Comparing policies towards soft drugs in the Netherlands and Sweden

The main objective of this paper is to compare the drug policies towards “soft” drugs like cannabis in the Netherlands and Sweden. At first glance the two countries´ attitudes towards use and possession of soft drugs appear to be on opposite sides of the scale from the Swedish zero tolerance to the Dutch more liberal view on soft drugs that manifests itself in the coffee houses. The coffee houses are licensed to sell small amounts of cannabis for use on the spot.

I got interested in this aspect of the drug policies after a discussion I had with a friend who works with rehabilitation of drug addicts in Sweden. He argued that countries like the Netherlands who deploy a rather liberal view on, at least the soft drugs, have a rather harsh attitude towards users that do not comply with the rules compared to countries like Sweden. For use in this paper I will compare the legislative systems of the two countries. I will look for material on the issues that is accessible via Internet, preferable posted by government agencies in the two countries. The main idea is to discover how the two countries present their policies via media that is accessible to any citizen.

It is my intention to gather material from the two countries government and national health care bodies. I also want to check the EU websites on this subject.

Superficially the two countries have many similarities – they are small, independent countries in Europe with high living standards and a highly educated population, compared to other countries. Both countries are constitutional monarchies and unitary parliamentary representative democracies. They both do well in international indexes on welfare, educational systems and per capita income. The approximately 16.7 million inhabitants in the Netherlands live in a area of 41.500 km². Around 8.4 million inhabitants in Sweden live in an area of roughly 450.000 km². That means that the Netherlands houses almost twice the number of inhabitants compared to Sweden on roughly 11 percent of Sweden´s area. These figures only give a hint about the scene where it all happens. In the following I describe the situation in the two countries, starting with the Netherlands, then I compare certain aspects and conclude with a couple of final remarks.

The situation in the Netherlands > According to EMCDDA, the European Monitoring Centre for Drugs and Drug Addiction, (EMCDDA 2012), the Netherlands’ 1995 white paper ”Drug policy: continuity and change” stated the basic principles of Dutch drug policy: a distinction between soft and hard drugs; a balanced and integrated approach; and four major objectives. These are: (1) to prevent drug use and to treat and rehabilitate drug users; (2) to reduce harm to users; (3) to diminish public nuisance by drug users; and (4) to combat the production and trafficking of drugs. This white paper, which addressed only illegal drugs, was complemented by several specific strategies in the drug field: dismantling ecstasy production locations (2001); stopping cocaine trafficking by drug couriers using airplanes (2002); and dismantling large-scale cannabis cultivation (2004).

In 2011, the new government stated its intention to give a ’new impulse’ to the Dutch drug policy in a “drug letter” (drugsbrief). Among the foreseen changes are stricter rules for coffee shops. On December 15^th 2011 the Dutch Minister of Security and Justice (De Minister van Veiligheid en Justitie. 2011) sent a signed document to the President of the Second Chamber of the Dutch Parliament stating some revisions to the regulations regarding the coffee houses. The major criteria is that as of January 1^st, 2013, each coffee house may have maximum 2.000 members. This is a enforcement of the idea that the coffee houses are private clubs. There has to be a mandatory membership list that has to be done so it can be handed over and inspected. To qualify as a member you should be over 18 years and a resident of the Netherlands. As of January 1^st, 2013 there is to be a distance criterion deployed that implies that the minimum distance between a coffee shop and a school for secondary or vocational education for students under 18 must be 350 meters (De Minister van Veiligheid en Justitie. 2011). This is a way of coming to grips with residents of neighbouring countries coming to the Netherlands to use the coffee houses. The distance criterion regarding schools for minors is an attempt to avoid pushing to minors and that they visit the coffee houses and are allowed in because they look old enough.

Certainly the most famous element of Dutch drug policy, writes Uitermark (2004), is that coffee shops are allowed to sell hashish and marijuana. It is important to emphasize that not just anyone who wants to sell cannabis is allowed to do so. In fact, most municipalities do not allow coffee shops in their jurisdictions, and those that do typically try to keep their numbers very low. In addition, the quantity of cannabis that can be sold to individual customers or kept in storage is limited. A maximum of five grams can be sold to each customer, and a coffee shop is not allowed to have more than 500 grams of cannabis on hand at any time. Cannabis can only be sold to persons who are 18 years of age and older (Uitermark 2004:519). 
 

