It was bound to happen. The Polish Ministry of Health has decided to target ‘legal highs’ and it is doing it in the worst imaginable way. If the Ministry’s ideas are implemented in their current form, mere possession of new psychoactive substances may send people to prison for up to three years.
The new draft law on drug use prevention prepared by the Ministry of Health was announced on November 13th . It is 41 pages long and its authors promise that the new regulations will solve the problem of legal highs. I have read the draft proposal and haven’t seen any sensible suggestions.
It is not easy to grasp what the Ministry really intends to fight. Obviously legal highs, but what specifically do they mean? What – according to the drafters – is the problem that needs to be solved? “The draft law was prepared due to an urgent need to restrict the production and circulation of replacement substances and new psychoactive substances” – Ministry spokeswoman Milena Kruszewska said by email. But why do we need to restrict the trade around legal highs? We aren’t presented a direct answer other than legal highs are a cancer slowly killing Polish youth and need to be eradicated.
But what is the ‘legal high’ emergency is really about? Is it a problem that adults (children and adolescents are another matter) use psychoactive substances? The Ministry of Health would likely say that it is. But since we don’t have a problem with adults drinking alcohol, why is sniffing or smoking psychoactive substances such a cause for concern? It’s difficult to get past that hypocrisy and this is what government departments and agencies should be dealing with. From a practical point of view, it would be more sensible if they just accepted that people use these substances, and then ensured the public’s general health.
Maybe instead it is the use of new psychoactive substances (commonly known as legal highs) that constitutes the problem? That’s more likely, because they are potentially more harmful than substances we have known for years (alcohol, marijuana, cocaine, amphetamine, MDMA, etc.). The result is at best the same, but with far greater risks. What if the core of the problem is the poisoning and deaths resulting from legal high use? Bingo!
In 2015, the number of drug-related poisoning cases in Poland reached seven thousand. We are talking about cases that required medical intervention, cases where lives are immediately at risk. It’s not hard to imagine that the people who decided to call, or whose families took them to the ER, must have been going through hell. There were also those that did not make it – more than ten people per year.
Greetings from behind bars
The Ministry of Health came up with legislation that rises to meet the legal high plague. But the law doesn’t raise everyone equally. For some the change will help be a pleasant relief just a moment, before they land in handcuffs, are brought to court and locked away in prison. In short, sanctions against legal highs (production, trade and possession) are to resemble those we have for trading cocaine, marijuana or amphetamine.
Production of new psychoactive substances? Punishable by up to three years in prison for small amounts, minimum three years for significant amounts. Importing and exporting? Up to five years. Trading? Up to as much as twelve years. And the highlight of it all, or rather the last straw, is the punishment for possession: a fine, or, in case of a possession of significant amount – restriction of freedom or prison sentence of up to three years. The draft law includes a possibility to drop the case for possession of small amounts for personal use, but Poland is back to penalizing substance possession.
The new law aims to end the arms race between the State, who are constantly forced to update the number of illegal substances, and the producers, who respond been designing new legal equivalents. If the law enters into force, every substance “affecting the central nervous system” will be considered a drug.
Prisons across Poland will swell with new tenants, as if they didn’t have enough already, and legal highs will disappear from Polish streets, houses, nostrils, and lungs. At Least that must be the hope of the new law’s bakers.
Realistically, however, keeping legal highs under control will be even harder than it is now, since trading will be pushed into the black market. Let us not kid ourselves that cracking down on legal highs will eradicate legal highs as a business. Can the government name a country that has successfully eliminated drugs?
It is extremely foolish to introduce sanctions for the possession of new psychoactive substances. Let us imagine the following situation: having smoked a legal high, someone starts to feel funny and then faints. His companions consider calling an ambulance. Should they really be forced to decide if the risk of going to prison for possession of substances, which they are having on them, is worth asking for medical help?
Penalizing possession will also hit those that desperately need help the most – the people with addiction. If someone is addicted to legal highs, then they are likely to have them. In the brave new world, with zero tolerance for legal highs, these people will face fines or imprisonment. One must be truly lacking empathy to willingly punish those who are already afflicted with addiction.
If, indeed, all suggestions from the new proposal from the Ministry of Health are rubbish, then what can be done about ‘legal highs ’?
It is telling that in the justification for the draft proposal the authors refer explicitly to the experiences of Ireland and Great Britain, the two countries having uncommonly restrictive policies around old and new psychoactive substances. The result of such an approach? An increasing number of people addicted both to synthetic cannabinoids and opioids (morphine, heroin, etc.). In the draft, there is no mention of Portugal or the Czech Republic, where the legal high problem is nearly non-existent. Common sense would have us copy those faring better, not worse.
So how come Czechs and Portuguese are not succumbing to Spice? Years ago, their governments decided to de-penalize possession of all (Portugal) or most (the Czech Republic) psychoactive substances. In practice this means that in the Czech Republic and Portugal people don’t have to face strict sanctions for a few grams of marijuana, cocaine, a piece of acid-imbued paper or pills. People therefore tend to use traditional psychoactive substances that are safer than legal highs (though their use is not completely harmless either) and that are well-known to doctors and paramedics. It might be surprising, but it is easier to help someone overdosing on heroin (paramedics can use Naloxone to inhibit heroine), than a person who unconscious from to a legal high, as it is usually unclear what substance was used in the first place.
The EU will not be our saviour
Introducing a new drug law will not be the first shoddy legislative proposal produced by the Polish government. During the last two years of Law and Justice’s rule, we have been through a rampage in the old Białowieża Forest, the paralysis of the Constitutional Tribunal, and the submission of Polish courts to the politicians. Recourse to EU institutions was believed to be a final protective layer and a miraculous solution to the impotence within our own opposition. Yet so far, the EU has proved impotent in all the above-mentioned matters, even if at least it is trying to do something. In case of legal highs though, we cannot count on the EU coming to the rescue.
Even though the EU does not recommend sanctioning the possession of legal highs, on the October 24th it adopted a resolution calling on Member States to solve the problem presented by new psychoactive substances. The document includes big sections on threats, dangers, and the need for quick risk analysis. It does not include any recommendations related to the Czech or Portuguese-style de-penalization of popular psychoactive substances
The draft new law will now undergo public consultation. It will eventually be passed in one form or another, the only hope being that experts will inject some sense into the draft during consultation, and the authors will delete the sanctions for possession.
And once they understand that no one should be punished for having a few grams of psychotropics, then they will surely de-penalize possession of all psychoactive substances. The next step should be to create a threshold values table (a document that will describe in detail what ‘insignificant amount for own use’ mean for each of the substances). That would be a simple recipe for rational policy on drugs and for increasing the number of voters willing to support the government.