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Crime and Punishment - 4 Drug Possession and other forms of Victimless Crime

Many a true word spoken in jest. This appeared in response to two recent news items. One was that Australia's Capital Territory (ACT) will no longer prosecute possession of small quantities of recreational drugs and the other that the cost of basic foods -especially staples such as the iceberg lettuce, had gone up astronomically in recent weeks, suggesting that suppliers may in future make more money from growing lettuce. Nor it isn't as silly as it sounds. Establishing community gardens would most likely solve more social problems than throwing people in gaol.



Why legalise drugs?

 Prohibition is expensive and doesn’t work 

According to  O’Neill Hayes and Barnhorst, fully one quarter of the 2.2 million of those in prison in the USA  - that's around 600,000 people were there because of drug related crimes, most of them minor. In 2022,  14% Australia's prison population was there for the same reason. The European  average is 249 people, per 100,000 of population, but it varies greatly from a high of 1200 in Sweden and 650 in Luxembourg, to less than 100 in the Netherlands, Italy, Portugal and Spain, depending on the law in a particular country, attitudes and how such crimes are recorded.This may relate to the type of penalty if caught. Germany for example, has none for possession but both Sweden and Luxembourg have prison terms. You can see more here.

While few people think that drug and other substance abuse are entirely harmless, most efforts at prohibition have not only failed dismally, but consumption has continued to rise, despite the threat of imprisonment. The majority of people gaoled for drug offences do not receive the help they need. This means that most of them cycle in and out of gaol without being able to improve their lives or making the community any safer. When drugs are illegal, they attract high prices which can, but doesn’t always, lead to petty crime. The big money involved also attracts organised crime. When drugs are illegal, people are unlikely to seek help, especially in the event of overdoses.

Locking up small -time drug users increases stress, exposes them to violence and disease and exacerbates any existing mental health issues. Abrupt withdrawal often leads to suicide, the leading cause of death in prisons, followed closely by overdoses either inside prison or immediately upon release. Needle -sharing and the use of unknown substances adds to health risks including the spread of diseases such as HIV and Hepatitis unless entry protocols such as those recommended by the EU are closely followed. If skills training and other social supports do not follow on release, there is even less likelihood of rehabilitation. Read more in the excellent article on the management of  substance abuse in EU prisons here.

While we might not want to go as far as the Portuguese, who have decriminalised all drug possession, it certainly means that people are not afraid to to come forward and seek help in the event of addiction, overdose or infection. Seeing drug use as a medical problem rather than a law and order issue may add to the burden on hospitals, but it means a great deal less work for law enforcement, the courts and the entire justice apparatus as well as depriving criminal elements of customers.

The Australia's Capital Territory (ACT) which decriminalised possession of small quantities of cannabis in 2020, has just announced that it will no longer prosecute people for possession of other recreational drugs such as cocaine, heroin and ice. It will however continue to focus on catching drug dealers and those who seek to import larger quantities of drugs.  

The middle road is perhaps best represented by Canada. As soon as medicinal cannabis from licensed outlets became legal in 2011, incarceration rates dropped by over half from 325 per 100,000 people. In 2018 possession of less than 30 grams for personal use was fully legalised and except for Ontario and Quebec, households were permitted to grow up to four plants. Selling near schools or other places where young people congregate is still an offence as is driving under the influence and Canada still prosecutes traffickers, producers and distributors who sell drugs illegally. Canada also taxes cannabis sales, netting in the order of $618 million initially, but expects cannabis sales to become a billion dollar source of revenue in future. 

 Thailand is perhaps an example of what not to do. On June 9, this year Thailand, completely decriminalised cannabis consumption but has already had to backtrack somewhat in recent days  by forbidding its use in public places and sales to people under 20, pregnant women and breastfeeding mothers. For more on why punitive approaches to drugs don't work see the article about what happened in the UK once funding for social services was cut and drug use was criminalised.

Other forms of Victimless Crime


Although most countries have now repealed laws against vagrancy - being homeless and or without visible means of support, the UK did not do so until 26/4/2022 and large numbers of people continue to be gaoled for 'crimes' related to homelessness and poverty such as sleeping rough, in cars or on the street, for disorderly conduct, loitering or begging. In their analysis of prison populations in the USA, for example, O’Neill Hayes and Barnhorst (2018) note that one quarter of an estimated 550,000 homeless people reported having been arrested for activities related to homelessness. Some 9%  of cities have even outlawed giving food to the homeless, which merely transfers the problem to someone else. According to O'Neill Hayes and Barnhost, this sets up a vicious cycle where if you are homeless you are 11 times more likely to end up in prison and if you have been in prison, you are ten times more likely to end up homeless.

It's a great pity that the vast amounts which are spent on law enforcement aren't spent on simply housing people instead. During the pandemic Australia had the interesting experience that once people had been decently housed and were able to shower and take better care of themselves, 40% of them were able to find work. Sadly, that's long forgotten now as income levels for the unemployed and other welfare recipients have once again fallen well below the poverty line. Countries such as Finland and Denmark which deal with their housing problem, also have very low numbers in their prisons. Sweden and Finland for example, began the journey away from criminalising homelessness towards social assistance as far back as 1936.
I don’t know how it is in other countries, but in Australia at least it is partly a jurisdictional problem. While prisons are paid for out of federal and state budgets, housing issues are left to local authorities with limited resources. This highlights the need for a federal approach which would also avoid the Salt Lake City problem, mentioned above.   

