Uitermark, Justus, & Peter Cohen (2005), Decriminalisation: A short description, and the social process behind it. In: Encyclopedia of Law and Society. London: Sage Publications.
© Copyright 2005 Sage Publications. All rights reserved.
Decriminalisation
A short description, and the social process behind it
Justus Uitermark [1] & Peter Cohen [2]
Decriminalisation refers to the removal of criminal status from a certain behaviour or action. However, this simple definition hides profound social and political processes that usually precede juridical reform. This becomes readily apparent when we take a look at the list of behaviours whose criminal status has been lifted or is currently under discussion. Take, for example, religious beliefs, which are now commonly considered to be a personal rather than a juridical matter. Yet in many countries today and in most countries in the past, the right to adhere or not adhere to a particular religion was severely contested or circumscribed. Closely associated with the freedom of religion is the freedom of speech and organisation. In many countries today there are certain opinions that, at least according to legal stipulations, cannot be expressed and there are certain types of organisations that are not tolerated by law. The most outspoken examples here can be found in dictatorships but many examples can also be found in democracies. Some American states and many Asian countries, for example, forbid sodomy and disallow (public) expressions of homosexuality. In some European countries it is a criminal offence to deny the holocaust or to propagate racism. However, generally speaking, through time and over space, more and more individuals and groups have been freed from such juridical constraints - the decriminalisation of speech and political organisation.
As a rule, the formal procedure of decriminalisation follows a long and highly contentious process whereby those who engage in the behaviours that have been criminalised start to question the assumptions behind those legal regulations. They argue that that certain sexual, democratic or consumptive rights are in conflict with the law and argue for legal reform. Whether or not they start this quest and successfully carry it through depends in large part on the system of beliefs that is dominant in the context in which they operate. Generally speaking, decriminalisation of the behaviours we have mentioned so far is connected to a worldview in which bodily integrity and individual self-determination are widely shared values. Only when these values are widely shared does it become possible to argue that the minority group or deviant individual in question should not be punished for the fact that majority opinion or inherited laws regard their behaviour as ‘undesirable’. A general tendency, in Western nations especially but probably throughout the world, is that behaviours that do not do direct harm to others have been gradually freed from juridical constraints. For lack of a better term, we can label these ‘lifestyle offences’. These are offences that are not committed for material gain and that, regardless of their unintended consequences, are first and foremost an expression of the cultural, political and social status or identity of the perpetrator.
Decriminalisation thus serves as an indicator of a certain worldview in which values like bodily integrity and individual self-determination are institutionalised by reducing the right and leverage of authorities to intervene in individual behaviours, lifestyles or beliefs that do not do direct bodily harm to other members of society. Roughly speaking, these are the principles of liberalism: each individual has equal rights, no individual has the right to do harm to (the property of) others and authorities should only mingle in individual lifestyles if these constitute a direct threat to other individuals or to society at large. If we would carefully map decriminalisation of the abovementioned behaviours, we would end up with a rather accurate map of the extent to which liberal beliefs have spread throughout the globe. It would be very strong in European democracies and very weak in dictatorships.
Still, there are many exceptions to this rule that make it difficult to make a strict connection between liberalism as a belief system and decriminalisation of lifestyle offences. Polygamy, for instance, cannot be said to inflict direct harm upon others as long as all the parties involved agree on this marital arrangement, but it is still forbidden in the liberal European states and allowed in many less liberal states in the Middle East . Moreover, even the most liberal countries define as criminal many behaviours having to do with lifestyle. The best example here is probably the use of certain types of drug, which is generally subject to tight juridical regulations. All countries of the world have agreed among each other to ban a whole list of drugs, ranging from heroin and cocaine and ecstasy to amphetamine and LSD (Levine, 2002). Most of the time the word decriminalisation is now used, it refers to how drugs should be legally regulated rather than criminalised. The debate on this issue mainly revolves around two questions.
