This is your justice system on drugs

The truth is that our justice system does not reform criminals. It produces them.

I don’t know how familiar everyone here will be with the old ‘this is your brain on drugs’ ad. It was after all a long time ago, and as far as I know it was never shown on local TV. But it remains the most archetypal public battle cries of the ‘war on drugs’ motif: at least, from the early 1990s when the same ‘war’ was at full tilt.
You’ll probably find the original on YouTube, but if you can’t be bothered here is a brief synthesis from memory:
“This is your brain” (picture of egg).
“This is your brain on drugs” (egg is cracked open, and its contents emptied into a sizzling frying pan).

The intention may have been to underscore the psychological damage caused by certain mind-altering substances; but personally speaking the immediate effect was always to make me hungry. A sort of psychological correlative for the munchies, I suppose. The sight of an egg frying away in a pan automatically calls to mind other sights, sounds and smells. Sausages. Crispy bacon. Baked beans. Toast. It makes you reach for the coffee pot in your mind’s eye... and if one isn’t readily available, it will make you meander to the kitchen and put on the kettle. Which is kind of ironic, seeing as a supposedly anti-drug ad was also partly responsible for at least one person’s lifelong addiction to caffeine…
About the last thing you’d think about watching that ad, I would say, was a heroin overdose. Or enforced prostitution due to extreme addiction. Or petty theft to finance a drug habit. Organised crime. International drug trafficking networks. All the traditional – and, it must be said, very real – dangers associated with that scary word, ‘drugs’.
I remember thinking back then that if the architects of the ‘war on drugs’ could get such a simple message so completely wrong, defeat was more or less guaranteed. And oh look: 20 years later, the rest of the world – and now Malta, too – has come round to acknowledging that the war on drugs has in fact been lost. The Global Drugs Commission said as much in these precise words: “The global war on drugs has failed, with devastating consequences for individuals and societies around the world.”
The governments of Portugal, Uruguay, several US States, Switzerland, Belgium and elsewhere have all come to the same conclusion, and modified their legislation accordingly. Even here in Malta, government’s drug agency Sedqa has urged for a rethink on national policy, for much the same reasons.
Technically, however, none of these entities are accurate. The war on drugs was not so much ‘lost’ as never even fought. What we actually fought was a war on drug users, and that is not the same thing at all. Malta in particular has taken this war to extremes. We have progressed, I concede, from the days (not that long ago) when camouflaged AFM soldiers would stop you in a roadblock – but only if you were driving a battered Ford Escort – and search you and your vehicle wielding flashlights and machine-guns. And we have made some minor modifications since the days when 17-year-old Swiss tourists were automatically imprisoned for possession of less than 2g of cannabis.
But law enforcement policy is still very much concerned with apprehending small-time users, still over-reliant on archaic legislation (which, among other snags, fails to distinguish between different drugs, or between ‘cultivation’ and ‘trafficking’)… still, in a word, attached to the failed systems of yesteryear.
It was against this backdrop that the prime minister recently announced that the ‘decriminalisation of certain drugs’ will be the next issue on the agenda. About bloody time, I would have thought. And so would all the people who have variously called for similar reforms in the recent past: not least, the Justice Reform Commission under retired European Court judge Giovanni Bonello… on whose advice Muscat is presumably acting.
But of course, being an ultimately political issue, people have to invariably crawl out of the woodwork to discredit the proposal. The latest to take to the lists was retired judge Joe Galea Debono – who handed down his fair share of prison sentences for drug-related crimes in his day – who now claims that the Maltese justice system is among the meekest and mildest of the world when it comes to the D-word.
“Drug users aren’t sent to prison, this is a misnomer. They are given a slap on the wrist, perhaps a conditional discharge and a fine but certainly not prison… I don’t understand what all this hullaballoo is about,” he told a journalist this week.
To me, the three most significant words in those two sentences are: “I don’t understand.” In fact, that was all he really needed to say. The rest merely illustrated the sheer extent to which a man who presided over so many drug cases in Malta simply failed to understand the very issue he was passing judgment over. It is mere fluff.
