The rise and fall of the Norwegian drug policy reformNovember 03, 2021
A drug policy reform that once was lauded as “the biggest social reform in Norway in decades” failed to get the necessary support in Parliament in June. Reform supporters pinned their hopes on a new parliamentary majority after the General Election in September, and drug reform was one of the hot issues during the campaign. However, after the election, the parliamentary opposition to the reform has grown. After the new Labour/Center Party government announced their plans to launch their own drug prevention and treatment reform, the reform proposal looks dead in the water.
In their governing platform from 2018 the conservative coalition government promised to introduce a drug policy reform that shifted society’s response to drug use and possession from the justice sector to the health sector. The slogan “from justice to health” was widely supported by other parties in Parliament, as well as by the media and civil society.
In March 2018 an expert commission was appointed to prepare the implementation of the Government’s drug policy reform. The mandate of the expert commission was not to analyze the present situation and propose appropriate measures. Instead, the appropriate measures were defined, and the commission was tasked to find out how they could be implemented.
However, there were several ambiguities in the mandate. On the one hand there was an emphasis on health services, which are based on voluntary participation. On the other, the Government stressed that illicit drugs would still be illegal. The police would still be charged with uncovering minor drug crimes, and they could require that people with drug use disorder accept health services. Non-compliance would be met with sanctions.
Furthermore, the target group for the reform was people with drug use disorders. It was less clear how the reform would apply to young people or experimental/recreational adult users. It was left to the expert commission to resolve these tensions.
The expert commission’s report was presented to the Minster of Health in December 2019. As it turned out, the commission sided strongly with the health side of the argument wherever there was tension. They also advocated for a sweeping reform that would apply equally to all people who are caught using or possessing illicit drugs.
The report called for a relatively radical departure from existing policies. All penalties for use and possession of relatively large quantities of illicit drugs would be removed. People who were arrested for use and possession risked having their drugs confiscated, although the report called for leniency. They would also be asked to meet before a new municipal drug advisory body, where they would receive a lecture about the potential harms of drugs, along with information about where they could get help if needed. If they did not turn up, the municipal body should try to encourage them to come, but if they still failed to show, there would be no consequences.
Although the Government initially tried to avoid the word decriminalization, the proposal left little doubt about what it was. The Government gradually embraced the term. However, drug use and possession would still be illegal.
Although the mandate was ambiguous, the expert commission took their main cue from the widely used slogan “from justice to health”. Once the responsibility for reactions to drug use/possession shifts from the justice sector to the health sector, the procedure will be governed by health sector legislation and principles. One of the key principles is that health treatment is voluntary. Furthermore, the health services should not be used to monitor or sanction patients. This precludes mandatory interventions, follow-up with urine testing, imposition of penalties for failure to attend treatment or sanctions for positive drug screens. These principles are reflected in the nature of the municipal drug advisory body. The advisory body can only provide factual information about drugs and drug services, since this does not qualify as a health service. Further discussions, e.g. about the client’s drug use, life situation or motives for using would be regarded as a health service and require informed consent.
One of the most important reason given for this reform was to reduce stigma. The expert commission report stated that punishment was intentional stigma that should be reserved only for the most serious crimes. Furthermore, the expert group argued that the criminalization of minor drug crimes had no benefits since their summary of the evidence found that criminalization does not significantly affect drug use in the population.
The expert commission defined minor drug crimes as “not serious”. Many policing tools were therefore regarded as disproportionate. This includes checking mobile phones for information about buying or selling drugs, as well as any drug testing (blood or urine). The only way for the police to determine drug use is therefore observation and interviews with suspected users. However, these observations are not sufficient evidence in a court of law. If the suspect later retracts their admission, the case would have to be dismissed. Nevertheless, the expert commission argued that this evidence was sufficient to send people to the municipal body, since this is not punitive in nature, and since non-compliance is not sanctioned.
