Cato Institute’s Report on Portuguese Drug Policy: Reasons for Skepticism

Mark informs me that this Thursday he will be “with Glenn Greenwald on bloggingheads tv on drugs”. I have told him this is a bad idea and it would make more sense to take the drugs afterwards, but still, he’s his own man so there it is. Let me contribute something in advance nonetheless. Many policy people have asked me what I think of the Cato Institute’s report on Portugal “proving that drug legalization works”, which Greenwald authored. Below is the guts of the memo I have written for such decision makers, which expresses my doubts about the report’s standing as a serious piece of drug policy analysis. If you like your drug policy simple and ideological, save yourself some time and skip straight to the comments section to denounce me. But if you want to know how analysts and decision makers try to sort through drug policy in all its complexity, you may find the following of interest. Extra credit reading is this concrete example for how you can torture the statistics of Portuguese drug policy until they give you the answer you want.

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This memo is to follow up on your request for some analysis of the Cato Institute’s report on Portuguese drug policy. To summarize my view briefly, I think some aspects of current Portuguese drug policy are useful, that all of it warrants even-handed evaluation and that the Cato Report does summarize a selection of the important facts about the policy’s impact. I do however have some reservations about how the report has been interpreted as well as how it was written.

The most important point of context is to understand what Portugal actually did, which was to expand addiction treatment services and to reduce criminal penalties for drug users who possess small quantities of drugs. Such individuals are sent to a “dissuasion committee” which decides whether treatment, a fine or some other civil punishment is in order. Portuguese policy is therefore not “drug legalization”, because the production, manufacture and sale of drugs remain illegal. I do not blame the authors of the Cato Report for this, but as a factual matter, many media reports and activists have cited the report as “the definitive study of drug legalization”. That is simply wrong because drugs are not legalized in Portugal. Portuguese officials with whom I have spoken have expressed the same concern, namely that they are being said to have advanced a drug policy which they have not and do not support.

As for the report itself, Cato Institute hired a lawyer who made the best case he could for the effectiveness of Portuguese policy. That’s what lawyers are trained to do: Gather the subset of facts that support their client’s case and build an argument around them. This differs from the role of a policy analyst, which is to evaluate all the facts and come to a conclusion afterwards. A drug policy analyst would have thus not only highlighted apparent positive outcomes of policy (which the report does) but would also have reported the negative and ambiguous outcomes (which the report omits). That’s why the reports reads more like the argument of the case for the policy, or less charitably public relations for the policy, rather than an even-handed evaluation of it.

Don’t confuse this criticism of the report with criticism of the policy. I have no doubt that there were some benefits to the change in Portuguese policy. I know they got more addicts into treatment and I hope there are fewer drug users in prison today in Portugal than there were in 2001 (though even this latter point must be evaluated empirically because decriminalization, paradoxically, can in the long-term increase rather than decrease drug users’ contact with the criminal justice system as the Australian experience has shown). My experience in drug policy persuades me that no country anywhere has ever had a universally-successful solution to the problems of drugs and alcohol, and I would have liked to see such a realistic, historically-grounded sensibility more strongly expressed within the Cato report. Some of the data suggesting a more complex picture that were not mentioned in the report are the following:

• Eurostat reports that the annual number of murders in Portugal began rising right after the new drug policy was put into place, during a time when homicide rates were falling in the EU as a whole. From 2001 to 2006 the increase in the number of murders was 41%. This is a number and not a rate, so population growth may account for a small part of it – but in any event, I find it hard to understand why the Cato report did not even mention these data, which were available at the time. Given the well-documented connections between substance use and violence, I believe these data should have been mentioned in a drug policy study.

• Cocaine seizures in Portugal increased seven-fold between 2001 and 2006, according to the U.N. World Drug Report. One explanation may be the imperfect market signal that is sent through drug policy, i.e., transnational criminal organizations may have taken the new policy as a sign that Portugal would be a safer, lower-enforcement venue in which to operate. The report does not mention this possibility.

• The European Monitoring Center for Drugs and Drug Addiction 2007 annual report indicates that Portugal has the second highest rate of HIV/AIDS among intravenous drug users in the European Union. Again, these data were not mentioned in the Cato report, even though reduction of HIV/AIDS is generally considered a central goal of public health-oriented drug policy.

• The latest data from the European Monitoring Centre for Drugs and Drug Addiction show that from 2001 to 2007, the proportion of Portuguese people age 15-64 who used heroin in the past month doubled and the proportion who used cocaine tripled. The absolute rate remains low, but again, such rises should have received some serious attention in an evaluation of the nation’s drug policy. The Cato report says on page 11 that the population’s drug use increased “only slightly or mildly.” These are unusual terms to use for a tripling of cocaine use in a population; most people would consider such a change as more than slight or mild.

