The Standing Committee on Social Affairs in the Swedish Parliament in February 2020 unanimously decided to demand an inquiry into the drug policy by the government. That such an announcement could be put forward at all is a result of the government parties not being in the majority in the Parliament, and the demand therefore became a decision by the Parliament. The committee, in its report, emphasized evaluation, treatment, harm reduction and a zero-tolerance vision for drug-related deaths (Socialutskottet 2019/20). The Minister of Social Affairs from the Social Democrats and the Social Democrats in Parliament, however, opposed an evaluation of the criminalization of consumption. An evaluation plan has still, more than one year after the announcement from the Parliament, not been presented. All in all, however, there has been a clear change in the debate on drug policy in the political parties during just a few years.

Finally, and hypothetically, a liberalization of the drug policy might have unintended consequences. Not only has the drug policy followed the general trend towards law and order, as was pointed out above, but it has also taken the lead in this development. Means of coercion and a pro-active Police have been justified with reference to the drug menace. The use of the whole penalty scale in sentencing for drug crimes has become a point of reference for politicians criticizing the courts for staying in the lower end of that scale. The general move towards expressive justifications of penal legislation has become a forerunner in drug legislation. The claimed organized crime behind drugs is now said to characterize almost every type of crime (Tham 2012).

Could reversing the punitive trend in drug policy then be expected to influence criminal policy in general? A return to the rule of law, proportionality and *ultima ratio* as principles of criminal legislation in drug cases could have effects in general. A reduction in the length of prison sentences for drug crimes would markedly lower the prison population. The recognition that more than half of those in prison are judged to be drug-abusers with a particularly difficult background could perhaps restore the insight of the typical prisoner as being socially disadvantaged, and not just a villain who refuses to take responsibility for himself and his acts.

This line of argument could then again be an obstacle to changes. Taking drug policy seriously means facing questions regarding classic principles of law, the right to privacy and self-determination, the roots of marginalization and social exclusion, and the costs of penal control. The years to come will show if Sweden is prepared for such a turn in criminal policy.

## **References**

2/2018. https://www.bra.se/download/18.10aae67f160e3eba 6292b7e9/1520581863937/2018\_Narkotikaanvandning\_och \_misstankar\_om\_eget\_bruk\_bland\_ungdomar\_i\_Stockholm.pdf.

sets/89b85401ed204484832fb1808cad6012/rk\_21164\_broschyr \_narkotika\_a4\_en\_3\_tillg.pdf.

## **PART II SPECIFIC ISSUES**

## **7. Gang Talk and Strategic Moralisations in Danish Drug Policy Discourses on Young and Recreational Drug Users**

*Thomas Friis Søgaard & Frank Søgaard Nielsen*

## **Introduction**

While Canada, Uruguay and several US states have legalised cannabis in recent years, and many European countries have implemented or are considering decriminalisation as an option, Denmark is one of the few Western countries that seems to be going in the opposite direction, away from a lenient decriminalisation policy and towards a more restrictive approach (Moeller 2020). In 2004, Denmark introduced a new drug policy that marked the end of a 35-year period during which possession of illicit drugs had been depenalised, meaning that although it was illegal to possess drugs, in most cases the police refrained from bringing charges for possession for personal use (Frank 2008). In government white papers and in political discourse, the novel and more restrictive approach was called a zero-tolerance policy on drugs, and it was accompanied by a legislative change, which meant that possession of illicit drugs should now always be punished with at least a fine, except in certain specific cases (Houborg 2010). Research has documented how this shift in drug policy was underpinned by a change in governmental rationalities from a 'welfarist' to a more 'neo-liberal/conservative' rationality (Houborg & Bjerge 2011), and by discursive changes in the way young people, youth culture and drugs were problematised in government reports, policy documents and in the public media (Houborg 2008, 2010; Houborg, Søgaard & Mogensen 2020). Until the early 1990s,

#### **How to cite this book chapter:**

Søgaard, Thomas Friis and Nielsen, Frank Søgaard. Gang Talk and Strategic Moralisations in Danish Drug Policy Discourses on Young and Recreational Drug Users. In: *Retreat or Entrenchment? Drug Policies in the Nordic Countries at a Crossroads*, edited by Henrik Tham, 161–181. Stockholm: Stockholm University Press, 2021. DOI: https://doi.org/10.16993/bbo.g. License: CC BY 4.0.