The report from the expert commission sparked a heated debate. The report was received with great interest across the political spectrum, and there was almost unanimous support for the principle that heavy drug users should not be punished for their condition. The support was particularly strong from the drug reform and legalization movement, who pushed hard to get the proposed model implemented just as it was.
However, many other actors were more critical. First, some of the leading expert bodies in Norway were skeptical of the commission’s interpretation of the evidence on the effects of decriminalization. In part, the knowledge base is not very strong and many of the available studies have significant methodological weaknesses. In part, it is also unclear how relevant experiences from other countries and other contexts are to a Norwegian context today.
Furthermore, the proposed model was more radical than previous models in other countries, since it completely removed all sanctions for drug use and possession. It is therefore not clear if previous experiences are comparable to the Norwegian proposal.
Second, many argued that this would harm drug prevention among young people. Drug use/possession among young people would typically be met with alternative sanctions, typically a program where young people take part in counselling and urine tests over a given period of time. In return, penalties are lifted and the criminal record is expunged. Some argued that these programs have had good results, and that the proposed reform would make such interventions completely voluntary.
Third, some were worried that this would weaken the police response to drug related crime. Decriminalization could mean that the police would lose some tools to combat drug use. However, it could also mean that they would de-prioritize minor drug crimes as a response to the strong political signal that drug use is not a serious crime. The result would be that the risk of discovery would go down, and that there would be little or no risk of penalties for those who were caught anyway.
Fourth, some were critical of the voluntary nature of interventions and follow up. This would require young people to accept that they have a drug related problem or are on a path to develop drug related problems at a time when the harms of use are not yet clear. It is likely that family and parental involvement would increase motivation to commit to counselling and follow up. However, young people who are more vulnerable and from more disadvantaged backgrounds could be left to their own devices. This could lead to disparities in access to support and cause greater health inequalities in the future.
Fifth, decriminalization also has consequences for the role of the police in uncovering and investigating minor drug offences. The legal basis for police investigations depends on whether or not an offence is punishable. The statutory maximum penalty for use and possession is six months in prison. However, people very rarely serve prison sentences for drug use/possession alone. Until recently, the potential prison sentence meant that the police had access to search the person and check mobile phones to determine whether it was used to sell drugs, and to take urine tests to establish drug use. In the case of minors, this enabled the police to provide information about underage drug use to child protection services.
The political process
The expert commission dismissed concerns that drug use would increase with decriminalization, despite the objections from e.g. the National Institute of Public Health. When asked how people would know that drug use is illegal when there are no legal consequences for minor drug offences, the leader of the commission simply stated that it was written in the law. However, most people do not consult the law. Instead, we learn about the law based on what people around us tell us and how the law is practiced.
The expert commission repeatedly argued that punishment (i.e. criminalization) should be reserved for the most serious crimes only. However, punishment encompasses a broad spectrum of possible sanctions to a wide range of illegal actions of varying seriousness. Penalties for minor drug crimes are relatively lenient, e.g. monetary fines or failure to prosecute with certain conditions.
The report from the expert commission formed the basis of the Government’s reform proposal. Predictably, the Government chose to address two minor aspects of the proposal that had been controversial. First, the Ministry decided to impose an administrative fine if people did not show up to the appointment at the municipal advisory body. Second, they lowered the limits for possession. The expert commission had discussed the possibility of introducing such a fine, but advised against it. The fine is somewhat in conflict with the goal of removing penalties for drug use. However, the government argued that the fine was not related to drug use, but to the failure to show up to the appointment. The expert commission also suggested that the limits for possession were negotiable. However, lower limits would particularly harm heavy users, who would be more likely to possess larger quantities of drugs or several different types of drugs.
The Government decided to present the drug policy reform to the Parliament as a law proposal. This meant that the Parliament was asked to approve a fait accompli that was negotiated within the minority government coalition. Some opposition politicians were surprised at this and had instead expected a white paper that the Parliament could influence. There is a long tradition in Norwegian politics to seek bipartisan support for social reforms, and it is perhaps surprising that the government chose to disregard this tradition in the case of a reform that was billed as “the greatest social policy reform” in decades.