First, is drug use a menace to society in the sense that it incurs harm in others? If so, then this might be a reason to install or keep in place laws which define its use as a crime. Should it be the case that drug users harm others because they become aggressive, dependent on welfare or in greater need of health care, then it could be argued that it is in the best interest of society that drug use is circumscribed as much as possible. Drug use might also be seen as intrinsically wrong, for instance, because it is not in accordance with religious beliefs. In general, opponents of decriminalisation are likely to answer these questions affirmatively. They thus view restrictions on drug use as a legitimate defence of general social or religious principles. Supporters of decriminalisation will usually point to both the effects of drug use and the effects of drug control laws. For them, the fact that a behaviour may be dangerous or objectionable does not immediately imply that it should be criminalised. They ask whether the legal repression of drug use has any direct effect on drug use or misuse. They therefore rephrase the moral question as to whether this particular type of behaviour should be banned into the morally relevant but more pragmatic question about the consequences of criminalisation (rather about than the effects of drugs) (see, e.g., O’Hare et al., 1992).
Secondly, there is the question whether drug use is dangerous or harmful for the individual in question. This is a highly relevant question since most behaviours that have been decriminalised in liberal democracies, like abortion, euthanasia, sodomy or prostitution do not directly affect other members of society. The reason these behaviours were criminalised is moral rather than social; the illegal behaviour is considered to signify moral degeneration. Since legal arrangements are supposed to reflect society’s moral concerns, so this argument goes, law should forbid behaviour that would compromise the individual’s moral integrity. Again, opponents of criminalisation make two types of rebuttal arguments to refute this. On one hand, they argue on moral grounds that it is not the business of government, or groups that try to act upon others through government, to intervene in the individual’s affairs. On the other hand, they suggest, on pragmatic grounds, that the imposition of such legal restraints is generally not effective anyway. Since the individuals who exhibit the behaviours in question already occupy a socially marginal or culturally deviant position, legal constraints are more likely to reinforce rather than negate processes of moral and social exclusion.
Thus, oversimplifying a little, we can say that proponents of decriminalisation of, say, cannabis use argue that legal constraints unnecessarily impose moral demands upon individual users and that, if such constraints were in place, they would rather reinforce than negate the kind of behaviour that are supposed to repress. Opponents, in contrast, would argue that liberal laws regarding cannabis use would communicate the message that the government, or society at large, does not have serious moral objections to cannabis use. In addition, they tend to argue that repressive laws are effective, or can be effective, on the condition that they are rigorously enforced and supplemented by campaigns and social pressure that serves to emphasise negative aspects of cannabis use.
While it would be impossible to even attempt to review these disputes in one entry of a dictionary, we at least need to mention that decriminalisation cannot be equated with complete deregulation per se. In all the examples mentioned so far, governments continue to show concern about, and to intervene in, the individual behaviours that have been decriminalised. Again, drug use may be the best example. In this respect, the Netherlands often serves as a point of reference for both opponents and proponents of decriminalisation. In that country, drug laws are relatively liberal and the authorities generally adopt relatively liberal attitudes towards the use of drugs that are formally illegal.
Certainly the most famous element of Dutch drug policy is that coffee shops are allowed to sell small amounts of hashish and marijuana for personal consumption (Uitermark, 2004, pp. 518-519). Not just anyone who wants to sell cannabis is allowed to do so. In fact, most municipalities do not allow coffee shops in their jurisdictions, and those that do typically keep their numbers very low. In addition, the quantity of cannabis that can be sold to individual customers or kept in storage is limited. A maximum of five grams can be sold to each customer, and a coffee shop is not allowed to have more than 500 grams of cannabis on hand at any time. Cannabis can only be sold to persons who are 18 years of age and older. These rules have been developed over a number of years through a process of trial-and-error (Van der Veen, 2002). When internal or external political pressure against Dutch decriminalisation has increased, the government has made the rules more stringent and enforced them more rigorously.
