TNI-EMCDDA Expert Seminar on Threshold Quantities

Transnational Institute
Lisbon
January 20, 2011

A wider trend for drug law reform is arising out of a felt need to make legislation more effective and more humane. Within this trend, a number of countries have considered decriminalisation or depenalisation models and many have, at least initially, considered threshold quantities as a good way to distinguish between what is possession and what is supply or trafficking and as a means to ensure that the sentences imposed are proportionate to the harmfulness of the offence.

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The TNI-EMCDDA Expert Seminar on Threshold Quantities reflected on theadvantages and disadvantages of threshold quantities as a policy andlegislative tool and it was hoped that this seminar would provide aspringboard to inform current debate and to assist the elaboration ofevidence-based drug law reform proposals now and in the future.

Whilst it was clear that the majority of countries set threshold quantities for both use and supply offences, on the other hand some countries do not utilize threshold quantities at all. Rather, to delimit personal use from supply and to gauge correct sentencing levels, there is a discretionary system, overseen by the judiciary and (for minor offences) also, by the police. In such a system the amount of a substance is not seen as determinative on any level, but rather as one factor amongst many others and it is recognized that there are many factors which may result in someone being in possession of a higher quantity of drugs, without being involved in supply or trafficking, and none of which should result in the individual being punished as a trafficker; in this way the presumption of innocence and proportionality in sentencing are safeguarded. Examples of where someone may be in possession of a large amount of drugs for personal use include: bulk-buying to limit contact with the criminal market; use of drugs for medical purposes that make it difficult to access the market regularly; problematic drug use that has resulted in higher tolerance levels.

Participants discussed that although the international framework allows for distinc-tions to be made between users and traffickers and does not prohibit the use of threshold mechanisms – no particular model is promoted at the UN or EU level. In fact, the European Commission had specifically considered and rejected the idea of uniform EU thresholds in 2001 because of the different purposes for which they are used across the various jurisdictions and the fear that, as a result, a uniform threshold would be unworkable. Whether this decision was correct, however, or whether further efforts needed to be made to find a workable model that could address the arbi-trary and disproportionate outcomes that result from different schemes being in place, became the main issue of the day with advocates on both sides.

Conclusions

It had not been expected, over the course of one day, to determine what the correct threshold quantities should be for all the different substances across the EU and beyond, nor, definitively what factors should or should not be worked in and out of such calculations. Indeed, the importance of local context and the need for a broader package on which all were agreed, meant that this would not have been appropriate in any event. Saying this, participants felt drawn, already, to certain conclusions and were also able to highlight various dilemmas as well as gaps in data that required further study.

First, it was broadly agreed that setting some sort of distinction between users, small traders, and bigger traders, is important. It was said that if threshold quantities can be of assistance in such a task, the aim of which is to introduce more rationality and proportionality to drug control systems and thereby humanize those systems, they would have great value. In such circumstances, it was emphasized that producers and growers not be forgotten. It was also said that threshold quantities should be a means not an end, and care should be taken that perverse consequences do not result, for example, more users being incarcerated. It was felt that this could only be achieved by clarity in policy objectives, moderation of policy outcomes with data collection, and flexible schemes that allow revisions easily where the evidence base or salient local factors change or where negative unintended consequences emerge.

As to whether threshold quantities should be used to achieve such policy purposes at all, there were clearly different opinions in the room and competing advantages and disadvantages had been debated hotly, as reflected in the report of the discussion. Certainly, though, it was amazing to many, how few schemes had been based on rigorous scientific study. Transforming this dilemma as to the merits of threshold schemes into a conclusion, it was said, is work that requires further data collection and analysis. Going forward, it was said, any hope that policy recommendations would be taken up by policy-makers would depend on the pragmatism of the recommendation and their ability to translate into cost-savings or other attractive goals to do with public health or confidence in the criminal justice system, for example. Work should begin on measuring the impact of threshold quantity schemes against their stated aims with a particular focus on detention rates before and after their implementation.

Second, where threshold quantities are used, they should be part of a comprehensive package that involves health care, and that does not forget the need to resource and support the institutions and train the officials tasked with implementing the scheme. The whole package should also allow scope for the taking into account all the circumstances of an offender and an offence to ensure that proportionate outcomes are achieved. Likewise, any threshold quantity scheme should be non-binding and should be clear and practical for both citizens and the authorities. Also, where administrative sanctions are brought in, it should be ensured that these are not, in practice, more punitive than criminal justice sanctions. Moreover, any such package should be underpinned by local factors.

It was agreed that no one model is possible, not even across the EU: legal systems, police operations, corruption levels, prevalence and patterns of drug use, and their harms as well as the robustness and resources available to the institutions and officials tasked with overseeing and enforcing the schemes vary so much that this would be unworkable. The importance of local factors was therefore considered paramount but it was also felt that some guideline matrix to assist policy makers in finding the right model for them, bearing in mind local circumstance, the best available evidence, and the need to ensure more continuity across jurisdictions, should be achievable.

As to dilemmas, whether a rigid threshold quantity scheme is required at statutory level or whether such important distinctions should be left to the judges or police was felt to be something quite mutable and very much dependant on local factors. This was even though it could be said in principle that in a functioning judicial system discretion would afford the most proportionate and humane response because there were no examples available in practice of a perfectly functioning discretionary system. As such, a balance between discretion and threshold quantities would be needed in most jurisdictions, supported by comprehensive training for decision-making officials.

In conclusion, the fact that threshold quantities were clearly a live issue at play across so many different jurisdictions, confirmed the relevance of the Expert Seminar initiative and it was certain that it had afforded a useful mechanism for knowledge exchange. It is therefore hoped that work will continue on this increasingly important subject, especially in terms of research and analysis, and, further to this, TNI intends to deliver a policy briefing on this subject later this year.

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