The Decriminalization Option: Should States Consider Moving From a Criminal to a Civil Drug Court Model?

Abstract

As states look to shave their corrections budgets in the midst of the recession, many are thinking about options to reform what is widely considered to be a bloated and ineffective approach to drug policy. While the effort to move beyond failed drug war policies and adopt smarter and more cost-effective measures is a positive step, the policy debate has focused almost exclusively on traditional and well-worn reform ideas. Many states and localities have, for example, begun to explore dramatically increasing the use of criminal drug courts, which available evidence indicates may be both cheaper and more effective than current policies.

Meanwhile, the Obama Administration has pledged to significantly boost federal drug court grants as part of its effort to place a greater emphasis on treatment in our national drug control strategy. Even some of the more envelope-pushing reform proposals gaining traction in some states, like taxing and regulating marijuana, are new only in their political viability and not in their approach. Just because these ideas are not new, it does not mean they are not good, of course. In examining options for lowering costs and improving drug policy, however, states and localities may also benefit from thinking outside the box, and looking at approaches outside of the United States in order to generate new ideas.

In that spirit, this Article considers an innovative drug law from overseas that has thus far garnered relatively little attention in the political dialogue or among legal academics within the United States: Portugal's 2001 drug decriminalization measure. I will argue that states looking for smart, cost-saving drug policy measures should contemplate adopting a system similar to Portugal's, which removes drug users from the criminal sphere entirely in favor of what we might think of as a civil drug court system. This approach would address some of the lingering inefficiencies that are inherent to the criminal drug court model that has risen to prominence here in the United States.

Keywords: drug decriminalization, drug court, civil drug court, civil drug penalties, narcotics, portugal, drug policy, marijuana, crime and the economy

JEL Classification: K14, K42