Mark Kleiman makes the case that there’s less than meets the eye to Portugal’s drug decriminalization and it doesn’t really tell us much about drug policy options:
Simple drug use rarely leads to incarceration. There’s not much evidence that the threat of arrest does much to discourage potential users. “Decrim” laws are generally passed in places where there already wasn’t much anti-user enforcement. According to the Cato analysis by Glenn Greenwald purporting to show that Portugal’s policy change was a success, Portuguese police made between 1500 and 2500 drug-possession arrests per year in the period before decriminalization. That’s out of a population of 10 million. The reported rate of illicit drug use is something over 3%, suggesting that the annual risk of arrest for Portuguese illicit-drug users was something under 1%. Neither the Greenwald report, nor the study by Hughes and Stevens published in the British Medical Journal gives any figures on criminal penalties for users, but Greenwald reports that the annual number of administrative proceedings against users after the new law has been more than twice as great as the number of possession arrests before the law. Has the overall deterrent against drug use gone up, or down? It’s hard to say.
Overwhelmingly, drug enforcement is directed at dealers, not users. Decrim doesn’t change anti-dealer enforcement at all. It therefore doesn’t make drugs cheaper or easier to get. So it doesn’t provide much of a test of the effect of legalization on consumption. By the same token, it doesn’t reduce the arrest and incarceration of dealers, crime incident to the markets, or crime by users to get money for drugs. (Insofar as consumption goes up, all those things tend to get worse, not better.)
This is a very enlightening analysis from Kleiman, but I’m not sure why it’s presented with so much scorn and so little praise for decriminalization of possession. Rarely enforced criminal penalties for drug possession are, on this telling, basically nothing but an invitation to abusive selective enforcement. One might think that despite the lack of practical enforcement, theoretical criminal penalties for possession had some large deterrent effect that improves public health. But the Portugese experience seems to indicate that that’s not the case. And, indeed, Kleiman’s bottom line is that “I’m for decriminalization, not just of cannabis, but of other drugs as well.” So—great!—let’s do it.