But let’s take things one step at a time. First off, Galea Debono is wrong. Malta’s justice system does sentence drug users to prison: even first-time offenders. In the same week as Galea Debono made his claim, the European Monitoring Centre for Drugs and Drug Addiction issued a report which revealed that Malta is in fact Europe’s second highest spender on accommodating drug users in prison, with particular reference to first-time users. This is how it was reported in The Independent: “The EMCDDA estimates that in 2010 Malta spent as much as 0.084 per cent of its gross domestic product – €5,208,000 – on this category of prisoner. Malta was only outspent by Italy, which dedicated 0.087 per cent of its GDP to drug offenders.”
Even taking differences in size and population into account, “…Malta is nevertheless spending a disproportionate amount on drug offence prisoners, particularly on first-time offenders – an area that the government appears to be intending to address….”
The same report adds that 85% of all arrests made for simple possession were of people aged between 15 and 34, and 17% of those were offenders between 30 and 34 years of age.
OK, maybe my brain has been addled like that egg in the ad, but I for one cannot make sense of the above contradictory claims. How, exactly, did we manage to spend over €5 million in one year to keep drug users in prison, if according to a leading criminal judge we never sent any to jail in the first place? Not even repeat offenders?
The answer is of course because we do send first-time users to prison, and in large numbers too. We have even sent users to prison for possession of drugs that were not actually illegal at the time they were apprehended. I clearly remember a case in which the former Attorney general (now Chief Justice) Silvio Camilleri pursued a prison sentence for possession of Khat, at a time when this substance was not even listed on the Dangerous Drugs Ordinance. And he would have gotten away with it, too, if it wasn’t for the pesky Court of Criminal Appeal which overturned the original conviction. This, by the way, might also explain the overcrowding of Malta’s only prison, whose population has more than quadrupled over the past 20 years. What else to expect, if we send people to prison for possession of legal drugs, too?
So all things considered: no, I am not particularly surprised that Galea Debono would “not understand what all the hullaballoo is about”. The entire criminal justice system, from the lowliest police officer to the loftiest judge, doesn’t understand either. And they couldn’t make this clearer to us if they tried.
But I am slightly surprised that a retired judge would fail to understand the broader implications of the sentences he himself has handed down over the years. Yet Galea Debono seems not to understand that even in cases where the offender is not imprisoned, but fined or given a suspended sentence, the offence will still be registered in his or her criminal record, with consequences that will haunt that person for the rest of his her life.
Someone who has been convicted of a drug possession offence – note: a suspended sentence still counts as a prison sentence in the eyes of the law. In practice, it just means you don’t have to actually serve it in prison – will effectively be branded with an indelible ‘mark of Cain’. A criminal record for possession of cannabis will curtail your freedom of movement: it means, among other things, that you cannot get a VISA to go to the United States (weird, I know, given that some US States have now legalised the same drug. But anyway…) And in this age of biometric passports and the instant transfer of information, it could seriously impede your freedom in other ways, too. Certainly it will make it difficult to land a job. And seeing as 85% of these people are between 15 and 34… in some cases, yet to start job-hunting for the time; in others, struggling to maintain a young family, etc… the consequences of a criminal record can be little short of catastrophic, regardless of whether the person ever spent a single day in prison.
The truth – and Joe Galea Debono is not the only one who fails to comprehend this – is that our justice system does not reform criminals. It produces them. It does this by unnecessarily criminalising people as young as 15 over offences which are not considered worth pursuing by most modern police forces around the world. In many cases, their ‘crime’ would have been to be caught smoking a joint… when there is an abundance of medical evidence, freely available to anyone who cares to look, that the drug in question is less harmful to health or society than the alcohol consumed legally by judges and magistrates themselves… sometimes, as we all saw over the last Christmas period, in the comfort of the same courtroom where they will later convict teenagers for consumption of a less harmful substance.
And having produced those criminals out of nothing, the same system will then go on to spend more than €5 million in one year trying to ‘reform’ them in prison. Yet all along it is not the random smokers of joints who need to be ‘reformed’… it is a perverse and bizarre criminal justice system that constantly harangues ordinary citizens and portrays them as ‘menaces to society’… when we can all see with our own eyes who the real menaces to society are.