The Dutch government (Rikjsoverheid.nl. 2012) states on its website that both soft drugs and hard drugs are illegal to posses, produce or market. It may be illegal but the same document states that “Drug use in the Netherlands for people aged 18 and older is not punishable.” That means that drugs are illegal but not punishable to use. The same document states that it is not permitted to grew marijuana at home, but if you do being caught with five plants or less will not render a punishment. The police just confiscate your plants in the same manner they confiscate your cannabis if you have five grams or less on you, or in your home. If you happen to posses more that five plants or more than five grams you will be prosecuted. This tolerance (gedoogbeleid) does not cover minors under 18 years, for them the purchase and possession of soft drugs are prohibited.

The Netherlands have a tradition of a liberal attitude towards lighter drugs like cannabis. In the literature the situation in the country seems to be more complex than just a liberal attitude towards drugs in a wider perspective. The fact that prohibition laws are only selectively applied in the Netherlands provides us, according to Uitermark (2004), with the opportunity to speculate about alternatives to global prohibition and how these might be developed. Even though there are many ambiguities it is remarkable that successive Dutch governments over the last 30 years continued to develop and support an alternative approach to the regulation of drug use, while withstanding strident national and international pressure (Uitermark 2004:511). The liberal attitude towards, especially “soft” drugs, has its cost. The Dutch are well aware of the implications of this as, a health issue for young people, and the risk for criminality to finance drug use further down the way in the career of drug use. The Dutch are convinced that the drug policy they deploy is working well to prevent health hazards as stated in a report from 2009.

The advisory committee on drugs within the Dutch government issued a report on Dutch drug policy in 2009 (Adviescommissie Drugsbeleid 2009) titled “No doors but deeds, new accents in Dutch drug policy”. In this document it is stated that: “Dutch drug policy conforms well to the objective of reducing damage to the health of users. Components on the policy, however, are in urgent need of change” (Adviescommissie Drugsbeleid 2009:5). In the same document it is stated that cannabis use among Dutch adolescents is above the average in Western countries. This applies to both the percentage of current users and the more frequent use of cannabis. It seems that under at least some of youth cannabis use is considered 'normal'. In comparison with their European peers Dutch youth consider cannabis as easy to get and they estimate the risks lower. The committee believes that a more restrictive direction is needed, based on clear social norms (Adviescommissie Drugsbeleid 2009:27).

Drug use and possession > The Dutch drugs legislation is, according to The European Monitoring Centre for Drugs and Drug Addiction (2012) based upon the principle of the separation of markets of cannabis (also known under the non-legal term of 'soft drugs') and other drugs ('hard drugs'). The penal provisions set in the framework of the drugs laws must be understood in this context.

Drug use does not constitute a crime in legal terms. There are situations when the use of drugs is prohibited, such as for instance schools and public transportation. It is up to the responsible authorities – which is not the national government – to regulate this.

By not criminalising drug use drug users are less hampered in looking for institutions responsible for prevention and care. Law enforcement priority and resources are given to the investigation and prosecution of production and (international) trafficking in drugs. 
 

When the principle of separating the markets between dangerous drugs and cannabis was codified in 1976, coffee shops gradually emerged as the 'official/unofficial' sales channel for cannabis, albeit under strict conditions. 
 

Coffee shops are tolerated in the attempt to keep young people, who experiment with cannabis, away from other much more dangerous drugs. The sale of small quantities of cannabis in coffee shops is therefore technically an offence, but prosecution proceedings are only instituted if the operator or owner of the shop does not meet the criteria issued by the Prosecutor General:

• no more than five grams per person may be sold in any one transaction and the coffeeshop is not allowed to keep more than 500 grams of cannabis in stock;
• no hard drugs may be sold;
• drugs may not be advertised;
• the coffee shop must not cause any nuisance;
• they are not allowed to sell alcoholic beverages;
• no drugs may be sold to minors (under the age of 18), nor may minors be admitted to the premises.

Prosecution and judicial practice > Prosecution policy in drug related cases is substantially determined by the directives issued by the Prosecutor-General. The directives, adopted in 1996 and amended and renewed in 2001 and 2005, indicate for each drug related offence how to proceed with regard to criminal investigation, prosecution and demanding penalties. Among the guidelines are those indicating the quantities to be considered as the concept of 'small quantity of drugs' for personal use, the conditions of running of the coffee shops and of course the guidelines for offences against the Opium Act.

