Can Portugal offer Philadelphia lessons in how to rethink drug charges?

As his office gets closer to releasing a policy that would, in some form, decriminalize the possession of illegal substances, Philadelphia District Attorney Larry Krasner is visiting  Portugal, where drug possession has been decriminalized nationwide since 2001.

Krasner was joined by more than 20 elected prosecutors from around the United States. The trip was designed to expose the officials to alternative models of criminal justice, and a public health approach to drug use. The group also traveled to Germany last week.

In Portugal, those caught with less than a 10-day supply of illicit drugs are diverted away from the criminal justice system. Their cases are heard by a “dissuasion commission” comprised of some combination of lawyers or judges, social workers and psychologists. From there, they may be referred to drug treatment. If the commission determines the person is not addicted, they might issue a fine or a warning. For those referred to treatment, there are sanctions if someone stops showing up or relapses, but those consequences are handled through civil procedures, and individuals are not charged with crimes.

“We accept the fundamental premise, which is that addiction is a drug-related disease,” said Krasner, who spoke to WHYY from the basement of a police compound he was about to tour in Lisbon. “It is never a particularly good idea to treat a disease as a crime or as a moral failing or as a character flaw.”

Portugal’s 18-year-old policy came in response to an addiction crisis that reached its peak in the 1990s. Its decades-long military dictatorship lasted until 1974 when a revolution opened the country’s borders and exposed Portugal’s previously isolated and relatively drug-naive citizenry to a flow of illegal drugs for the first time in several generations. By the 1990s, an estimated 1% of the Portuguese population was addicted to heroin. Officials estimate 5,000 people lived on the streets of Lisbon’s Casal Ventoso neighborhood.

By most measures, the effort to decriminalize has been a success. Rates of drug use have gone down among 15- to 24-year-olds, the age group considered to be at highest risk for it. New instances of HIV and hepatitis C are a fraction of what they were before the law. Portugal’s drug-related death rate has dropped consistently since 2001 and is now among the lowest in Europe, according to the European Monitoring Centre for Drugs and Drug Addiction. Substantially more people have started substitution treatment or MAT. The homeless population in Casal Ventoso is down to a fifth of what it was in the ’90s.

Krasner said that his mind wasn’t made up on whether a policy like that could work in Philadelphia and that the point of the trip was to gather information so he could make an informed decision. He conceded that the universal health care available in Portugal makes such a system easier to implement because addiction services are free and accessible to everyone there. He was also wary of using the 10-day supply as a one-size-fits-all approach to distinguishing between possession and intent to distribute, which would still be criminally prosecuted.

“The fact is, someone can be walking around with a small amount of drugs, but if they’ve got $4,000 in their back pocket and they have an expensive scale in their other pocket and a log book in their other pocket that appears to show multiple sales, that’s not a user,” he said.

Krasner suggested that drug quantities or weights should be used as guidelines and applied on a case-by-case basis.

But he agreed that decriminalization makes sense, regardless of the substance.

“I think addiction is addiction. I think it’s a disease, so it should apply to any drug.”

Krasner said that his office has been researching how to implement a diversion-based drug program for a while now and that this trip will contribute to his thinking. He said that at first, a strategy to reframe the criminal justice approach to addiction would probably build off systems that already exist. His office announced last year that it would not file charges for marijuana possession. Philadelphia already operates a police-assisted diversion program and the diversionary drug court, though Krasner cautioned against a new system that would adopt drug court’s practice of requiring people to give up their right to a trial in exchange for a chance to get charges dropped.

“Heaven forbid they should do what almost every single person who suffers from addiction does, they should relapse and test positive. They’re going to end up with a conviction with no trial,” he said. “It’s not that system at all.”

During his trip, Krasner and the group visited two supervised injection facilities, one in Berlin and one in a mobile van in Lisbon. Although Krasner is not involved in the plans to open such a site, he has said he will not prosecute it and said he does not believe it is illegal under Pennsylvania law.

“When you go around Europe and you see they are present in so many different countries … you realize what a sort of ordinary, unexceptional, normal thing it is,” he said.

Krasner was optimistic about public opinion in Philadelphia supporting decriminalization. He cited national polling that found the majority of Americans favor spending more on treatment and less on criminal justice.  

“I think that Philadelphia is more progressive and more sensible about criminal justice issues than most jurisdictions, so I think people will be very much in favor of it,” he said.

He said he expected to announce a policy on how to handle people caught possessing drugs in the next few months.

Ultimately, Krasner stressed, reducing stigma is key to solving the problem of addiction, since it prevents people from gaining access to housing and jobs and connecting with their families.

“It is the stigma, in fact, that kills most people,” he said. “And they die of overdoses because they die alone and they die hiding from other people.”

Attaching criminal charges to that drug use, he added, only makes matters worse.

Asked if he thought there was any way to reduce stigma without decriminalizing possession, his answer was a simple no.