The report also doesn’t do a sufficiently thorough job of examining alternative explanations for the findings, attributing all the positive effects noted to decriminalization. Portugal, quite laudably, dramatically expanded methadone maintenance and other forms of treatment at the same time they decriminalized. Other countries that have expanded treatment have reaped significant public health and safety gains, so it must be seriously considered whether it was the treatment expansion that produced the positive changes noted in the report. The author of the Cato report asserts that decriminalization is what makes treatment expansion possible. But this is verifiably untrue, both France (from the mid 1990s to the early 2000s) and the United States (in the early 1970s) expanded treatment enormously and reaped large public health and public safety gains without decriminalizing…the latter policy has never been necessary to cause the former. Indeed, President Nixon initiated the largest expansion of drug treatment in U.S. history while openly battling the idea of decriminalization.

There are also aspects of the report that leave me puzzled as a policy analyst. The author attributes to Portugal’s 2001 policy change the country’s lower rate of lifetime drug use relative to the EU as a whole, in 2006. This is a singularly strange claim. The drug use over a Portuguese person’s lifetime will be far more shaped by policies that have been in place throughout his or her lifetime than in the past 5 years (e.g., a person who was 40 in 2006 would have had 35 years under the old policy and 5 years under the new policy). Similarly, the author presents a figure on page 19 showing a rise in drug-related deaths in Portugal up to 1999 and then concludes that the 2001 policy caused the lower number of deaths seen in 2005. But there are two years between 1999 and 2001 that are not discussed, and during this time drug-related deaths fell sharply. Again, I am puzzled: How could a policy change implemented in 2001 be credited for a reduction in deaths that began two years earlier?. Also worth noting is the fact that last year (after the Cato report came out) Portugal reported more drug-related deaths than it did in 2001.

None of this should be read as a condemnation of the Portuguese government – they expanded treatment and tried to lower the number of non-violent drug users in prison, which are good things. Indeed, I have spent a great deal of time pursuing similar goals with state and national governments. My complaint rather is that the Cato report doesn’t do a sufficient job of helping us all understand the complexity of what happened in Portugal, the positives and the negatives that policymakers know are always both present in the world of public policy. Instead the report gives a partial picture that supports a particular (perhaps predetermined) conclusion, and that creates doubt in my mind about its value as serious policy analysis.

Comments

  1. Mark Kleiman says

    My bloggingheads with Greenwald has been postponed; no replacement date yet. And on reflection, perhaps I will wait until after the taping to get wasted.

  2. says

    “the definitive study of drug legalization”? Has anybody significant actually said that?

    Of course there hasn’t been a definitive study of legalization. That’s because we won’t allow any country or state to even try it (either through pushing for compliance with the Single Convention or through federal clamp-downs on state experimentation). It’s like we don’t want to know the answer.

    What the Portugal experience gives us is not a certain and rosy picture of legalization, but rather a response. A response to the drug warriors who have opposed even the Justice Brandeis laboratory of legalization because of fears that society would collapse (such as the completely bizarre and unsupported belief that in any legalization model people would use cocaine at the same rate as the U.S. currently uses alcohol). Portugal, while not legalization, and not a proper laboratory for it (because it can’t be), is at least an indicator that such fears are overblown, and that perhaps a true regulated laboratory experiment could be conducted without it triggering Armageddon.

    The Portugal study was making a point, no doubt, and it had a goal of getting people to pay attention to what was going on in Portugal, not because Portugal is the same as the U.S. or that its policies are the same as legalization, but because it is an actual case of reduced criminal enforcement that we can study. It has succeeded. Certainly nobody here prior to Glenn Greenwald was paying attention to the drug policy experiments in Portugal (and most certainly not the policy-makers in our government).

  3. Brad says

    Keith, I much appreciate your careful analysis of the report and the parallel discussion of the underlying situation in Portugal. Your analysis is most useful in thinking about the question of legalization. That question has no absolute answers and can never have, thus you are also an advocate for a position which depends on your value system as well as your brilliant dissection of the Cato report. There are and will be other views offered here and points of view that you didn’t present will have to be weighed as well (see Peter Guither above).

    Greenwald is also a lawyer and his arguments are often very much as you describe for the Cato lawyer. Your brief discussion has the potential to be more complete, but I don’t find it any less supportive of a position (yours, naturally) than Greenwald’s. I don’t want to call either position “biased” because neither is a bias, but rather, each is a well thought out stand on a question where there can be no absolute right answer. Thus a debate with GG is a debate about values – I’ve never seen GG simply lie about his data or misrepresent some objective reality. I have seen him present arguments that I disagree with, as I have seen you.

