THE ROLE OF LAW ENFORCEMENT IN DUTCH DRUG CONTROL POLICY by Dr. C. Frits Ruter, Professor of Criminal Law, University of Amsterdam METROPOLINK WORKING PAPER #2 MARCH 1990 paper presented at the conference: DRUG ABUSE RESEARCH AND POLICY: a Dutch - American Debate organized by METROPOLINK Consultancy & Research The Hague, June 25/28 1989 Price DFI. 5.= This is METROPOLINK Working Paper #2 This issue contains the text of a paper presented by Dr. C. Frits Ruter professor of Criminal law at the University of Amsterdam. Drug Abuse Research and Policy: a Dutch-American Debate organized by METROPOLINK at the Ministry of Justice in The Hague in June 1989 Although primarily meant to inform American participants of the conference about the legal aspects of drug control policy in the Netherlands, we think that the text could also be of interest for a wider public. Particularly with a view to the debate about drug control in post 1992 Western Europe and recently in the westernizing societies in Eastern Europe. "METROPOLINK Working papers" are ment to trigger discussion. A consensus still is lacking on how to tackle the many problems associated with drug use and drug control. Hopefully this issue will help advance the ideas and ground the decisions of those who are responsible for the quality of drug control and policing, for public health, for community and city development. METROPOLINK will welcome comments and reactions. We hope you enjoy this second issue. Amsterdam, March 1990 Henk Jan van Vliet Director METROPOLINK THE ROLE OF LAW ENFORCEMENT IN DUTCH DRUG CONTROL POLICY by Dr. C. Frits Ruter Professor of Criminal Law University of Amsterdam Ladies and Gentlemen, Let me start with two words of warning: First, I am not an expert on drugs. I am a professor of criminal law, chairman of the police complaints committee of the City of Amsterdam and, from time to time, a judge in the Criminal Court of that city. In these capacities I am confronted with the drug problem. But that did not make me an expert on drugs. If I am an expert at all, I am an expert in the field of criminal law and law enforcement. Second, I am not a government official nor a politician. You may find this speech not as smooth as you would like it to be - provided you are a civil servant or politician yourself. I see no reason why we should not be crystal clear about Dutch Drug policy, especially as we have nothing to hide. It is true: we did not manage to create a drug-free society. Holland is not heaven. But the least you can say is that we did not make such a mess of our drug problem as some other countries did. And we might have come closer to the target than many others. Provided you agree that the objective of a realistic, rational and well balanced drug policy is *not* to achieve full employment for police-officers, prison officials and undertakers, *but* to reduce the use of drugs, to bring down the number of new users, to minimize the damage to society, to keep the drug users alive, to let them mature out and to promote social rehabilitation not only in the after-care stage but also during treatment - and all that without giving up civil liberties, democracy and the rule of law. One of the nice things about drug policy in the Netherlands is that it enables you to get an idea what happens when you reduce the role of law enforcement and embark on a policy which is based, as the former Dutch Minister of Justice said, on the idea that drug abuse is primarily a matter of health and social well-being and not of police and criminal justice. The present drug policy, which actually is a fairly decriminalised program to fight drug abuse, has been pursued for nearly 15 years. As a consequence we can offer you not only learned opinions, academic theories, wishful thinking and daring prophecies. Any country can. But many of our drug experts can also offer you the results and experiences of low level law enforcement policies to fight drug abuse. It is my privilege to explain to you the role of criminal law and law enforcement in Dutch drug policy. I will refer to the technicalities of the Dutch legal system only in so far as we need them to answer the following questions: 1) How does law enforcement work within Dutch drug control policy? 2) Are criminal law and law enforcement allies or enemies in the fight against illicit drugs? 3) What are the implications of present drug policy for law enforcement? Dutch Policy not liberal The biggest mistake one could make is to regard Dutch drug policy as a "bahamas faire" policy, just because of the minor role of police and criminal justice - it is not. Nor is it a liberal or lenient one. To many foreigners it may seem strange perhaps, and unorthodox. But above all it is pragmatic and undogmatic. It is a fairly coherent, multi-disciplinary policy which attaches a high priority to the cost-benefit ratio. Misinterpretations I know that many foreigners believe that Dutch drug policy is far too tolerant and in fact a sheer disaster - because of what they see in Dutch cities like Amsterdam. Most of these foreigners, however, are not familiar with the facts and figures of drug abuse and crime in Holland. (The homicide rate in Amsterdam per 100,000 population was less than one tenth of that of e.g. Washington, D.C..) But above all they make the mistake - as we all do when we are abroad - of judging foreign countries, societies and their social phenomena by our own national standards. For visitors from countries where drug users are underground, the visibility of the drug problem in Holland often is shocking: "If this can happen in public, what must go on in secret?". The answer is quite simple: not very much. The big traffickers, of course, have gone underground as the police are chasing them, but generally the small dealers and the users have not. There