• Criminalization;
  • last resort;
  • legal highs;
  • proportionality

Hughes & Winstock [1] address an important issue that has been highlighted in a more generic context by others [2]: the over-reliance on prohibition and criminalization to deal with any possible problems posed by psychoactive substances. Nowadays, responding to drug problems through criminal law often constitutes the easiest (both politically and technically) and quickest way for politicians and bureaucrats to prove to the public that they are ‘doing something’. However, this leads to the ‘crisis of overcriminalization’ [3], resulting in a growing number of criminal law provisions which are difficult to enforce, providing no real solutions to the problems and often bringing various negative side effects. Contemporary drug laws attempting to cover any psychoactive substance and any imaginable act involving them probably constitute the most conspicuous example. Usually, all this means is a total disregard for the basic principle underlying modern understanding of criminal law as a means of social control: the ultima ratio principle, which requires that criminalization is the last resort of policy decisions. Criminal law prohibitions may be justified only if there is really no other alternative, no possibility for a non-punitive way to deal with a given problem or phenomenon, etc. At the same time, another important principle is that criminal law interventions, like any other state interventions, should be proportionate to individual and social threats resulting from any problem subject to such intervention.

Unfortunately, over the last 100 years the development of drugs control laws has involved the constant expansion of the scope of criminalization, often accompanied by increasingly punitive sanctions. This process has accelerated in recent decades, due mainly to the unexpected production of new synthetic drugs. It often appears that there is some sort of competition between suppliers and controllers in that area, creating a ‘bias in the decision-making towards prohibition’ [4]. It also seems to be too easily forgotten that decisions to include any drug into schedules of controlled substances always means further expansion of the scope of criminalization. This is why it is time to ask questions about alternative ways to deal with the problem. ‘Legal highs’ may constitute an especially conspicuous example. The main problem with these substances is that there is usually very little knowledge about their psychopharmacological and toxicological properties, nor any eventual negative consequences of their use. This means that policy decisions regarding them must often be made without sufficient scientific evidence being available. Under such conditions it is very difficult to be guided by the principles of last resort and proportionality, which is why the precautionary principle most often prevails here, and substances are criminalized ‘just in case’. However, this expands the criminalization of psychoactive substances and their users in a dangerous manner, often beyond any reasonable limits. There is no denying that, in most cases, it is necessary to find a way to deal with the problem, but using exclusively the framework of traditional illicit drug control instruments seems to be particularly questionable.

Psychoactive substances referred to as ‘legal highs’ are present in most European countries and create problems, but in most cases it seems that these are not necessarily huge public health problems [4]. This creates questions concerning the essence of the problem: the substances themselves, or rather the way in which they are marketed as ‘legal alternatives to drugs’ via ‘head-shops’ or the internet. It seems that so far it is the latter which poses more challenges. In some countries, rapid expansion of head-shops chains using various legal loopholes seem to ridicule the authorities unable to stop them. State authorities are usually not ready to accept such situations: it may be interpreted by the public, especially by the media, as ‘proof’ of the state being out of control of a problem; but this does not mean that there are no alternative ways in which to respond to such situations. Hughes & Winstock identify the problem correctly when they say that the question is how to control the market without excessive use of penal sanctions, especially if they are directed against users. Their general idea, to use in such cases medicine or consumer protection laws rather than drug control laws, should make it possible to solve the real problem and to push distribution chains out of business, without criminalizing users. It seems that even under current laws such chains may often be held responsible for engaging in various forms of consumer fraud. If not, it is not very difficult to adjust respective provisions in a manner which also makes them applicable to cases of selling legal highs. This should make it possible to avoid ‘using canons against sparrows’, avoiding yet another measure of excess in drug control policies. In fact, this should be the general guiding principle in drug policies, but in the area of new psychoactive substances it seems to be of particular importance.

Declaration of interests



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