Growing recognition over the past decade that punitive drug policies under the ‘war on drugs’ has failed to curb drug use has not resulted in fewer people in prison under such policies globally. An overwhelming majority of countries continue to criminalise the possession of drugs for personal use and, based on the 30 countries reviewed in the Global Drug Policy Index launched in 2021, countries continue to impose pre-trial detention and lengthy prison sentences, including for low-level involvement in drug trade. This continues to be a key contributing factor to the rising global prison population, and prison overcrowding. An estimated 2.2 million people worldwide are in prison for drug offences, 22% (470,000 people) for drug possession for personal use (see Imprisonment and prison overcrowding).
New data published in 2022 confirm the disproportionate impact of imposing pre-trial detention and prison sentences for low-level drug offences on women. This is particularly seen in the Americas and Southeast Asia where there are high levels of overcrowding. For example, since 2000, there are more than nine times as many women in prison in Cambodia, where 73% of all women in prison were detained for drug-related charges in 2020. Since 2000, there are more than seven times as many women in prison in Indonesia and four times as many in Brazil. In both countries, enforcement of drug policy was found to disproportionately impact women in the Global Drug Policy Index. As noted by the organisations Mujeres Libres and Dejusticia, 39% of a total 6,503 women deprived of liberty in Colombia are related to trafficking, manufacturing, or carrying drugs, despite their low-level roles within criminal organisations.
The use of the death penalty for drug offences persists in a minority of 35 countries.
Not all carry out executions, but the 8 countries categorised by Harm Reduction International as ‘high application States’ (in which executions of people convicted of drug offences were carried out and at least 10 drug-related death sentences per year were imposed in the past five years) are all in Asia. In total, at least 285 drug-related executions were carried out in 2022, excluding figures from China, Vietnam, and North Korea, where state secrecy and censorship prevent confirmation of minimum figures; this represents a 118% increase from 2021, and an 850% increase from 2020 (see Death penalty).
Encouragingly, an increasing number of countries and jurisdictions favour an alternative approach to drug use by decriminalising certain offences. There has been some form of decriminalisation in 63 jurisdictions in 36 countries worldwide, with significant differences and levels of effectiveness.
In 2022-23, states in Canada and Australia were the latest to decriminalise small amounts of a range of illicit drugs. In Australian Capital Territory, criminal charges for possession of a small quantity of the decriminalised drugs, including heroin, cocaine and speed, will be replaced with a civil fine, counselling, or a caution in a law that will come into effect later in 2023, with training for frontline workers including the police in the interim. Similarly, the Canadian province of British Colombia was granted an exemption from the national drug law to replace criminal charges with advice about health and social supports, including treatment and recovery services if requested, for adults found in possession of a combined total of 2.5 grammes of the decriminalised drugs. In addition, Barbados and two US states (Maryland and Missouri) have decriminalised small amounts of cannabis, while in South Africa, the Constitutional Court ruled that the criminalisation, prosecution, or obligation for minors to engage in a diversion programme in relation to cannabis use and possession was unconstitutional and should be responded to by social systems, rather than the criminal justice system.
A significant development has been a law adopted in Thailand in June 2022 which made it legal to cultivate and possess marijuana – the first country to shift in an otherwise repressive region when it comes to drug control.
This followed reforms in 2021 to reduce penalties and promote a health-led approach to drug use. So far, these reforms have lacked a solid regulatory framework, which has led to some backlash. In February 2023, Thailand’s Minister of Public Health announced changes which would reduce the limit for possession of methamphetamine for personal use from 15 pills to one, with those found with more than one pill subject to harsh penalties including imprisonment. If approved by cabinet, these changes could result in a significant increase in prison numbers in an already overcrowded prison system.
In the US, where drug policy varies between states, small steps have been taken at the federal level. President Biden in October 2022 took executive action to pardon people convicted of simple marijuana possession under federal law and urged all governors to take similar action in their states where most convictions occur, stating no one should be in a local jail, state or federal prison solely due to the possession of marijuana. In December, the US attorney general instructed prosecutors to file lesser charges in non-violent, low-risk cases so that mandatory minimum sentences are avoided for cases involving crack cocaine to address sentencing disparities that create ‘unwarranted racial disparities’. Legal reform, which has stalled in Congress, is still needed for the change to become permanent.
At the multilateral international level, new analysis by the International Drug Policy Consortium has found that, in recent years, the historical isolation between the drug policy and human rights bodies within the UN system has eroded significantly, and with accelerating speed, with 2022 marking a turning point in consensus-based policymaking on drug-related matters. In December 2022, for the first time a resolution was adopted by member states of the UN that did not refer to a drug-free society, but rather included more balanced language on the need for alignment between drug control policies and human rights obligations. This was followed by a resolution on drug policy at the Human Rights Council in April 2023, which contained the strongest human rights language ever adopted by consensus, in particular on harm reduction, racial discrimination and the rights of Indigenous Peoples.