Michael Tracey and Neima Jahromi | December 15, 2010
Portugal no longer views drug users through the prism of the criminal justice system. Though production, trafficking and sales of drugs remain illegal, authorities now refer people they find in simple possession of illicit substances to a panel that consists of a psychologist, social worker and legal advisor—no law enforcement personnel are present. By classifying drug addiction as a medical problem, the Portuguese have lessened the stigma and legal obstacles that addicts may otherwise encounter in seeking treatment. “The main focus of their policy change,” Stevens says, “is to emphasize social solidarity between drug users and the rest of society, so that people are not cast out just because they’re drug users.”
The administrative bodies that handle drug-related matters in Portugal are called Commissions for the Dissuasion of Drug Addiction, a name that signals a distinct cultural shift away from a drug control policy centered on interdiction and criminal liability toward one almost entirely within the domain of public health. “Portugal has not decriminalized the supply of the drugs,” Stevens continues. “What they’ve done is make sure that drug users don’t face criminal penalties, but have a system in place where if they have a need for treatment, they can get treatment. And if they don’t have a need for treatment, they’re not harmed any more by the criminal justice system than they are by the use of drugs.” None of the panel’s recommendations are mandatory, yet in the years since Portugal implemented its policy, the number of people seeking medical assistance for drug-related issues has risen by 41 percent. And as rates of heroin injection have declined, incidence of HIV/AIDS have fallen significantly.
Many in the United States maintain that an ambitious nationwide decriminalization effort is unnecessary, since drug courts  already offer offenders an effective alternative to prison. But court systems lack adequate funds to treat everyone who might qualify, especially with budget crises straining state coffers. Portugal is able to provide such treatment in part because decriminalization saves money on enforcement costs. Moreover, because an American defendant must plead guilty in order to enter drug court, people who may have been exonerated at trial end up in prison for failing to satisfy the judge’s requirements.
The war on drugs has dramatically swelled America’s prison population in the past few decades; according to a much-cited report from the Pew Center on the States, more than one in every 100 Americans are currently behind bars. Ballooning prison populations in some states may even have reached a level that constitutes cruel and unusual punishment. The Supreme Court has begun hearing  arguments that California’s prison system, currently operating at more than twice its capacity, violates the Eighth Amendment. And given crisis-level budget shortfalls, the annual cost of imprisoning someone in California (about $47,000 per inmate) is becoming increasingly difficult for the state to cover. But even if California had the financial ability to build more prisons, Portugal’s model suggests it would be a mistake to do so.
In 1977, Jimmy Carter said, “Penalties against drug use should not be more damaging to an individual than the use of the drug itself.” But as Michelle Alexander and other critics of mass incarceration have argued , the prevailing American assumption for decades has been to address problems of drug abuse with more cops, more prisons, more punitive intervention and more futile deterrents—perpetuating a drug war that only exacerbates the very societal ills it ostensibly seeks to mitigate.
Unfortunately, structural impediments to wholesale reform in the United States dampen hope for a Portuguese-style shift in policy—at least at the federal level. “Portugal did not have, does not have and will never have the dozen or so massive bureaucracies whose jobs it is to get up every day and maintain the status quo,” says Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML). “The Office of National Drug Control Policy has it built right into its charter that it must oppose any efforts to legalize marijuana, LSD or heroin.” Whereas Portugal’s shift came about on the recommendation of a commission set up by the government to analyze the state of drug policy there, the US executive branch has continuously treated proposals of legalization, decriminalization and even reduced penalties for drug offenses with hostility.
Even so, Professor Stevens suggests there is reason for Americans to be optimistic. “There was a time in US drug policy not long ago when I was told by a federal official that not only was he not allowed to introduce harm reduction, he wasn’t allowed to say ‘harm reduction.’ And if anybody at the meeting said ‘harm reduction,’ he’d have to leave the room.” But these days, Stevens says, “This willful blindness, this self-protection from the evidence, is lessening. And we can try to build on that.”