Consensual activity between adults

Over the last 50 years or so the emphasis, particularly in western countries, the focus of law enforcement has shifted away from what adults do willingly with each other towards preventing violence, abuse and other harm which some people inflict on others, especially those who are most vulnerable. Not everyone is in agreement here. Those countries with strong religious constituencies have tended to oppose these trends or at the very least move more slowly. Elsewhere activities such as  adultery, homosexuality and prostitution are slowly being decriminalised. 


With respect to adultery for example, most countries no longer regard it as a criminal offence, with Taiwan (2020), India (2018), and South Korea (2016) being among the latest to do so. The only exceptions now appear to be some some Nigerian states, 15 Muslim countries which follow Sharia law though prosecutions are rare except in Iran and Somalia, and the Philippines, which is considering decriminalisation. What does come as a bit of a shock, is that 16 US states still have such statutes on their books, though again, prosecutions are rare. As Secretary General of Amnesty, Salil Shetty said in 2014, 

 "It is unbelievable that in the twenty-first century some countries are condoning child marriage and marital rape while others are outlawing abortion, sex outside marriage and same-sex sexual activity – even punishable by death."

Homosexuality and same - sex marriage and marriage equality

There are still 74 countries where homosexuality remains illegal. Although Russia and its semi -autonomous region of Chechnya do not have anti- gay laws, other than to forbid ‘homosexual propaganda,” homophobia remains strong. There are reports of 100 men being detained in illegal prisons in Chechnya in 2017, where they were beaten and tortured and three of them were killed. 

As of July 2022 when Switzerland changed its laws, same -sex marriage has become legal in some 30 countries. Full marriage equality is not always the same thing, but grants non - heterosexual couples the same rights in law as conventional marriages. This means the same welfare provisions, the right to inherit and so on. This first became important when same -sex partners of AIDS victims were not admitted to hospitals to be by the bedside or give authority for medical treatment because they were not next of kin.


The main concerns with prostitution are the risk of spreading diseases such as STDs or AIDS,  exploitation or coercion, especially of minors, and the involvement of organised crime. Believing that a regulated industry is easier to control, Denmark for example, decriminalised prostitution in 1999, but forbids third party involvement such as procuring, trafficking and solicitation of minors.

 With various permutations prostitution is now legal in 77 countries and in a limited way in 11 others, Among western countries, the USA once again stands out by making prostitution illegal in all states except some parts of Nevada.  

I can’t begin to list all the permutations here, but here a few broad examples. In the UK for instance, prostitution is technically legal, but brothels are outlawed as is solicitation and any form of advertising. Germany by contrast treats prostitution like any other work, with registration and regular health checks required and deductions for social security and pensions. Sex workers also pay tax and the industry is believed to contribute some $6 billion to GDP. Despite being legal nationally, individual cities have the right to ban prostitution if they wish. 

France, Canada  and Italy fine those who seek such services rather than punishing sex workers. Although prostitution is legal in Canada, brothels, pimping and marketing are banned and France additionally tries to find safer employment for sex workers, including those who are illegal immigrants. The client may also be charged in  Sweden, Northern Ireland and Iceland.

Switzerland on the other hand, allows brothels and designated red -light districts but not street solicitation. It also requires registration and regular health checks. Australia has a a whole lot of different regulations, mostly variations on the above, because they are determined by individual states. 

In Asia there is a major disconnect between the law and practice. While prostitution remains illegal officially in most Asian countries, some countries such as Thailand and Japan turn a blind eye to bar work and dance clubs, or bath or massage services which may or may not include sexual services, so long as payment is for drinks or other services rather than sex. For more detailed discussion on the laws which apply in different countries click here or here. For penalties which apply in various US states, click here and for arrests by state, click here.

The case for legalisation and decriminalisation

Though people may turn to sex work for a variety of reasons including personal choice, it is overwhelmingly a crime of poverty involving the already marginalised as evidenced by upswings during the pandemic in the UK or during the 2008 -9 Global Financial Crisis in Greece. There is no doubt either that the sex tourism industry which flourishes in places such as Thailand, Brazil and Kenya, exploits people in poor countries desperate to make a living, even as it boosts GDP and livelihoods in the travel and hospitality sector. This means that law enforcement is often lax and open to corruption, even where sex work is officially banned. Although prostitution is illegal in most African countries, widespread poverty and social disruption makes it not only common, but also make it a major driver or AIDS/HIV. However, these problems are not confined to poor developing countries.

Of the USA , Kirk, Gwyn; Margo Okazawa-Rey (1998) write,

“Women in the US criminal justice system are marginalized by race and class. Single mothers with low income go into the "underground economies" because of their inability to find a job that is stable and provides a good earning.[128]

Imprisoning people  - overwhelmingly women, makes their situation very much worse and also sets up an unfortunate cycle where they are even less able to obtain other work due to having been in prison and may set them up for further exploitation.. If we want to get rid of prostitution,  then we need to get rid of the social conditions which favour it Nordic countries have a whole range of programs to help women to give up prostitution and do not incarcerate them for it. 

Though I haven’t been able to find any research to support the idea that countries with more permissive attitudes to sex in general e.g. premarital sex, extra marital sex, casual sex, have less prostitution, a recent  Dutch study found that places which had legalised prostitution had reduced incidence of sex crimes such as rape and sexual abuse.

In the meantime, while we may not approve of prostitution it’s far better that it should be legal, medically supervised and safe, rather than keeping it underground where it fosters corruption, extortion, uncontrolled disease and becomes the domain of traffickers and organised crime.

 All these topics deserve much more attention, but this enough to see that prison is not the answer for many so -called crimes. Other areas which we'll look at are misdemeanours, property crime and juvenile offenders.