This report, prepared by the foreign law specialists and analysts of the Law Library of Congress, provides a review of laws adopted in Argentina, Australia, Brazil, Canada, Costa Rica, the Czech Republic, Germany, Ireland, Israel, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, and Uruguay with regard to legalization, decriminalization, or other forms of regulation of narcotics and other psychoactive substances. Individual country surveys included in this study demonstrate varied approaches to the problem of prosecuting drug use, possession, manufacturing, purchase, and sale.
The country surveys demonstrate some diversity and common threads among these jurisdictions as to defining narcotics, distinguishing between “hard” and “soft” drugs, establishing special regulations concerning cannabis, refusing to prosecute personal use and/or possession of small quantities of drugs for personal use, giving law enforcement authorities the discretion not to prosecute minors and first-time offenders, applying alternative forms of punishment, and providing treatment opportunities. The following approaches toward decriminalization of narcotics were identified:
- Production, marketing, and consumption of marijuana is legalized and regulated (Uruguay);
- Drugs are prohibited but the sale and use of soft drugs is tolerated and regulated (Netherlands);
- The personal possession and use of small amounts of drugs is not penalized while other drug-related activities are prohibited (Costa Rica, Czech Republic, Mexico, Portugal); and
- Treatment and alternative punishments for minor drug offenses are allowed (Argentina, Australia, Brazil, Germany, Israel, New Zealand, Norway).
While most of the countries reviewed do not prosecute individual drug users or have an option for avoiding their criminal prosecution, in general, possessing, manufacturing, and trading in drugs is prohibited. The Czech Republic made the possession of drugs legal after the collapse of the Communist regime but reinstated the penalties for possession in “larger than small” amounts shortly thereafter.
Most of the countries differentiate between soft and hard drugs, listing cannabis as a soft narcotic, and two countries, the Netherlands and Uruguay, provide for special cannabis-related rules. While in the Netherlands marijuana is still classified as an illicit substance, these two countries tolerate and regulate the use of cannabis. Other jurisdictions provide for less strict or suspended punishment, or substitute traditional punishment with voluntary addiction treatment, community work, or other forms of alternative punishment if someone is caught using or dealing soft drugs. Additionally, New Zealand regulates the production and sale of so-called “new psychoactive substances,” such as party pills and synthetic cannabis. Previously unregulated and sold without restrictions, these drugs recently became subject to government control, including the regulation of their sale. In Germany, even though drugs are divided into different schedules, for law enforcement purposes all narcotics are treated equally, and the distinction between soft and hard drugs can only be considered at sentencing, taking into account associated risks and damages.
In all of the countries reviewed such drug-related offenses as distributing drugs, possessing them in large amounts, cultivating plants containing a narcotic substance, producing drugs and possessing items for their production, etc., are recognized as crimes. Meanwhile, the possession of drugs for personal use in small amounts is no longer a criminal offense in some jurisdictions, but rather a misdemeanor subject to a monetary fine or other nonpecuniary punishment. These jurisdictions include Brazil, the Czech Republic, Norway, Portugal, and the Australian Capital Territory. An interesting example is provided by Costa Rica where the use of narcotics, including personal use, is prohibited by law but no penalty for this violation is found in the Criminal Code. In Argentina, the possession of narcotics remains illegal but the Supreme Court has ruled that “private actions of individuals are exempt from the authority of judges as long as they do not offend or injure others,” declaring penalties against an adult who consumed marijuana unconstitutional.
Costa Rica, Germany, Israel, New Zealand, and the Australian State of New South Wales are among those jurisdictions where the police, prosecutors, or courts have discretion to drop charges if a minor offense involving prohibited drugs has been committed for the first time and the accused person is willing to undergo addiction treatment.
The possession and use of narcotics is a crime under the laws of most of the countries included in this report. However, in some countries medical treatment is prescribed for those found in violation of drug laws or can be chosen by the accused person as an alternative to traditional punishment. Mexican law requires that individuals found in possession of limited quantities of narcotics be referred to addiction treatment programs. In Norway a minor drug offender can opt to enroll in a drug treatment program instead of going to prison, but violation of the treatment program conditions will place the offender in jail. In Argentina a judge may replace imprisonment by detoxification and rehabilitation treatment. Special treatment for children is prescribed by the laws of New Zealand.
It appears that where decriminalization of drug-related activities has occurred, it was done with the purpose of securing the health and safety of the individual and the public. Even in those countries where the use of some drugs is allowed (Uruguay), advertising or promoting drugs, or consuming them in a public place, is prohibited. Dutch legislation emphasizes that coffee shops are prohibited from advertising drugs and causing a nuisance. The reduction of harm from drug use is the declared purpose for the creation of varied medical and social service facilities (e.g., needle exchanges, drug consumption rooms). However, even the authorization of such services by law (Germany, Netherlands, Portugal) has not resulted in the legalization of narcotics.
Information on pending proposals for the legalization of cannabis in Canada and South Africa, and decriminalization of the possession of small amounts of heroin, cocaine, and cannabis for personal use in Ireland, is also included in the report.
Prepared by Peter Roudik
Director of Legal Research
Last Updated: 07/25/2016