In the Netherlands, criminal investigation and prosecution are mostly carried out under the so-called expediency principle (opportuniteitsbeginsel). This means that the Dutch Public Prosecution Service (which is the only body in the Netherlands authorized to prosecute) can decide on its own and with full authority to refrain from prosecution if this serves the general interests of society. This power of the Public Prosecution Service is used very frequently. In these cases, it is decided to impose a waiver of prosecution, which can be either conditional or unconditional. The Public Prosecution Service uses these possibilities in case of minor offences to create a wide berth for more important and more severe criminal cases. 
 

A particular form of waiver of prosecution is the possibility of transaction. All criminal offences that are penalised with less than six years of imprisonment (in current practice this means 90% of all criminal cases) and additionally all minor offences can be processed and settled by the Public Prosecutor by offering the suspect to redeem the case. This means that the Public Prosecutor proposes to the suspect to pay a certain sum of money or to fulfil certain other conditions. In exchange the Public Prosecutor will not bring the case to court. The amount of money asked for by the Public Prosecutor cannot exceed the fine set for the criminal offence.

Prevention, care and treatment > The national government creates conditions for the development, implementation and evaluation of prevention programmes. Regarding the legal framework of drug prevention in schools three laws can be mentioned.

The Primary Education Act declares that the promotion of healthy behaviour is an obligatory task of primary schools (article 9.1.h WBO). Municipalities and their health care services are responsible for the implementation of collective prevention measures concerning health-risks for young people in the Collective Prevention and Public Health Act. 
 

The Basic Education Act for Secondary Education creates conditions for a broad and modern education, containing health promotion issues. The Healthy Schools and Substances project is developed within this legal framework.

On April 1, 1996 the Care Institutions Quality Act came into effect. This law set in motion a process of care innovation, which has received a significant impetus from the government's policy on nuisance. The ability of the existing facilities to reach addicts who cause nuisance is inadequate. Addicts causing nuisance must be reached more effectively in two ways: by setting up 'nuisance facilities' with the appropriate care objectives, and by improving the effectiveness of the existing addiction care system and making better use of the available capacity. The following key concepts must be employed to achieve the goal of improved effectiveness: opportunities for clients to move from one facility to another, and follow-up facilities where the (new) treatment objectives are in line with the results of the previous treatment. 
 

To ensure effective, good quality care, it is therefore important to achieve a high degree of coherence between the different care sectors and to ensure compatibility between their ways of working. 

Drug addicts who have committed a small offence are increasingly pressured to participate in treatment programs. Arrested drug addicts may opt for treatment by suspension of preventive custody, provided they enter clinical treatment and complete the program, they will be granted permission by a judge to leave the prison to be admitted to an addiction clinic as soon as they have served at least half their sentence, up to a maximum of six months (Article 47 Prison Regulation). Moreover, part of a prison sentence be substituted for alternative sanctions: socially useful work that must be fulfilled in a certain number of hours. The performance of such work is supervised by probation agencies. 
 

Moreover, the prison system has Addiction Counselling Departments where assistance is offered to drug addicts in order to stimulate their motivation for further treatment. The East Netherlands Institute for Addiction Care (IVON) is charged with setting up and running the Forensic Addiction Clinic (FVK) for problematic addicted delinquents who have committed several crimes and undergone a number of failed clinical treatments. The FVK has been fully operational since the summer of 1998. 
 

Another concept is the 'Placement in an Institution for prolific offenders (ISD)', formerly the Penal Care Facility for Addicts (SOV). The ISD is applicable for prolific offenders, of whom the majority are hard drug users. The aim is to safeguard society from offences committed by prolific offenders for a maximum of two years. The measure also offers options for behaviour interventions to reduce criminal recidivism, and in the case of addiction and/or psychological problems, these problems can be dealt with. Offenders are placed in a regular penitentiary institution. Central elements are a personal approach and cooperation between justice and care. 