youth drug use was largely framed as a social problem and seen as a symptom of structural social problems, but from the early 2000s it became increasingly associated with nightlife revelling and was depicted as a result of deviant consumer choices (Houborg 2010). Houborg, Søgaard and Mogensen (2020) thus argue that the repenalisation of drug use in Denmark was intimately coupled with a discursive reconstitution of the young drug user in neo-liberal (autonomous, rational, self-responsible) and neo-conservative (morally compromised) terms.

In this chapter, we wish to build on and add to this previous research on drug policy changes and associated discursive 'framings' (Rein & Schön 1993) of the youth drug use 'problem' in Denmark. It has been well documented how the discursive framing of youth drug use as a deviant consumer choice set within the context of a particular risk environment – i.e. nightlife – became the catalyst for more restrictive policies in Denmark during the early 2000s. In this chapter, however, we analyse the emergence of a new discursive and politically potent framing of youth and recreational drug use. More specifically, we describe how recent years have seen a shift in Danish drug control policy debates, whereby young and recreational drug users are no longer merely framed as *consumers* of drugs and as wilful lawbreakers but increasingly also as *customers* in a criminal market, and hence as the market basis for organised crime.

We argue that this policy discourse, depicting young drug users as customers feeding a criminal market, involves a novel 'strategic moralisation' (O'Malley 1999) in which young drug users are now framed as morally deviant customers, who, through their purchasing of illegal commodities (drugs), are complicit in, and hence partially responsible for, organised drug-related crime. The shift in policy discourses about young drug users – from wilful lawbreakers to accomplices in organised drug crime – has not led to legal changes. However, we describe how this novel framing of the issue of youth drug use has been used as a lever for the development of intensified police campaigns specifically targeting drug users and led to the emergence of disciplinary discourses urging drug users to become responsible citizens who, by saying no to drugs, also say no to organised crime. Though reformers have also drawn on the framing of drug users as complicit in organised crime to argue for the necessity of 'peace-time' resolutions to the fight against drugs, it remains the case that the discursive coupling of drug use/rs and organised crime has mainly functioned to push Denmark in a more restrictive direction.

In the analysis, we draw on existing research, key government reports, policy papers and content analysis of media accounts of policy and policing developments. The government reports and policy papers were retrieved from open public and ministerial homepages. Media searches have been made in the database Infomedia, which contains all national and local newspapers. Searches have been made especially for drug policy, drugs, youth culture, law enforcement, organised crime, gangs and Christiania from 2000 to 2020. Media accounts and policy documents have been subjected to content analyses (Braun & Clarke 2006).

## **Analytical Framework**

Theoretically, we draw inspiration from critical policy analysis, holding that policies are not straightforward responses to objective problems but rather are active in the creation and shaping of those problems as particular types. More specifically, we draw on Rein and Schön (1993), who argue that policy actors construct and make sense of problematic policy issues through a process of discursive framing defined as 'a way of selecting, organising, interpreting, and making sense of a complex reality to provide guideposts for knowing, analysing, persuading, and acting' (Rein & Schön 1993:146). Within this framework, the complementary processes of naming and framing not only define what is problematic about an issue, but also suggest what course of action and policies would be appropriate to address the 'problem' (Duke & Kolind 2020). As Houborg, Søgaard and Mogensen (2020) argue, 'problematisations' of young people, youth culture and drugs have been, and remain, central to much drug policy and practice, but the way they are framed has differed over the years, in turn giving rise to different policies and interventions. Based on existing research, the following two sections outline how the youth drug 'problem' was framed prior to and during the early 2000s.