    What is my point. I find much of the criticism of Greenwald disingenuous. There are issues where he disagrees with you and Mark where there is an objective reality which you would argue must be ignored. Obama has done things that some of us find illegal. It isn’t sufficient to say “…but he got the ACA through…” as an answer to all of the criticisms Greenwald (and others) have leveled. Things like the total ignoring of the rule of law in numerous instances, stepping on civil rights generally, and on and on. It is difficult to counter Greenwald where he has objective reality and absolutes such as the law and the constitution at the base of his arguments. Instead, the RBC vilifies him and makes snide remarks, or out and out call him a bomb thrower. The only reason I can see for calling someone a bomb thrower is that his points are so unassailable that they can’t be refuted – we all hate to lose an argument, especially when it disrupts our own solution to the cognitive dissonance that has arisen (denial isn’t just a river in Egypt).

    Your points re legalization are cogent and effective in rebutting both Greenwald and Cato. I don’t know who wins the argument, I don’t know that there can be a winner. I personally abhor what some illegal drug use (abuse) does to people and to society. I believe that society has the duty to protect itself. I also abhor what society does to some, many, drug users who are not abusing (but are using) and Greenwald is out there making his points, both on drugs and on the other issues related to the use and misuse of the law by those in government.

    I believe the latter is a very good thing.

  4. Maynard Handley says

    @Pete Guither
    “(such as the completely bizarre and unsupported belief that in any legalization model people would use cocaine at the same rate as the U.S. currently uses alcohol)”

    Why is this a bizarre and unsupported belief? I have no opinion either way, but it doesn’t strike me as at all bizarre. People drink alcohol because one or more of things like
    - they believe it makes them feel emotionally good
    - they believe it makes them better at something (interpersonal relationships or whatever)
    - they want to switch off their brains

    If cocaine does those same things, and does them better, why not use it instead? You say: people won’t do so because they long at the long term consequences and see that this makes no sense. Sure — the same people who start smoking in school? The same people who, sans high-school diploma and a job, have a kid at 18? The same people who don’t bother thinking about how to fund their retirement until they reach 55?

    And I’m not sure that Portugal’s experience is valid to this claim. There is a very different social message between “the police won’t actively seek you out” and “this is legal, and therefore no different from aspirin, or tobacco, or alcohol”.

  5. says

    “decriminalization, paradoxically, can in the long-term increase rather than decrease drug users’ contact with the criminal justice system as the Australian experience has shown”

    How did decriminalization lead to more drug users in prison in Australia? 5 minutes of googling did not enlighten me so I demand an answer from an expert.

    My guess – moderate users became heavy users and turned to other crimes to fund their addiction.

  6. Keith Humphreys says

    Hi Adrian: Sorry to be slow in response, I am out of the country with limited web access. To be likely too brief, in criminal justice, there is an interesting phenomenon known as “net widening”. When the penalties for an offence change, police often change their behavior. Before the legal change they would say “Well, I don’t want to screw up the life of some kid with a spliff by putting him in jail so I won’t do anything other than give him a warning not to smoke pot on a street corner” but then when the law gets more liberal and changes the jail term to a fine, the cop says “well, It’s just a fine, let’s go ahead and write him up”…problem is that a lot of people don’t pay the fine (The Aussie term was expiation notice) and end up getting in more trouble for unpaid fines than they ever would have before the “liberal reform”. So what started out as a plan to reducing criminal justice contact with drug users ends up doing the opposite. I am happy to post some references on this when I get home. Best Keith

  7. says

    @Maynard Handley: “Why is this a bizarre and unsupported belief?”

    It is unsupported because there is no evidence anywhere that this would happen. It is bizarre because it assumes that cocaine and alcohol share too much in common, that substitution would not occur, and that there is no way to imagine a legalization regime that would be able to adjust that level.

    I have heard some (including posters here) assume that legal cocaine would result in the same level of use/abuse as alcohol (and thus, dramatically increase harm). It’s an extremely simplistic view of drug consumption. After all, even within alcohol, we have remarkably different consumption patterns between such things as beer and scotch. When Salvia was legal, there was far less usage than of illegal marijuana. Even though both got you high, marijuana was deemed more enjoyable and acceptable. Different substances will have remarkably different usage patterns. Some of that will be determined by social approval. At least at this point, cocaine (as we see it used today as crack or powder) would certainly not have the same level of social approval as alcohol. We have also seen changes in cocaine use trends that appear to be based on disapproval of cocaine abuse (which has a more immediate impact than getting cancer after 30 years of smoking tobacco).

    Additionally, there are so many ways that a legalization regime could occur. Easy acquisition of coca products (tea, leaves to chew, etc.) which would have limited negative effects and some health benefits, along with much more regulated (perhaps through pharmacy or state store) access to stronger cocaine. See Transform’s Blueprint for Regulation: http://www.tdpf.org.uk/blueprint%20download.htm for just one example of a legalized regime that would have strong control.

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