Drug Diversion and Decriminalisation: A Quick Run-Through of Issues and Rationales

There is a very real obstacle to the reduction of HIV/AIDS and drug dependency in society, and that is the existence of punitive drug laws. But before I dive head first into the rhetoric, let me first describe what’s happening on the ground in Malaysia.

Needle-and-syringe exchange programs

Needle-and-syringe exchange programs is a harm reduction approach that seeks to reduce harm as a result of drug use. What does harm reduction basically entail? Harm reduction encompasses a series of approaches and interventions to recognise that people will continue to try heroin and other injectable drugs, and that steps must be taken to reduce the harm done to the individual, their families, and society as a result of that drug use. Those already on heroin and other injectable drugs are understood to be chemically dependent on the drugs. The words ‘chemically dependent’ are given special emphasis because it is important to note that persons who will have severe physical and psychological effects upon going cold turkey should not be treated as criminals who should be incarcerated, but instead as persons requiring treatment for chemical dependency to drugs and various other comorbidities that they may have (tuberculosis, HIV/AIDS, hepatitis C and psychiatric comorbidities). It must be remembered that with persons dependent on drugs, the case often is not ‘I won’t stop’, but rather, ‘I CAN’T stop’.

Via needle-and-syringe programs, drug users get clean needles in exchange for their used ones. This way, the risk of the spread of HIV is reduced. Needle-and-syringe programs are sanctioned by the Ministry of Health. The thing is, Section 10(2)(a) of the Dangerous Drugs Act 1952 make it an offence for persons to possess utensils for the preparation or consumption of opium. Hence, persons who go to get the clean needles and syringes often get arrested and charged. In jail, they are forced to go cold turkey, which doesn’t do anything to help them psychosocially. Furthermore, incarceration means that they are removed from positive influences like their families, and introduced to criminal circles in prison.

As a result of the above arguments, possession of drug paraphernalia must be decriminalised. Otherwise, no drug user will want to get the clean syringes for fear of being arrested, and they will therefore keep sharing syringes, which won’t help reduce HIV.

The persons caught with paraphernalia are often also charged with consumption and possession of drug offences as they will have small amounts of heroin on them for personal use. The idea is that, where the amount is insufficient for the purpose of trafficking, he should not be charged with any criminal offence. This idea is consistent with that of the drug user being a person having a medical problem, and not a criminal problem.

Drug Diversion

Drug diversion is a topic on which an entire book can be dedicated to, but here I shall quickly run through what it means. It basically means that upon arrest for drug offences, the person is diverted either to medical treatment, problem-solving courts, or behavioural therapy, depending on what offence the person is arrested for. For example, if the person is arrested for a drug-related crime such as shoplifting to finance his drug habit, and is found in possession of heroin for personal use, and he is a repeat offender, then problem-solving courts would be the way to go. Hence the offender is diverted out of the criminal justice system into programs with other modalities and philosophies.

It should be noted that when I say ‘problem-solving courts’, I am not talking about regular courts. In problem-solving courts, the offender has a personal file which a multi-disciplinary team prepares, predicting what he/she needs to be gradually weaned off drugs, educated (if necessary) and reintegrated into the society in a condition so that he would not have to resort to crime, or drugs. In problem-solving courts, the judge monitors each participant, and rewards or sanctions the participant based on his progress. Such rewards may be openly commending his efforts in open court, such as: ‘I’m pleased with your progress, well done!’ or a sanction may operate in this manner: ‘You’re not improving, that’s not good, I’m disappointed. If this goes on, we’ll need to think about taking you out of the drug court program, and back to jail.’ Problem-solving courts such as drug courts are consistent with the principle of therapeutic jurisprudence, and is explained in detail in Astrid Birgden’s article ‘A Compulsory Drug Treatment Program for Offenders in Australia: Therapeutic Jurisprudence Implications.’[1]

(Note: I do not condone practices of the Miami version of drug courts as they practise immediate abstinence from drugs upon entry into drug court – hence not addressing the chemical and psychological dependence the user has on drugs).(Note. 2: We don't have drug courts yet - capacity building etc needed. But they should definitely be included in Malaysia's long term drug law plans.)

Methadone Maintenance Program

Methadone is a synthetic drug that is used to treat heroin dependence. It is administered orally, and has been proven to reduce cravings for opioids such as heroin. As it is given by trained professionals, risky injecting behaviours are reduced. In Malaysia, methadone clinics have been around since 2005, and will be introduced in PUSPEN this year. People who legally participate in this program also are technically contravening the law as they are consuming drugs. Hence, decriminalisation of some drug possession and consumption offences is something that the public must be educated on, and the government must consider the same.

Parting Note: Please feel free to contact me on twitter for any questions on this article, decriminalisation, or drug policy on the whole.

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[1] Astrid Birgden, ‘A Compulsory Drug Treatment Program for Offenders in Australia: Therapeutic Jurisprudence Implications.’ (2008) 30 Thomas Jefferson Law Review 367