is no need for them to do so, because they are not the target of the law enforcement agencies. And there is no strong social pressure from the public to go underground. The Dutch do not hide the problems of their society because they do not want them to get out of control. And because Holland is a small, very old and stable democracy in which we the people - decide how we should solve our problems. And one cannot solve them by making them taboo. So we tend to let our problems come to the surface and then discuss and handle them. Although this is good for our society it does have the disadvantage that it occasionally gives Holland bad international publicity. There is - as I said - no need for users and small dealers to go underground, because they are not the target of the law enforcement agencies. this brings us to the role of law enforcement in the fight against illicit drugs. Legislation Holland started from the same point as many other nations: the international drug treaties concluded at the beginning of this century. = Holland enacted its first criminal legislation on drugs as early as 1919 - not because of a national drug problem, but as a consequence of these treaties. In fact, until 1965 there was no drug problem in this country, the number of drug convictions averaged 23 a year, while political interest was extremely limited. In 1961 the Single Convention expanded the number of illicit drugs and laid great emphasis on law enforcement. Holland was confronted with a substantial increase in the use of marijuana and hashish shortly afterwards and of hard drugs later. At first the response leaned heavily on law enforcement; the police and the judiciary dealt severely with drug users. But soon it became clear that this approach was essentially incompatible with the country's traditional way of combating undesirable behavior. Role of criminal law One aspect of Holland which strikes most foreigners is the relatively low level of law enforcement, not only concerning illicit drugs but all types of criminal offence. The Dutch prefer a policy of encirclement, adaption, integration and normalisation over a policy of social exclusion through criminalisation, punishment and stigmatisation. Furthermore, they have no high expectations of law enforcement as a means of solving serious societal problems. Finally, the Dutch would rather see criminal law as an instrument of social control, whose results must repeatedly be assessed from case to case, than as an instrument for expressing moral values. When faced with the task of fighting increasing drug use, the Dutch government became trapped between, on the one hand, the international conventions on narcotic drugs and the pressure exerted by states where criminal law plays a much greater role and, on the other hand, the traditional Dutch views on the limited task, role and scope of criminal law. The Dutch government steered a middle course between these conflicting premises, trying to reconcile its international commitments (prohibition, law enforcement) with the traditional national commitments towards institutional plurality and social experimentalism. Criminal Justice Policy So the Dutch brought their legislation on drugs into line with the international trend. Legislation, however, is not necessarily the same as criminal justice policy. Dutch criminal law provides considerable latitude for such a policy through the "expediency principle": the Public Prosecutions Department is empowered to refrain from bringing criminal proceedings if that is in the public interest. It is a matter of policy whether the Prosecution will act and - if so - how it will act. This policy is laid down in "Guidelines for Investigation and Prosecution". Guidelines In 1976, the year of the change in drug legislation that decriminalized the possession and retail trade in marijuana and hashish (legally known as 'cannabis products' and as 'soft drugs' in plain Dutch), while generally increasing maximum penalties considerably, the Minister of Justice issued Guidelines for the investigation and Prosecution of Drug Offences - thus translating the international enforcement trend in a form applicable to the less prohibitionist, less retributive and less punitive criminal justice policy traditionally pursued in the Netherlands. 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. However, the guidelines specify a much milder approach in the case of four categories: a) drug users dealing in hard drugs in order to provide for their own needs and found in possession of somewhat more than a small quantity: In these 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 cannabis: no specific police investigation, no pre-trial detention and as a rule no prosecution. d) sale of cannabis in small quantities by a reliable person in a youth voor (known as a house dealer): no prosecution unless the dealer trades provocatively or openly advertises his wares. Today's Practice From these guidelines a practice evolved which the Minister of Justice in Parliament summarized 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 monitored and helped by a network of multi-functional organizations providing financial, social and medical assistance. "Soft drugs: the small dealers and users are left undisturbed by the police." In practice this means that the police do not interfere with cannabis sales in youth centers and "coffee shops" unless dealers are selling to people under 16, are selling large quantities, are advertising their business or -most important- are dealing in hard drugs as well. This low level of law enforcement has *not* - to say the least - resulted in a higher level of drug use than in other Western democracies. Or - as the U.S. Consul-General in Amsterdam put it recently: this country has an "unnormally low level of addiction". But