The drug policy reform law needed the support of the biggest opposition party, the Labour Party. However, there was widespread skepticism against the reform, particularly outside the two biggest cities. Furthermore, the Labour Party’s biggest partner and competitor in the political center, the Center Party, was strongly opposed to the reform.
At the Labour Party annual meeting in April, it became clear that a 2/3 majority of delegates opposed the reform, including the party’s candidate for Prime Minister. This meant that the drug policy reform failed to get a majority in the final vote in June.
A matter of law
During the consultations in Parliament in spring 2021, it became clear that there were diverging views about the coercive measures that the police can use in the investigation of use and possession of small quantities of drugs. The theoretical possibility of a prison sentence means that the police can use some coercive measures. However, the use of coercion must be proportionate to the seriousness of the crime.
In April, the Higher Prosecuting Authorities (Riksadvokaten) wrote a letter to all police regions saying that the use and possession of small quantities of drugs should not be regarded as a serious crime, and that the police were therefore precluded from using some of the coercive measures that had been used up to then.
The Higher Prosecuting Authorities specifically banned the police from searching mobile phones for evidence (unless there is strong suspicion of more serious drug crimes and the search is authorized by the courts). They also banned any physical examinations solely for the purpose of confirming drug use, e.g. urine tests, blood tests or even saliva tests. The Higher Prosecuting Authorities stated explicitly that the individual police officers could be punished for failure to comply with the guidelines.
These new guidelines sparked claims that the police had abused their power and violated people’s rights. The Higher Prosecuting Authorities wrote in the April letter that they had no reason to think that the police had systematically abused coercive measures. However, they still called for an investigation into police practices in all police districts in Norway.
The investigation showed that the Higher Prosecuting Authorities were generally correct in their claim that the police adhered to the law. With few exceptions, the use of coercive powers was proportionate and legitimate.
The reports from all police districts unanimously showed that the police did not pursue drug use or possession among heavy users. To the extent that this group came into contact with the police for their drug use, it was in connection with other crimes, e.g. driving under the influence of drugs.
The investigation showed that in rare cases, the police had searched mobile phones to clarify whether the arrestee was a user or a seller, or to investigate the extent of use in the case of young offenders in the care of child protection services. Moreover, the police had regularly used urine tests to confirm suspicion of drug use. This evidence had been required by the courts.
Both these practices stopped after April, in compliance with the new guidelines. However, this means that it is no longer possible to prove drug use unless the individual pleads guilty. If the accused later withdraws his guilty plea, the police cannot prosecute.
The absence of physical evidence of drug use also means that the police have less information to pass on to child protection services, or to use as a starting point in mandatory counselling and follow up.
Furthermore, the threat of personal liability has had a chilling effect on the police’s work in the drugs field. The police are more passive and reactive in drug use/possession cases. Several of the police districts report that the number of minor drug crimes has dropped by half in the months since April. There is also some evidence that fewer serious drug crimes are investigated.
Norway was scheduled to have Parliamentary elections in September 2021, and the supporters of the reform worked hard to put drug policy reform on the political agenda. The reform emerged as an ideological dividing line between the current Government and the opposition in an otherwise un-ideological political landscape. Both the Conservative and the Liberal Party sought to challenge the Labour Party on their resistance to decriminalization. Meanwhile, the supporters of the reform waged a campaign against the Labour Party in the newspapers and particularly in social media. In hindsight, it appears that this campaign only served to galvanize opposition to the reform.
The election results strengthened the parliamentary opposition to the drug policy reform, and the two biggest opponents of the reform – The Labour Party and the Center Party – eventually formed a minority coalition government.
In their governing platform they committed to “a drug prevention and treatment reform” without decriminalizing drugs, but the details of this reform remain to be seen.
Stig Erik Sørheim
head of the International Department of Actis
NordAN board member