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)