FIDUCIA New European Crimes and Trust-based Policy OVERCRIMINALIZATION AND PRISON OVERCROWDING: RECENT FINDINGS FROM THE FIDUCIA PROJECT IN THE FIELD OF DRUG LEGISLATION Elena Vaccari – University of Parma (Italy)

1 Feb 2012 – 31 Jan 2015 overall budget: 2.7 Million € The FIDUCIA Project

UNIPR CEPS (BE) CSD (BG) EPLO (GR) HEUNI (FIN) BIRKBECK (UK) LSE (UK) MPICC (DE) IPS (HU) TEISE (LT) OXFORD (UK) ASI (TK) USAL (SP)

What is FIDUCIA

The PURPOSE of the project is twofold. On the one side, FIDUCIA aims at shedding light on a number of distinctively "new European" criminal behaviors that have emerged in the last decade as a consequence of developments in technology and the increased mobility of populations across Europe. Then, FIDUCIA will propose a "trust-based" policy model in relation to emerging forms of criminality. On the other side, FIDUCIA has the objective of making policy proposal to address the general problem of "overcriminalization", i.e. the increased use of the criminal law to regulate social conduct without adequate justifications.

Overcriminalization Prison Overcrowding In search for possible solutions in line with public attitudes…

OVERCRIMINALIZATION & PRISON OVERCROWDING "Criminalization", i.e. the resort to criminal law as a means to regulate social problems, is an increasingly significant feature of European states. Both 1) the number of criminal offences and 2) the areas touched by the criminal law have expanded significantly since the beginning of the 21 st century, primarily as a result of the new "preventive" (as opposed to the traditional "post-crime") orientation of the criminal justice system (see e.g. Prof A. Ashworth) This is part of a broader phenomenon that criminal law scholars define "overcriminalization". This term indicates the use of the criminal justice system without adequate justifications (harm + culpability) and it relates to both the enactment of new criminal offences and the use of excessive punishment. Overcriminalization has resulted in an increase in the number of inmates across Europe, with a severe impact on prison "overcrowding" (e.g. Torreggiani v. Italy, ECtHR 2013).

What kind of criminal justice policies could have an impact on the problem of overcriminalization & prison overcrowding, without loss in security and trust in justice? D.10 of the FIDUCIA project

The case of CANNABIS USE

Why drug legislation (and cannabis use in particular)? 1) Criminalization of drug use diverges from the paradigm: harm + culpability  overcriminalization 2) A high % of inmates are incarcerated because of drug offences  prison overcrowding

Public Opinion Law

EMCDDA: cannabis use Cannabis is by far the most widespread drug: 80.5 million vs 15.5 million (cocaine) 13 million (amphetamines) 11.5 million (ecstasy) – “lifetime use” Cannabis use increased during the 1990s-2000s and is now stableLargely concentrated among young people (15-34)Comparison with US, Canada & Australia: “last year use” 12.4% EU vs 24.5% USSignificant minority consumes the substance intensively: 1%

Recent social surveys investigating public attitudes on drug regulation - USA

Drug policy options CRIMINALIZATION France, Hungary, Greece, Finland, Norway, Sweden, Lithuania DEPENALIZATION Slovenia, France, Germany DECRIMINALIZATION Italy, Spain, Portugal, the Czech Republic, Estonia, Latvia, Croatia, Luxembourg, Belgium LEGALIZATION

ITALY PORTUGAL DECRIMINALIZATION OF DRUG USE

statute 685/1975: possession of a "limited amount" of "any illegal drug” - not punishable 1990 statute: harsher admin. sanctions, possibility of custodial measures for users 1993 referendum: abolished the provision of custodial measures 2006 reform: cannabis was upgraded to Schedule I (6-20 y) ITALY

Increase in anti-drug police operations Despite drug seizures generally stable, increase in cannabis seizures (x2) Increase in drug law offences, particularly for cannabis Increase in the yearly imprisonment rate for production, dealing and possession of drugs above the threshold: 1/3 Increase in the proportion of drug addicts in prison: 1/4 Steady increase in the application of administrative sanctions for personal use and dramatic drop in the use of therapeutic programs (programmi terapeutici) by sanctioned users Decrease in the use of therapeutic programs (affidamento in prova) as alternatives to imprisonment Upward trends in prevalence use confirmed for all indicators Evaluating the effects of the 2006 reform

Law 30/ 2000 removed criminal sanctions for personal use and possession of all illegal drugs Framework of an increasing emphasis on treatment and harm reduction principles Merely administrative offences for "the quantity required for an average individual consumption for 10 days" Commissions for the Dissuasion of Drug Addiction (CDTs) are in charge of sanctioning drug users PORTUGAL

No major increase in drug use Reduced burden of drug offenders on the criminal justice system: decrease in the number of people arrested for drug related offences and no major increase in the number of people detected for administrative offences Decrease in the number of drug- related offenders in prison and in prison overcrowding Increases in the amounts of drugs seized by the authorities, particularly those destined for external markets Reduction in opiate-related deaths and infectious diseases Increased uptake of drug treatment Evaluating the effects of the 2001 reform

Decriminalization measures alone, and particularly when part of a global repressive strategy, are NOT effective lack of impact on drug use increase in drug-related offenders in prison and prison overcrowding significant drop in the use of therapeutic programs by drug users

Decriminalization measures coupled with effective social measures are effective in addressing drug use do not inevitably lead to rises in use can significantly reduce the burden upon the criminal justice system social and health benefits for users

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