it has resulted in an overdose death-rate per 100,000 population which in 1989 was nearly 3 times lower than in West Germany and (in 1988) was 8 times lower than in Switzerland. Value-for-money approach Nevertheless it is somewhat confusing for many foreigners that the law formally declares certain acts to be punishable but that law enforcement agencies do not actually prosecute them. Why do the Dutch prosecute some crimes like murder and rape and leave others unpunished? The answer is that we have a pragmatic value-for-money approach. After defining our objective, we take a close look at the means that we have at our disposal to achieve that objective. Take for instance the cannabis situation in Holland before we changed the law in 1976. Until then no legal distinction was made between cannabis products and other drugs. Cannabis was forced into the criminal sphere together with hard drugs, it was sold in the same places and frequently by the same dealers: cannabis was fully integrated in the criminal and hard drug scene. The Dutch Government decriminalized the possession and retail trade of marijuana and hashish because it feared that the unintentional effect of law enforcement might be that the use of marijuana and hashish would act as a stepping stone to the use of hard drugs. This decriminalization policy was intended to separate the markets for - and consequently the users of - cannabis and hard drugs. This policy has been successful: the markets *were* separated and the overwhelming majority of cannabis users did *not* graduate to other drugs. The experience of over 12 years has shown that - at least within the Dutch context - the stepping stone theory does not have to become true. And the number of new users did not increase after the decriminalization of cannabis products despite the fact that marijuana and hashish became more freely available in Holland (1). This is even more remarkable when compared with the situation in West Germany, our neighbor, where the sale and possession of cannabis are a serious criminal offence and prosecutions are brought. The percentage of young Germans who admit to ever having used cannabis (lifetime prevalence) is higher than in Holland (2). Rethinking the Role of Criminal Law The importance of Dutch drug policy and its results lies in that it encourages us to rethink the role of criminal law and law enforcement in coping with drug use. We all know that for nearly 30 years penal provisions and law enforcement have clearly been unable to prevent illicit drugs from being sold on a large scale and from being used by millions and millions of people all over the world. Is this due to an inadequate level of investigation and prosecution, to light sentences, to a lack of powers for the police or to deficient international cooperation? I put it to you that criminal law is structurally unsuitable for the fight against drug trafficking. == =============== 1. According to some researchers, the use even decreased slightly. 2. German youth 14%, dutch youth 6%, (1983). Ch. D. Kaplan, The uneasy concensus. Tijdschrift voor Criminologie 1984, P. 108. Criminal Law must fail Criminal law fails despite extensive penal provisions, intensive law enforcement and severe penalties. And it *must* fail because of two simple and well-established truths. Firstly: demand creates supply and thus provides the impetus to do what, in the case of illicit drugs, is prohibited by the law, and secondly: never in the history of mankind has criminal law succeeded in completely eliminating proscribed behavior, not even when the law was backed by almost universal public understanding and support. We all know that. We have become accustomed to the idea that the criminal law can never prevent more than a given proportion of crime. Theft, rape and murder will always be with us and yet no one argues that these acts should be decriminalised because the criminal law has failed to eliminate them entirely. We just accept the deficient operation and limited success of the criminal law because the position that has been reached is the best one possible given the circumstances. But: things are different in the case of drug use because the deficient operation of the law takes us even further away from our goal. What happens, after all? The trafficker sells drugs in order to make money. If his profits were to dry up or be exceeded by the costs he incurs, he would go out of business and drugs would no longer be supplied. Seizure of drugs In theory his profits could dry up if it could be ensured that the drugs do not reach the customer. Naturally, the criminal law is not needed for this purpose. Any agency could confiscate illicit drugs. Yet it might be supposed that the law enforcement agencies, given all their resources and powers, would have a great success rate in the seizure of drugs. This, however, is not true; a 10% seizure-rate is the most optimistic estimate. Costs passed on The other course of action would be to allow the cost to rise so much that the traffickers have to work at a loss. This too cannot be effected through law enforcement. Of course, law enforcement measures push up the costs for the trafficker, but they have little effect because he simply passes the extra costs on to the consumers, who in turn pass them on to the general public. the latter are forced to finance the drugs market as the victims of theft, embezzlement, burglary, robbery and other drug-related crimes. So the price mechanism simply does not work. No shortage The seizure of drugs and the arrest of traffickers have little effect as well because both drugs and traffickers are quickly replaced. the enormous profits ensure that shortages occur hardly ever. Even worse: when a young dealer can make 500 dollars a day, this will influence the behavior of his peer