For example, when coffee shops were first permitted in Amsterdam , few rules existed. The number of coffee shops grew steadily, and many people complained that some of them attracted criminality, caused a nuisance, or sold drugs other than cannabis. In response, the municipality of Amsterdam adopted several measures to eliminate criminal activity from the cannabis sector. Official tolerance (gedogen) of the coffee shops began there in 1980. Before that, authorities could (and on occasion did) close down coffee shops on the grounds that they possessed more than 30 grams of cannabis. Since that time, the enforcement of rules has become less arbitrary (Jansen, n.d.). When criminal behavior is detected in a coffee shop, when it sells to persons under 18, when it causes nuisance – in short, when it breaks any rule, it will be closed down either temporarily or permanently.
The attitude of the government towards the use of drugs that are classified as ‘hard drugs’- i..e. drugs that are considered to pose an unacceptably high risk to users, like cocaine, heroin or ecstasy – is more repressive but consumers are normally not prosecuted. More importantly, illegal drug consumption is recognized by the government as a given and information and sometimes facilities have been created to reduce risks for users. Examples include testing drugs, providing information on drugs and arranging spaces for drug consumption (‘shooting galleries’) for the minority of drug users who are not able to create a safe private place for drug use. These services for drug users are normally not provided directly by the government but by government-sponsored civil society organizations. This approach is normally referred to as ‘harm reduction’ ( e.g. Cohen, 1999 ) – in this case, decriminalization signifies a shift from a repressive, zero-tolerance attitude to drugs users to a situation in which harm resulting from drug use is reduced as much as possible. Rather than simply deregulating drug use, a complex web of institutions, organizations and regulations has been put in place.
This is normally also the case for other forms of decriminalization. In countries where euthanasia is not classified as criminal, for example, a whole regulatory complex has been put in place to discourage misuse (see Boisseau, 2004; Schoevers et al. 1998). In both cases, the law stipulates a number of conditions that need to be fulfilled in order to escape legal prosecution. People who consider abortion and euthanasia are usually initially discouraged. Once it has become clear that they have good grounds for their decision, they have the right to support and counselling.
As these examples show, it would be inaccurate to consider decriminalisation as simply a juridical affair. Normally decriminalisation is highly contentious. It is usually not a straightforward and instant policy measure but rather a haphazard, long-term process. The decriminalisation of homosexuality is a typical case in this respect (see, e.g. Oosterhuis, 1996). Finally, decriminalisation is usually double processes. On the one hand, repressive government policies are used with more restraint as repression is seen to contribute to, rather than solve, the problems they were designed to alleviate. On the other hand, a range of policies are put in place in order to regulate the excesses or dangers that might result from deviant behaviour. Understood in this way, decriminalisation can be considered as the way in which society accepts paternalistic responsibility for the social problems that are experienced by groups that are culturally deviant or socially marginalised.
References
Boisseau, N. (2004) Euthanasia and palliative care in the Netherlands, Presse Medicale 33, pp. 368-372.
Cohen, P.D.A. (1999), Shifting the main purposes of drug control: from suppression to regulation of use. Reduction of risks as the new focus for drug policy, International Journal of Drug Policy 10, pp. 223-234.
Jansen, A. (n.d.) Hasj Coffeeshops in Amsterdam – een historisch perspectief. Amsterdam : Faculty of Economic Sciences and Econometry, University of Amsterdam .
Levine, H. (2002) The Secret of Worldwide Drug Prohibition , The independent review 7, pp. 165-180.
O'Hare, P., et al., eds. (1992) The reduction of drug-related harm. London : Routledge.
Oosterhuis, H. (1996) Christian social policy and homosexuality in the Netherlands, 1900-1970, Journal of Homosexuality 32, pp. 95-112
Schoevers, R.A., F.P. Asmus FP & W. van Tilburg (1998) Physician-assisted suicide in psychiatry: Developments in the Netherlands, Psychiatric Services 49, pp. 1475-1480.
Uitermark, J. (2004). "The origins and future of the Dutch approach towards drugs." Journal of Drug Issues 34, pp. 511-532.
Van der Veen, H. (2002) Regulering ondanks verbod – Amsterdam is het gedogen voorbij. Rooilijn 30,465-470.