Jarryd Bartle

The following blog is adapted from a webinar presented as part of the Australian Government’s Cracks In the Ice toolkit, you can view the full presentation here.

Public debates about drug law reform frequently invoke the terms “decriminalisation” and “legalisation” as if they were interchangeable. Advocates and commentators alike often describe these reforms as the “gold standard” solution to drug-related harms, however on closer inspection these concepts are not only distinct but also internally diverse.

Without consistency in how we use the terms, debates regarding drug law reform risks confusion and misrepresentation, with policy responses being poorly matched to their objectives.

The following outlines the different models of ‘decriminalisation’ and ‘legalisation’ of currently illicit drugs, as well as provides a broad overview of the evidence base for different models.

Drug Decriminalisation

Decriminalisation is typically understood as the removal of criminal penalties for activities such as the use or possession of drugs for personal consumption. Under decriminalisation models, acts associated with drug use may remain unlawful, howeverthey no longer attract a criminal record or conviction.

International bodies such as the International Drug Policy Consortium and the European Monitoring Centre for Drugs and Drug Addiction emphasise that decriminalisation does not mean drugs are legal. Instead, individuals may be subject to administrative penalties such as fines, licence suspensions or mandated referrals under decriminalisation models.

It is also important to distinguish between two pathways to decriminalisation: de facto and de jure.

De facto models retain criminal laws but reduce their enforcement through diversion or discretion. Examples include cannabis cautioning schemes operating in every Australian jurisdiction. De jure models, by contrast, involve formal legal reform so that personal possession no longer constitutes a criminal offence under specified conditions. Approximately 25 jurisdictions worldwide have adopted such measures.

Along with drug decriminalisation occurring as a result of either de facto and de jure pathways, there are also notable variations in the way countries have decriminalised drugs, including the potential for civil penalties as well as the use of mandatory treatment schemes of drug dissuasion bodies.

The following outlines five distinct variations of drug decriminalisation that have been implemented and concludes with a discussion of the evidence.

The No Sanctions Model

Under this approach, individuals found in possession of small quantities of drugs for personal use face no legal penalty beyond confiscation. British Columbia has recently implemented such a model on a trial basis, exempting possession of under 2.5 grams of substances such as opioids and MDMA from criminal liability. Similar schemes exist in Chile, Colombia, and Germany. While this model eliminates the risk of criminalisation, it can generate controversy, with critics fearing it may “normalise” use. Nevertheless, proponents highlight its potential to reduce stigma and encourage voluntary access to health services.

The Civil or Administrative Sanction Only Model

A more common model retains an administrative penalty, such as a fine, but avoids criminal prosecution. South Australia and the Northern Territory operate cannabis expiation schemes: individuals caught with small amounts of cannabis pay a civil fine, with no criminal record if payment is made. This model reduces the long-term harms of criminalisation but can still disproportionately impact marginalised populations unable to pay fines, raising questions about fairness and equity.

The Civil or Administrative Sanction with Referral Model

A modified version of the above provides individuals the choice of paying a fine or participating in health, education, or social services. Oregon’s 2021 reforms (which have since been overturned), allowed people caught with controlled substances to waive civil penalties by completing a brief health screening over the phone.

The Australian Capital Territory has adopted a similar scheme. Advocates argue that this model encourages engagement with support services without coercion, while critics note that uptake of referrals can be low if supports are underfunded or poorly coordinated.

The Mandatory Treatment Model

Some countries have taken a more coercive route, requiring mandatory treatment as a condition of avoiding criminal sanction. In Mexico, possession of drugs for personal use initially triggers voluntary referral to treatment, but repeated offences make treatment compulsory. Costa Rica also employs involuntary treatment pathways. While these models aim to ensure engagement with health services, concerns arise about human rights, treatment quality, and the risk that coerced participation undermines therapeutic effectiveness.

The Drug Dissuasion Body Model

Portugal’s reform in 2001 remains the most well-known example of this approach. People caught with drugs are referred to a “Commission for the Dissuasion of Drug Addiction,” consisting of health professionals, social workers, and legal representatives. The Commission can recommend no sanction, issue an administrative fine, or direct the individual to health and social services. Evaluations show that most cases result in no penalty, and the system has been credited with reducing criminal justice burdens while promoting treatment. However, its success relies heavily on robust investment in harm reduction and treatment infrastructure.

