit is an acknowledgement that criminalisation of minor possession is both expensive and counterproductive; there is no evidence that blanket punitive sanctions are an effective deterrent and there is substantive evidence that they fuel stigma, create obstacles to proven public health interventions, and undermine the life chances, particularly of people from socially and economically marginalised communities.

This is why ending criminalisation of people who use drugs is recommended best practice from the Government’s own expert advisers (the ACMD), all 31 lead agencies of the UN including The World Health Organisation and UN Office on Drugs and Crime, as well as the Royal College of Physicians, the UK Faculty of Public health, the Royal Society for Public Health - and many other authoritative voices.

Moves in this direction are already underway in 14 police authorities - a range of ‘drug diversion schemes’ where people caught in possession are ‘diverted’ into health interventions rather than the criminal justice system and prosecution. While the law criminalising the act remains in place (often lurking as a threat behind some of the diversion programs), perhaps the best we can say is that diversion represents a form of partial or de facto decriminalisation. Transform has a dedicated page of information and resources about these initiatives.

Notably, the schemes have been lauded by the Drugs Minister, Kit Malthouse, recommended by the Government’s own recent expert review from Dame Carol Black, and are prominently flagged in last year’s new Government drug strategy. So the idea in principle is not a new one.

The White Paper, however, makes no mention of either decriminalisation or diversion schemes (although it does refer to ‘diversionary cautions’, see below). Instead, it promotes language around ‘swift certain and tough’ consequences - proposing the escalating tiers of sanctions described above. The first tier looks a lot like many existing diversion programmes but, worryingly, with a series of financial penalties as well as an offender-paid drug awareness course, which most diversion schemes do not implement. Tiers 2 and 3 move increasingly far away from emerging best practice and, indeed, the entire underlying conceptual thinking around diversion/decriminalisation relating to avoidance of harmful engagement with the criminal justice system, criminal records, stigma, and so on.

Before critiquing some of the details (where the devil inevitably resides), it is worth noting that we can all agree that there should not be a ‘postcode lottery’ for how police deal with drug offences. Currently, you can get very different treatment responses to possession offences depending on where you are caught - ranging from a life-impacting prosecution, to an informal telling-off. This variation is obviously problematic; equality before the law is a fundamental part of the rule of law and the aspiration in the White Paper to address this problem is welcome.

But the White Paper proposals, even acknowledging the vague nod towards diversionary pragmatism, are a step backwards from the best practice lessons emerging around the country. We should not pursue national consistency at the cost of entrenching bad practices more widely and undermining the positive work already being done throughout the UK. Equality should be about equally good policy, not equally bad. If rolled out these proposals would, in many areas, represent a form of levelling down (the proposals have already been rejected by the Scottish Drugs Minister - as a regressive step backwards from their existing diversion program).

We are all too familiar with problems created by drug prohibition - such as the empowerment of organised crime and related violence and exploitation - being blamed on the drugs or people who use them. These problems of punitive enforcement are then routinely used to justify even more punitive enforcement. But with this White Paper, the Government seems to be tacitly acknowledging the harms of criminalisation and the benefits of reform - but showing a pathological inability to make the case for such reforms, show leadership, and call them what they are. It is so invested in the drug war narratives that it seems unable to perceive reform as anything other than weakness or surrender. The result is this strange and confused mess of proposals.

A key problem of the White Paper is that it confuses, or deliberately conflates, issues relating to people who use drugs recreationally with issues relating to people with drug dependencies or problematic use. The paper, including its prominent ‘Swift, Certain, Tough’ title, draws heavily on the US literature on 'swift, certain and fair’ (SCF) sanctions. But while this scholarship on SCF has explored maintaining abstinence amongst drug-dependent offenders (enforced with drug testing - and sanctions, such as 48 hours of immediate custody, for positive results) the focus of the White Paper is specifically on ‘so-called recreational users’ who are not the focus of the SCF literature. Hawaii’s HOPE programme is referenced twice and appears to have been a big influence, but it is a programme for people with histories of dependence in probation-mandated treatment having left prison. None of that is relevant to recreational users - most of whom will not have criminal records, and none of whom, by definition, need treatment.

The White Paper has also pointedly replaced the ‘fair’ element of ‘swift, certain and fair’, with ‘tough’ - a reframing symptomatic of the performative ‘tough on drugs’ populism that runs through the whole paper and its accompanying media messaging. Even for the drug awareness courses mandated in Tier 1 (not dissimilar to the diversion programme in place in Avon and Somerset for example), there is a proposal to not just make the offenders pay for the course but for them to pay more than the cost of the course - an overtly punitive element thrown in for good measure.

The second tier, for those caught in possession a second time, includes what is called a ‘diversionary caution’. This is a formal police record that would appear on certain forms of background checks - in other words, a criminal record. It also involves random drug testing (presumably supervised urine samples - with all the indignities and human rights issues this entails) over a three-month period. A formal charge will be brought in the event of a positive test. So, far from progressive reform, this would de facto criminalise ‘internal possession’ and use (i.e. a positive test) in a way that only a small number of countries, such as Sweden, do at present.

Seemingly drawing on the disastrous and discredited ‘three strikes you’re out’ US policy from the 90s, third-time offenders would not only be automatically charged and receive a criminal record but would additionally be subject to a range of new, non-coincidentally headline-grabbing, punitive sanctions that include:

• Exclusion orders - Preventing access to certain ‘night time economy’ venues. The paper acknowledges there’s no evidence these would work, and it’s not clear how they would be enforced.

• Drug tagging - Remote monitoring of drug use with technology that they concede does not exist yet.

• Passport and driving licence confiscation - Ideas seemingly borrowed from some EU countries (such as Italy - which is unable to show they were effective), these seem particularly disproportionate, having the potential to devastate someone’s life or career - for a possession offence as minor as being caught smoking a joint.

And who is likely to move beyond tier 1, be criminalised, urine-tested, and subject to an additional raft of draconian new punishments? It is not going to be the ‘middle-class drug users’ that the Government seems so keen to single out, but whose drug use tends to take place with the protection that private space and privilege offers. In reality, it will be people who are already most exposed to drug policing and the glaring disproportionality in stop and search; those from economically and socially marginalised communities, and urban black youth in particular. These are also people less able to pay punitive fines or course fees, and therefore more likely to default and end up with a criminal record regardless, even from tier 1. It will be regressive in its impact on the poor and institutionalise the criminalisation of poverty. Yet more levelling down.

It is appropriate to welcome some elements of this White Paper - the acknowledgement of rising use and some of the problems with criminalisation and postcode lotteries, and the commitments to support problematic users. But the solutions proposed are politically driven catchphrase-based policy making, which ignore existing best practice. The proven diversion/decriminalisation approaches that the paper seems to want to benefit from, by their nature require a paradigm shift away from punitive enforcement. That’s the whole point. But the Government's obsession with maintaining its ‘tough on drugs’ posturing has perversely led to proposals that will be incredibly expensive, and are likely to lead to increased criminalisation and harms for the most vulnerable in society - with few, if any, corollary benefits.

Transform will be submitting a more detailed response to the consultation, and we encourage others with relevant personal or professional experience to do the same.