## **Youth Drug Use as a Social Problem**

Modern Danish drug policy was born in 1955 with the Law on Euphoria-Inducing Substances. The law made possession of illegal drugs for personal consumption an offence (Winsløw 1984). In connection with the promulgation of the law, policy-makers stated that penalisation of possession was not meant to criminalise users. Rather, the law was only meant to be a shortcut to criminalise possession with the intent to deal (Houborg, Bjerge & Frank 2008). During the 1960s, new drugs and new groups of users started to appear as part of the youth counter-culture and, as a result, drug use among young people became a very important public issue and policy problem (Houborg & Vammen 2012). In the 1960s, 1970s and 1980s drug use among young people was largely framed as a social problem. During this period, youth drug use was associated with an alternative youth culture that rebelled against established institutions, and with socially disadvantaged living conditions for certain segments of the population (Houborg 2008). The discursive framing of youth drug use as primarily a symptom of various underlying social causes became the foundation of a drug policy that took drug use to be a normal social problem, and one therefore best addressed through social policies and social expertise, including drug prevention and treatment. The aim of this drug policy was to tackle the causes of the problem and to integrate users into society (Houborg 2010).

The framing of drug use as a social problem also came to influence Danish criminal justice policy on drugs. In 1968, the Danish government proposed an increase in the legal sentencing for professional drug trafficking and drug dealing. Representatives from the police and the public prosecutor were among the strongest supporters of increased criminalisation of professional drug traders. They argued that since Denmark had lower sentences for drug offences than neighbouring Norway and Sweden, international professional drug traders were likely to be attracted to the Danish drug market (Houborg & Vammen 2012). To prevent this, supporters argued, a legal correspondence between the Nordic countries was needed (Storgaard 2000). Critics, on the other hand, were concerned that increased criminalisation of professional drug traders would have a spillover effect on the sentencing of minor drug offences, which would lead to increased criminalisation and alienation of drug users (Storgaard 2000). Critics also argued that increased sentences for professional drug trading were likely to be counterproductive, in that they would result in rising retail-level prices on cannabis, which would in turn make the Danish cannabis market even more attractive to professional criminals. According to critics, the best way to prevent organised crime was to legalise access to cannabis, as this would make the cannabis market less economically attractive to professional criminals (Houborg & Vammen 2012). In June 1969, the parliament reached a compromise. While deciding to amend the Penal Code (§191), increasing the penalty for professional drug dealing and trafficking, a majority of the parliament wanted to avoid further criminalisation of the large number of young people experimenting with drugs, particularly cannabis (Houborg 2010). The parliamentary majority therefore made it a condition of the passing of the Bill that the Attorney General would instruct the police and prosecutors not to charge drug users for possession of illegal drugs for personal use. Such cases should instead be settled with an administrative or court caution (Frank 2008; Houborg, Bjerge & Frank 2008; Houborg 2010). For drugs other than cannabis, this applied only to first time offences, while for cannabis it also applied to repeat offences. The instruction thus created a de facto decriminalisation of possession of illicit drugs for personal use. In this way, a dual track policy was enacted which not only distinguished between cannabis and other drugs, but which also distinguished between drug suppliers and drug users (Storgaard 2000). While the former were framed as criminals, and therefore to be dealt with via law enforcement, the latter were framed as social clients, whose use of illicit drugs was better addressed through welfare means such as treatment, education, social services and prevention (Houborg, Bjerge & Frank 2008).

## **The Young Drug User as a Rational Consumer and Wilful Lawbreaker**

Due to the depenalisation of possession of drugs for personal use, Danish drug policy was for many years considered relatively liberal by international and Nordic standards (Storgaard 2000). During the early 2000s, however, this began to change. As with the drug policy reform during the 1960s that led to depenalisation, it was drug use among young people, and the discursive framing of this as a particular kind of 'problem', that in 2004 led to a repenalisation of drug possession for personal use (Houborg, Søgaard & Mogensen 2020).

Debates on drug policy in Denmark in the late 1990s and early 2000s were characterised by intensive discussions about the role of alcohol and drugs in youth culture (Houborg 2010). The background for this was the publication of comparative survey studies showing that young Danes consumed more alcohol than young people in other European countries, and were among the group of young Europeans with the highest prevalence of cannabis use (Houborg, Søgaard & Mogensen 2020). This new concern about youth drug use was heightened by intensive media reports about young people's excessive use of ecstasy in nightlife. According to Houborg (2010), two very influential reports – one by the National Board of Health and one by the Chiefs of Police – came to play a key role in a re-framing of the youth drug 'problem' during the early 2000s. Rather than depicting youth drug use as a symptom of social problems and societal changes, and users as subjects in need of help, the two reports instead represented youth drug use as a problem rooted in flawed consumer choices and a lack of moral respect for the law.