The situation in Sweden > According to EMCDDA, The European Monitoring Centre for Drugs and Drug Addiction, (EMCDDA 2012) Sweden has two separate policy plans, one for alcohol and the other for drugs that come together in the ”National Alcohol and Drug Action Plans 2006–2010”. The drug action plan is comprehensive, focuses on illegal drugs and covers prevention, treatment and rehabilitation, and supply reduction. Its purpose is to establish a direction for drug preventive work and to guide and improve social efforts to tackle drugs. Implementation is the responsibility of local, regional and national actors. The overall goals of the drug policy are: reducing the recruitment of new drug abusers; inducing more drug abusers to kick the habit; and reducing the supply of drugs. This drug policy is combined with other social policies policy preventing unemployment, social exclusion, and so on.

In Sweden the attitude towards lighter drugs like cannabis has shifted from a rather liberal attitude in the 1960ies when possession of smaller quantities for your own use was not regarded as a crime until nowadays when possession and use are regarded with zero tolerance. In 2008 the Swedish National Institute of Public Health (Statens Folkhälsoinstitut 2010) sent out 58,000 questionnaires with questions on how the respondents used alcohol, drugs, doping and tobacco as well as questions on background and health. The selection was random and the weighted response rate was 52 percent. The results showed that about 23.4 percent of men and 12.3 percent of women in the population had used drugs at some time in their lives. This means that approximately 620,000 men and 320,000 women aged 15-64 have used drugs at some time. The largest proportion who had used drugs in the past month were found in the 15-24 age group by four percent. The most common type of drug was for both sexes cannabis, 16.4 per cent claimed to have used cannabis some time. 4.9 percent had used amphetamines, 3.2 percent cocaine, 3.0 percent hallucinogens, 2.0 ecstasy and 1.8 per cent opiates. 0.8 per cent had used cannabis in the past month, while the use of other drugs in the past month was 0.3 percent or less (Statens Folkhälsoinstitut 2010:51). For this paper the important findings in the survey are that cannabis is the most common drug and the 15-24 age group is where we encounter the most recent users.

Penalities > In Sweden, there are several alternatives to a prison sentence. If the sanction goes beyond a fine, the court may pass a suspended sentence or make a probation order instead of sentencing the offender to imprisonment, where this is appropriate and certain conditions have been met. However, for the most serious crimes, it is only possible to sentence the offender to imprisonment or to treatment. A suspended sentence (which is not possible if the offender has social problems) or probation order can subsequently be draw up in various ways. In fixing the sentence, the court must pay careful attention to any circumstances that warrant more lenient sentence than imprisonment. Both a suspended sentence and a probation order are considered more lenient than imprisonment.

Prosecution and judicial practice > The prosecutor has an absolute duty to prosecute. This means that the prosecutor must initiate proceedings for the prosecution of an offence, when he or she can foresee a conviction. This is a principal rule to which there are exceptions. Under certain conditions the prosecutor has a possibility to discontinue an investigation or to waive prosecution. It is important to state however that for drug offences, this possibility is limited to exceptional cases and in practice only in relation to minor offences. In 2000, the prosecutors in Sweden handled 29 636 cases of suspected drug offences. In 24 974 cases (84%), the offences consisted of possession and/or use per se, whereas 4 662 (16%) concerned drug trafficking.

Interestingly enough Sweden´s attitude towards drug possession and drug use show up in the rising figures of individuals doing time in prison. In 1971 only two percent of the population in Sweden were convicted for drug offense (Pratt 2008) compared to 31 percent in 2005. During the same time span prisoners convicted of theft and robbery declined from 49 per cent in 1971 to 17 per cent of the population in 2005; drunk drivers from 14 to 3 per cent; in contrast, violent offenders have increased from 10 to 23 per cent (Pratt 2008:275). According to Pratt convicted drug offenders and violent offenders have increased significantly. If cannabis, as the survey conducted by the Swedish National Institute of Public Health indicates, is the most common drug then, maybe, many of the convictions are for possession and use of cannabis. Is the decline in convicted thieves and drunk drivers a result of the Swedish police directing its attention towards drug offenders?

Prevention, care and treatment > The National Board of Health and Welfare is the central administrative authority for activities in the fields of social services and health and medical care and for other activities in the medical field, as well as for questions relating to substances abused, to the extent that these are not covered by the responsibilities of any other State body. According to the Narcotic Drug Controls Act (1992:860), narcotic medicines may only be supplied on prescription from a doctor, dentist or veterinarian. Such medicines must be prescribed with the utmost caution. Methadone maintenance treatment has been practised as a method of treatment for persons with intravenous opiate abuse in Sweden since the end of the 1960s. Treatment with methadone is currently given at units in the field of general psychiatry in Uppsala, Stockholm, Lund and Malmö.

