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Connolly, Johnny (2013) Beyond criminalisation. Drugnet Ireland, Issue 47, Autumn 2013, pp. 9-10.

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The dominant paradigm for understanding the effects of drug laws is the rational choice perspective derived primarily from classical economic theory. This theory rests on the assumption that people are rational actors capable of evaluating the consequences of alternative choices. It also assumes that human behaviour is essentially hedonistic and motivated by the desire for pleasure and the avoidance of pain. The purpose of the criminal law is to make the punishment for criminal behaviour greater than the pleasure to be derived from it.  

The distinctive features of deterrence were described by McLaughlin (2006)1: 
Deterrence requires three key elements:
·                     The certainty of apprehension, conviction and punishment.
·                     The severity of the punishment to be greater than the potential benefits of the criminal act.
·                     The clarity of punishment to ensure that the offender is in a position to make the link between her/his punishment and her/his criminal behaviour. (p.125)
When applied in the context of the decision to use illicit drugs, the rational choice perspective emphasises three factors that impact on decision-making: the drug’s availability, the price of the drug and the risk of apprehension and punishment. Drug laws aim to restrict supply and availability, thereby increasing the price and discouraging use. Although drug policy and drug law enforcement rests heavily on deterrence theory, little research has been conducted in Ireland on its effectiveness in deterring drug use and drug dealing.
In the Irish context, O’Mahony (2008)2 situates the Misuse of Drugs Act 1977 ‘at the heart of the prohibitionist system and the manner and effectiveness of its enforcement to a significant extent defines the reality of the Irish “war on drugs”’ (p.68). The Act was introduced in the context of a relatively non-problematic drug scene in the mid-1970s, but one that would soon escalate. In the mid-1990s with the resurgence of the heroin crisis and, in particular, following the assassination of Veronica Guerin by people involved in the drug trade, a series of further quite draconian legislative measures were adopted, including the establishment of the Criminal Assets Bureau, enhanced Garda detention powers, restrictions to the bail laws, provisions to respond to organised crime and mandatory sentencing provisions in drug cases. This process of legislating in response to crisis has been described by many legal commentators as a form of legislation by ‘moral panic’.3
When considering the impact of criminalisation it is important to move beyond the often heated rhetoric that can accompany debates about drug laws and the so-called ‘war on drugs’, and analyse how precisely the laws we have are actually implemented on a day-to-day basis by the Garda Síochána.

 Figure 1 shows trends in prosecutions for the main drug offences of supply and possession between 1993 and 2005. It is clear from these data that the vast majority of drug offences prosecuted are for the simple possession of drugs for personal consumption, with seizure data showing that this is mostly cannabis-related. 4 The large spike in such prosecutions between 1996 and 1998, it is suggested, was a consequence of the Veronica Guerin murder. Despite the intense political reaction to this event, it is apparent that actual drug law enforcement involved merely a sharp but temporary increase in simple cannabis possession charges, primarily as a consequence of routine Garda ‘stop and search’ activity, while supply offences increased only marginally.5 

Furthermore, it is important to consider against whom such ‘stop and search’ powers are generally employed. The reality of day-to-day police work is that it involves a significant degree of discretion in terms of how and against whom police powers are typically directed. Research in other jurisdictions has shown how police ‘stop and search’ powers are often used disproportionately against ethnic minority and socially marginalised groups.6 Irish research in this area is limited. However, although a large number of middle-class people in Irish society regularly consume drugs, often on a recreational basis, the profile of the ‘drug criminal’, as reflected for example in those who end up imprisoned for drug-related crime, has remained consistent over time. They are typically young working-class males who left school early and are from areas with high levels of unemployment or they are ‘drug mules’ who perform relatively minor roles in the overall drug trade.7
The evidence suggests that drug availability and use and drug-related criminality appear to have been largely unaffected by the many new legal measures referred to above as illicit drug markets have penetrated more deeply into the fabric of many communities; these markets have become more diverse in terms of the drugs available, populated by ever-younger people and more violent. Meanwhile, drug prices have declined throughout Europe in recent decades. This is not to suggest that drug law enforcement has no value. As Roberts et al. (2005: 2) point out, ‘failure to reduce prevalence does not mean that supply reduction initiatives (and, specifically, law enforcement) are having no impact on drug markets. It is widely – and reasonably – argued that supply reduction contains the expansion of drug markets, even if it fails to reduce markets.’ 8 
However, the failure of prohibition/criminalisation to significantly reduce drug use and availability, the resilience and adaptability of illicit drug markets in the face of highly-resourced drug law enforcement, coupled with the often negative consequences of prohibition, has led to calls for a fundamental re-examination of the international system of drug prohibition. These calls have come from countries at all levels of the international drug trade – production, transit and consumption. Policy options advocated include changes to the legal status of drugs, whether through direct legalisation or some form of decriminalisation, and a realignment of the balance between criminal justice and harm reduction approaches.
The recent ‘head shop’ phenomenon in Ireland should send a note of caution to advocates of drug legalisation in this country. The evidence from this experience suggests that legalisation in a free market economy would lead to an increase in experimentation and use by young people as a consequence of increased availability and aggressive marketing.9 A liberalisation of drug laws would also be counter to recent moves towards greater regulation in relation to tobacco and, increasingly, to the other principal mind-altering substance in Irish society, alcohol. Another question that advocates of legalisation need to address is: How will legalisation improve the situation in those communities where the sale and use of drugs have had the most pernicious effects?
On the other hand, there is evidence about the beneficial impact of decriminalisation, at least as it has been introduced in Portugal.10 The Portuguese experiment, which involves decriminalisation within the context of an overall harm-reduction approach, has led to a number of positive outcomes, including a large reduction in drug-related deaths. Although it initially led to a slight increase in drug use among some groups, this was not sustained over time. It now has broad political support, even from former opponents of the strategy.
1.     McLaughlin E (2006) Deterrence. In McLaughlin E and Muncie J (eds) The SAGE dictionary of criminology. 2nd edition. London: SAGE.
2.     O’Mahony P (2008) The Irish war on drugs: the seductive folly of prohibition. Manchester: Manchester University Press.
3.     Cohen S (1980) Folk devils and moral panics: the creation of mods and rockers. Oxford: Martin Robinson. For an Irish application of ‘moral panic’ theory see: Hamilton C (2005) Moral panic revisited: part 1. Irish Criminal Law Journal, 15(1): 8–12.  
4.     For further discussion of these data see: Connolly J (2005) The illicit drug market in Ireland. HRB Overview Series 2. Dublin: Health Research Board; and Connolly J (2006) Drugs and crime in Ireland. HRB Overview Series 3. Dublin: Health Research Board.
5.     It should be noted that the intelligence-led nature of supply-level enforcement means that far more resources are involved in this police activity.
6.     For a discussion see Reiner R (1997) Policing and the police. In Maguire M, Morgan R and Reiner R (eds) The oxford handbook of criminology. 2nd edition. Oxford: Oxford University Press.
7.     See article on mandatory sentencing elsewhere in this issue.
8.     Roberts M, Trace M and Klein A (2005) Law enforcement and supply reduction. Drugscope report for the Beckley Foundation Drug Policy Programme. Report 3. Oxford: Beckley Foundation. http://reformdrugpolicy.com/library/
9.     Kelleher C, Christie R, Lalor K et al. (2011) An overview of new psychoactive substances and the outlets supplying them. Dublin: National Advisory Committee on Drugs.
10. Connolly J (2009)Report examines effects of decriminalisation of drugs in Portugal. Drugnet Ireland, (30): 22–23.

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