The report by the National Board of Health (2000) concluded that a more liberal attitude towards illegal drugs had developed among young people generally, which meant that drug use was becoming an integral part of a new youth culture, especially the urban nightlife party scene. The discursive framing of youth drug use as indicative of a new 'culture of intoxication' (Measham & Brain 2005) was also evident in the report by the Chiefs of Police (2002). This report described the emergence of new youth culture characterised by individualisation, event culture, party culture, intoxication, experimentation and anomie. As outlined by Houborg (2010), the report by the Chiefs of Police not only depicted young drug users as economically resourceful (deviant) consumers in a nightlife leisure scene, but also attributed this new drug problem to the policy of depenalisation that had been in force since 1969, which had allegedly led many young people to believe that use of illegal drugs was not prohibited.

On the basis of this discursive framing, the centre-right government, which had come to power in 2001, formulated a new policy programme in 2003 under the headline 'The Fight against Drugs' (Government 2003a). The policy programme was indicative of a broader shift away from welfarism and explanations that emphasised social determination and towards neoliberalism and neo-conservatism. It articulated the idea that young people's use of drugs was rooted in a new culture of intoxication and essentially a matter of individual consumer choices (Houborg, Søgaard & Mogensen 2020). Within this policy discourse, young drug users were thus framed as rational and autonomous consumers who deliberately chose to break the law. Against this background, the white paper emphasised that it was important to send a 'clear signal' to young drug users that this kind of behaviour was unacceptable and would have legal consequences. Couched in the rhetoric of 'zero tolerance', 'deterrence' and 'respect for the law' (Frank 2008; Houborg, Søgaard & Mogensen 2020), the new drug policy led to a legislative amendment in 2004 that reintroduced penalties for all personal possession of illicit drugs. The government hoped that the repenalisation of possession for personal use would deter young consumers from exercising their freedom in an irresponsible and deviant way, and instead foster a new moral order characterised by respect for the law (Houborg 2010). The shift towards an understanding of young drug users as individualised and rational consumers was also evident in subsequent parliamentary debates, which in 2007 led to an increase of the fines for possession of illicit drugs. On this issue, Karsten Nonbo from the liberal government party Venstre said: 'We are tightening the penalty for possession of euphoric drugs.

The neo-conservative framing of youth drug use as a consumer- and choice-based moral failure has played a key role in the production of young recreational drug users as objects of a zero-tolerance governance approach in Denmark.

## **The Drug User as an Indirect Accomplice in Organised Crime**

While the early 2000s saw a move towards a neoliberal and more moralistic point of view, where the use of illicit drugs was explained in terms of consumer-based wilful transgressions in a new kind of risk environment (i.e. nightlife), during the mid and late 2000s a new discursive framing of youth drug use started to gain prominence. In the following, we outline how recent Danish drug control policy debates have become increasingly dominated by a discursive framing that depicts young and recreational drug users as complicit in organised crime. Linked to this shift is a new moral configuration of young drug users, as well as the deployment of police campaigns specifically aimed at targeting young and recreational drug users.

The present day discursive framing of young and recreational drug users as complicit in organised crime is part of a longer process. In 1982, the Copenhagen Police Department released a report describing how outlaw bikers were involved in the cannabis market in the Free Town of Christiania, Copenhagen (Copenhagen Police 1982). Based on their observations at Christiania, the police gave voice to the perspective that the selling of cannabis was becoming more professionally organised, and that drug trading was the key economic basis of outlaw biker groups. These ideas gained prominence in public debates during the 1990s, especially during and after the 'Big Nordic Biker War' (Strand 2011). In 2003, when the centre-right government launched its new drug policy, The Fight against Drugs, it highlighted criminalisation and intensified policing as the best ways to combat cannabis-related organised crime. As part of its new tough-on-drugs policy, the government made the dissolution of the cannabis trade in Christiania – the biggest open drug market in Scandinavia – a key priority (Government 2003a). In the policy paper, the government repeated the argument that close links existed between the cannabis trade at Christiania and organised crime. The Government also emphasised that intensified policing was important as a means of combatting the organised crime groups believed to be responsible for the cannabis trade at Christiania. The policy paper, and a later action plan (Government 2003b), specified that the intensified police approach would involve 1) an increased police presence, with more raids, drug seizures and arrests of sellers and backers, and 2) a physical removal of sales stalls in Pusher street, the main cannabis sales area at Christiania. Furthermore, the action plan stated 3) that the police should increase their targeting of 'the recipients' of cannabis (i.e., the users) at Christiania, as this would make it more difficult for drug traders to sell their commodities (Government 2003b:8999). The action plan outlined that the latter process should involve increased use of stop and search methods, sniffer dogs and traffic stops to check if potential customers going to or coming from Christiania were in possession of cannabis or driving under the influence of cannabis.

