One More Time…Drug Legalization is Not Decriminalization

Zack Beauchamp makes an extremely common analytic error in a post on drug policy. In an effort to refute Water Russell Mead’s argument that we can learn something about drug legalization from the legal opioid pain medication industry, Beauchamp responds by citing data from Portugal.

I am not going to get into the substance of their debate here. I am writing only to point out that Portugal hasn’t legalized drugs, it has decriminalized them. Pain medications are legalized, i.e., there is a legal industry, advertising, lobbying, a government controlled regulatory system, no civil or criminal possession penalties etc. None of this is true of marijuana, heroin, cocaine etc. in decriminalization regimes such as exist in Portugal, which simply remove criminal penalties (Portugal still has civil penalties) for possessing small amounts of drugs and for using drugs.

Everyone who understands drug policy, whether they advocate for legalization, decriminalization, or the status quo, knows that equating decriminalization with legalization is at best wrong, and at worst terribly misleading. Beauchamp is throwing apples at Mead’s oranges.

p.s. Part of the confusion of these two terms no doubt stems in part from the fact that U.S. alcohol “Prohibition” was what we would call today a decriminalization regime.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College London. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over thirteen thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

15 thoughts on “One More Time…Drug Legalization is Not Decriminalization”

  1. In the accepted parlance of drug policy, the distinction is true. But to be pedantic, legalization would entail decriminalization viz. criminal (and civil) penalties would have to be removed.

  2. Quick Questions to the RBC Drug Policy Team:

    1. Has any society decriminalized cocaine, or more bodly, legalized cocaine? When those who advocate for a relaxation of regs to apply to cocaine, I always wonder, “Has this ever been applied before? And if so, was it successful?”

    And let’s take coca-leaf chewing out of consideration, because that is more or less a different drug the chemically synthezied cocaine…

    2. When advocates of decriminalization/legalization want to apply it to opiates, the one case where I think of where this was done was in China back in the nineteenth century. And from what I recall, it was a public policy disaster.

    I am not congenitally hostile to legalizers/decriminalizers of drugs, but for cocaine, they lack a real-world example of a successful policy, and for opiates, they have a real-world example that refutes many of their claims.


    1. 1. Yes, Portugal, the Czech Republic and a few other countries have decriminalized cocaine. No society has legalized cocaine, although when the drug was first synthesized it was legal and sold in many patent medicines and was even included in trace amounts in a popular beverage we all know.

      2. China in the 19th century was legalization rather than decriminalization. The British imposed by force a legal, aggressively promoted opium industry and Chinese society was being destroyed by it. That’s why they fought so hard against Britain to end it.

      1. I’ve always questioned whether we really know if opium was destroying Chinese society in the 19th century. How do we really know that, because the Chinese government at that time said so?

    2. Cocaine had not previously been illegal, but it was legally sold and used in England in the 1800’s. (Sherlock Holmes used it regularly–see Sign of the Four.) Opium and the opiates were legal everywhere until the 1920’s (think of all the references to laudanum).

  3. Keith:

    Your distinction applying to Portugal is important, because it does not penalize aggressively the average user, many of which probably do not even have an addiction problem with cocaine, or are on the lower-end of the spectrum of “addiction”. But it is not as if you can open up a cocaine factory in Oporto with Portugese authorities being cool with it…


    1. Yep — same thing with cannabis trafficking in the Netherlands…the Dutch police are very tough on marijuana traffickers, even though individuals can use the drug without penalty in the coffee shops.

  4. Not to be a quibbler, but in the Netherlands, the authorities appear to be even cool if you are manufacturer or trafficer of possibly not just the the plant, but the seeds. I know as fact that a whole business, fairly open, exists with the cultization of cannabis seeds, with distribution internationally…

    My impression for cannabis trafficing and production in NL is as follows: The Dutch authorities are relaxed towards established players in the manufacturering and distribution of the product, especially if it is kept in country and especially in coffee-shop. Not so much for plants distributed across the EU or across oceans…

  5. No, I see your point. I just wonder if the arrest figures are largely towards those growers and distributors that are non-established, and especially those that are non-Dutch, with those who are in the “in” club and who are Dutch getting a pass. Its telling that your link is about producers who are non-Dutch nationals. There seems to be a lot of Dutch national producers and distributors of cannabis that are “loud-and-proud” of their status. You seem something similar in BC, Canada…

    Ok, now you can call me a quibbler. 😉

  6. I think you miss Zack Beauchamp’s point. If you are caught using opioids for recreational purposes in the United States, you go to jail. If you do so in Portugal, you don’t. That’s why he sees Portugal as a better indicator of legalization than the so-called “legal” prescription market.

    Zack is properly pointing out that using the prescription system that exists today as an argument against legalization is faulty, because no recreational user can legally get a prescription.

    You may quibble with how he expressed that, but that’s more semantics than analytical error. And until the U.S. stops intentionally preventing any experimentation in legalization anywhere in the world (why is it that they don’t want to have any real data on legalization?), partial glimpses like Portugal and the Netherlands is all we have for data.

  7. Wait, are you saying that US alcohol Prohibition was, as it was actually implemented, anything like what a good current well-designed program of drug decriminalization would be?
    I’m no expert, so this really is a question. I can see some parallels : in Prohibition, my impression is that individual users were rarely prosecuted, while larger suppliers were targeted. But on the other hand, my impression is that the culture of local law enforcement in Prohibition was generally far more supportive of alcohol than current law enforcement would be of any non-alcohol drug use (which has pretty big implications for how openly the law would be flouted and how willing law enforcement would be to become corrupted). If my impressions are way off, please correct them.

    1. Hi Quercus: I am not saying it was well-designed, just that drinking was still legal, as was for most of the time, home production. Enforcement was very, very light, a couple hundred feds for the entire country or something like that. Locals varied in their support, some pretty much let everything slide, but many states kept prohibition after the federal prohibition was repealed.

  8. Between the examples of The Netherlands/Portugal, and prescription drugs, we can put together some good data. In the large-scale legal manufacture of pharmaceuticals there are no drug cartel wars nor funding of terrorists. Owners of coffeeshops in The Netherlands don’t kill each other that i know of. Large scale illegal growers of weed in The Netherlands i think do kill each other. In The Netherlands and Portugal drug use did not skyrocket. It’s true that we are yet to see an example that puts both together (where both the large scale production and the personal use are legal), and that might be different.

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