group far more than any drug education program can possibly do. Seizure of profits Seizure of the profits from the drug trade - which at present is the subject of international negotiations and conventions - can only succeed if there is worldwide solidarity. Unfortunately this is in short supply. I need only say "Switzerland", "The Bahamas" or "Luxemburg" and you know what I mean. Law Enforcement not an Ally So far we have seen that law enforcement is a weak, highly overrated and grossly overpaid ally. That is dangerous enough when you are waging a war relying almost exclusively on that ally. But the situation is worse. When we take a second look it becomes obvious that law enforcement is not an ally at all. The inevitably deficient operation and limited success of the criminal law transforms the drug trade into an entrepreneurs' paradise, creating and maintaining a black market which guarantees huge tax free profits and stabilises supply and price. Law enforcement does not, therefore, deter the trade. Instead it encourages drug trafficking at every possible level and it is fostering an international mafia whose immense income, highly developed criminal organisation and far-flung interests are enabling it to extend its sphere of influence into legitimate business and into governments. In the drug war, therefore, law enforcement is not an ally: it is a traitor. Criminal Justice System in Peril But there is something else: our Criminal Justice System is in peril. As a lawyer, I am very worried about the risk that we may lose the criminal law as a means of social control in those cases in which it still does work (albeit not perfectly) and in which it is indispensable for a just and peaceful democratic society. By attempting to use the criminal law to attain the unattainable, we are burdening the criminal justice system with such problems that it can no longer satisfactorily discharge its role of limiting the other forms of crime. First of all, this is a quantitative problem. Our criminal justice system is being flooded by drugs cases. It is getting blocked up. Even in this country with its low level of law enforcemnet. It is estimated that the Dutch police spend nealy half their time on investigating drug trafficking and drug-related crimes. Over 75 per cent of the suspects taken into police custody in Amsterdam are connected with drugs in one way or another. In some of our prisons nearly 50 percent of the inmates are drug users or dealers. But in addition to this the quality of the criminal justice system is seriously at risk. The decision to use the criminal law in the fight against undesirable behaviour is taken not because this is the easiest path but because we wish to conduct that fight in accordance with the rule of law. Because of the strong pressure to score, to win the war on drugs, there is an increasing tendency now to alter the order of priority: success becomes more important than observing the rules of law. Law enforcement organisations that decide to operate outside the bounds of the law when need arises are in fact out of control. Since they have lost their integrity, they are susceptible to widespread corruption, in this way they become a greater threat to a democratic society than the very evil they were trying to eradicate. Conclusion What can we conclude from all this? Thirteen years of experience with a decriminalised marijuana policy has proved that decriminalization might be a better way of restricting drug abuse than prosecution and punishment. At least - I should add - within the Dutch context. I do not want to recommend our national approach as the one and only way to deal with the problem and as a must for all nations. No two societies are the same. What works well in Holland might be a disaster in another country - and vice versa. On the other hand: the Dutch approach with its low level of law enforcement is not unique. There are other countries (1) in which the possession and dealing of small quantities of soft or hard drugs are not prosecuted or are not a criminal offence at all. And the world is changing. You won't be surprised to hear that a lot of high ranking Dutch police officers with a long-time experience in drug control are in favour of further decriminalisation. But would you expect Germans to engage in a debate about drug legalization or even advocate the adoption of a decriminalized policy? Nevertheless, that is exactly what is happening now in Germany - when the Union of West German Police Officers presents an extensive study (2) advocating the legalization of all illicit drugs as the only sound answer to the drug-and-crime problem. Or when the government of the city of Hamburg adopts harm-reduction policies towards drug users, including the distribution of methadone on a maintenace-basis, inspired by the Dutch example. And even in Switzerland - until now firmly on the American side in the War on Drugs - the Federal Government, after a formal initiative of the Canton of Berne, is on its way to legalise the possession and consumption of soft and hard drugs. I think that despite all kinds of official statements and international agreements that might give the impression of a worldwide support for the War on Drugs as waged by the American governemnt, its allies and friends are, silently and one by one, leaving the battlefield - and it won't take very long before the United States will be standing there quite alone. **** ___________ 1. E.g. Denmark, Italy, Turkey, Great Britian, Japan, Poland and Yugoslavia. Int. Survey on drug-related penal measures. Prepared by UNSDRI for the UN Int. Conference on Drug Abuse and illicit trafficking. Rome, 1987. 2. Berndt Georg Thamm, Drogenfreigabe - Kapitulation oder Ausweg? Vertag Deutsche Polizeiliteratur, Hilden (W. Germany), 1989, 396 pp. ISBN 3-8011-0183-5 (end)