Where is the evidence?

The empirical support for drug decriminalisation, particularly for different models of drug decriminalisation remains limited.

Scheim et al (2020) in their systematic review of impact evaluations of drug decriminalisation across English speaking countries found that research was centred on two models.

The vast majority (>91%) of impact evaluations were in relation to the decriminalisation and/or legalisation of cannabis (either a no sanction or civil or administration sanction model), with a heavy focus on the United States.

Further, in regard to decriminalisation of all drugs, the majority of studies looked at the Portugal dissuasion body model (although much research was not published in peer reviewed journals).

It’s important therefore for advocates and researchers to be clear regarding what model of drug decriminalisation they support, and to demonstrate a degree of humility regarding the evidence based for proposed reforms.

Drug Legalisation

The term ‘legalisation’ generally refers to steps taken beyond decriminalisation of currently illicit drugs and the establishment of regulated market for substances that were previously prohibited. It requires reform not only of possession laws but also of cultivation, manufacture, and supply.

The overwhelming focus of contemporary legalisation debates has been cannabis, though discussions increasingly include substances such as psilocybin and MDMA.

The following outlines three distinct variations of drug legalisation that have been implemented and concludes with a discussion of the evidence.

The Home Grow Model

The home grow model refers to a pathway of cannabis legalisation which allows the small scale cultivation, possession and use of cannabis plant, but does not allow larger scale commercialisation.

Jurisdictions including the ACT, Luxembourg, Malta and Germany all allow adults to cultivate a limited number of plants for personal use. Going further, Uruguay and Malta have also introduced “cannabis social clubs,” where groups collectively grow and share cannabis among members.

These models reduce reliance on illicit markets but can be criticised for limited oversight and potential diversion to unregulated trade.

The Pharmacy Model

Consistent with a ‘health based’ approach to drug law reform, some jurisdictions have focused on supply through licensed pharmacists as a method of legalisation.

Uruguay pioneered a state-regulated pharmacy model, where cannabis is cultivated under government control and distributed through licensed pharmacies. This system aims to reduce black market influence while maintaining public health safeguards. However, critics argue that restricting supply to pharmacies can create bottlenecks or deter users who prefer less formal purchasing environments.

The global towards allow the prescription and use of cannabis for medicinal purposes can be seen as a form of pharmacy based legalisation. As can heroin-assisted therapy in Switzerland, Germany and Denmark, which allow individuals with severe dependency to access pharmaceutical-grade heroin via a prescription, administered under supervision.

The Retail Model

A retail model to drug legalisation, common in the United States and Canada in relation to cannabis legalisation, treats a legalised substance as a regulated good, much like alcohol or tobacco.

Under most cannabis retail models, licensed outlets sell a range of products, including edibles, concentrates, and infused beverages, subject to age restrictions and packaging requirements.

This model has spurred significant commercial innovation but also raised concerns about over-commercialisation, increased potency products and targeted marketing.

Where is the evidence?

Much like drug decriminalisation, evidence regarding drug legalisation is focused almost entirely on cannabis legalisation in the United States.

Farrelly et al (2023) in their systematic review of the impact of recreational cannabis legalisation in the US documented ‘mixed findings’ regarding health impacts, including increased young adult use, cannabis-related healthcare visits and impaired driving. There does not appear to have been an increase in teenage cannabis usage following retail legalisation of cannabis. However, despite hopes that legalisation would lead to significant declines in the black market purchase and sale of cannabis, black markets persist.

Given mixed evidence regarding US-based retail legalisation models, further research is required into home grow and pharmacy models to see if they present a more favourable alternative.

Choose Your Language Carefully!

As can be seen from the discussion above, what constitutes the “decriminalisation” or “legalisation” of currently illicit drugs can vary widely depending on the model involved.

For this reason, it is preferable to frame discussion in terms of specific models rather than catch-all categories. Identifying whether a jurisdiction employs a no-sanction, civil penalty, referral, mandatory treatment, or dissuasion approach clarifies what is actually at stake. Similarly, distinguishing between home-grow, pharmacy, and retail legalisation models provides a more accurate basis for comparison and evaluation.