Since 1998 persons with drug addiction problems who have committed a drug offence can be sentenced to treatment according to a 'treatment contract'. It is a real contract between the drug addict and the Municipality in which the two parties have rights and obligations. However, certain conditions must be fulfilled by the drug addict: the person must need treatment and he must be motivated to undergo treatment; he/she must be a misuser of drugs; and the drug habit must have contributed to the drugs crime, which should not be serious (less than 2 years imprisonment foreseen as penalty). The person is not sent to prison and a personal plan of treatment is established. The social authorities are responsible for the treatment and shall report to, among others, the local authority for probation and the public prosecutor if the probationer seriously neglects the obligations stated in the personal plan.

Comparisons between the Netherlands and Sweden > Looking only at the surface of the differences between the two countries in policies towards soft drugs they seem to have situated themselves at the opposite sides of the possible scale. How come that the two countries have developed such contrasting policies towards drugs? You may argue that the “allowing” attitude towards possession and own use of soft drugs in The Netherlands is a pragmatic manner of letting the police work with the more serious drug-related crimes. If you allow some consumption you will still have a problem with drugs getting into your country. Yes, even the soft drugs are illegal in the Netherlands, but will not be punished for personal use.

In spite of the zero tolerance policy of Sweden, drug use has, according to Tham (2005), increased over the last two decades. Swedish drug policy has according to official declarations been successful. The picture has been challenged through rising drug use and rising drug related mortality. This development has taken place in spite of the restrictive Swedish policy with further penalization of drug consumption, increasing number of police officers working with drug crime and rising number of persons sentenced to prison for drug offences (Tham 2005:257).

The idea with the Dutch coffee houses was to arrange a safe manner tin which members of the local population could use cannabis as recreation. In the Netherlands, argues Uitermark (2004), drugs have not been strongly associated with marginalized groups that are believed to constitute a threat to the purity of the nation, as the welfare state has prevented the formation of such (ethnic) groups. Also, perhaps as a result of the significance of political pluralism, there has never been a very strong sense of the direction in which society should move – in contrast to countries like Sweden and the United States, where such nationalist imagery has fostered negative feelings towards so-called deviant groups, including drug users (Uitermark 2004:515).

In the Dutch case, writes Uitermark (2004), the strength of youth movements and the formation and subsequent collapse of a pillarized political structure seem of prime importance. This raises

significant questions with regard to the transferability of drug policy innovations. In the case of the Netherlands, it seems to be the environment, and not so much the response of policy makers, that best explains the idiosyncratic nature of Dutch drug policies. Thus, these policies were among the unintended outcomes of more encompassing social processes (Uitermark 2004:524). The Dutch ministry of justice viewed drug use as a social and health problem rather than as a purely legal matter (Uitermark 2004:514).

In the case of cannabis, this means that proprietors of coffee shops are allowed to sell the drug if they yield to regulations, even though it is still officially listed as an "illegal" drug. In the case of ecstasy, it means that consumption is condoned as long as there are voluntary associations, municipal health departments, and local police who can regulate its use in such a way that related harms are minimized (Uitermark 2004:516).

Tham (2005) cites the annual reports of the European Monitoring Centre for Drugs and Drug Addiction, according to which the population of persons with problematic drug use does not seem to be larger in the Netherlands than in Sweden and Sweden is reported to have the fastest growing drug related mortality in the European Union (Tham 2005:61). That indicates that there is little difference in how the drug policies are really working in society between the examples of The Netherlands and Sweden.

Final remarks > The main objective of this paper was to compare the drug policies towards use of “soft” drugs like cannabis in the Netherlands and Sweden. On the surface it may seem like the two countries deploy drug policies that are completely diametral. In some respects the drug policies of the two countries are similar, they prohibit drug use and just go about the application of the laws in a different manner. My prejudice on Dutch drug policy as very permissive I had to adjust. What I regarded as total tolerance had to give way to the insight that the Dutch tolerance (gedoogbeleid) is lesser than I suspected. It may be looked upon as a way of having tolerance towards use and posssion of soft drugs for personal use and nothing more.

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