In the media, the Minister of Justice, Lene Espersen, explained that the police had been instructed to actively target the 'buyers' frequenting Pusher street in Christiania because this would 'result in a situation where the buyers will no longer find it attractive to go to Christiania to source hash' (Berlingske Tidende 2003a). Similar to the debates about young peoples' use of ecstasy and cocaine in nightlife, the Minister of Justice thus invoked a notion of the cannabis user as a rational actor who could be deterred into conformity. However, rather than describing the rational cannabis user as a *consumer*, as had been the case in debates regarding the much talked about new youth nightlife culture, in policy documents and in the debates addressing the situation at Christiania, cannabis users were now described as 'recipients of cannabis', 'buyers' and 'customers', and as the 'customer-base' for criminals (Berlingske Tidende 2003a; DR.DK 2003; Jyllands-Posten 2003a). This change of vocabulary was indicative of the gradual emergence of a new dominant discourse in which drug users were increasingly framed as market actors, whose 'demand' for drugs constituted the economic basis for the criminal drug trade: 'Hash customers – all the more or less ordinary and decent people, including tourists, who are the basis for Pusher street's existence – can look forward to a more tough police approach' (Berlingske Tidende 2003b).

While Danish drug policy had traditionally rested on a dual track policy that distinguished between drug suppliers and drug users (Storgaard 2000), the new policy discourse not only dissolved this distinction, but also framed drug users, in their capacity as economic customers, as (indirectly) complicit in drug-related organised crime. The emerging framing of youth and recreational drug use as the economic driver underpinning criminal drug trading was not only evident in discursive reconfigurations of 'drug users' into 'drug buyers' and 'drug use' into 'drug demand'. It was also evident in the fact that the tough-oncrime rhetoric, such as the terms 'to stress' and 'stress strategies', which had hitherto been used to describe the 'pulling lever tactics' (Kennedy 1997) used by Danish police to make life difficult for outlaw bikers, gangs and drug sellers (Volquartzen 2009; Strand 2011; Rowe & Søgaard 2020), was now also being used by police to describe their approach to cannabis users at Christiania: 'Now we have been stressing the sellers and the buyers for some time. We will continue doing so, but at some point, we will take it to the next level. We will come in hard and demolish Pusher street when it suits us' (Copenhagen Police Chief Inspector in Jyllands-Posten, 2003a).

In the months following the launch of the government's new Christiania strategy, the police intensified their targeting of drug users frequenting the cannabis market at Christiania. As part of the new buyer-directed 'stress strategy' (Berlingske Tidende 2003c), in the first month, the police searched 459 persons and 2448 cars. Two hundred and forty-eight persons were fined for being in possession of illegal substances, and 557 were fined for traffic violations in and around the Christiania area (Jyllands-Posten 2003b). In 2004, the police launched a major crackdown, during which bulldozers and armed police entered Christiania and removed the stalls where cannabis was being sold. Fifty cannabis dealers and 'security guards' were arrested (Frank 2008; Moeller 2018). While the police had hoped that this crackdown would effectively put an end to the Christiania cannabis market, history has shown that this was not the case.

Over the following years, however, the discursive framing of young and recreational drug users as the economic basis for criminal and organised drug trading grew in prominence. Not only did this discursive framing spread beyond the Copenhagen context, it also came to include other drug users, such as recreational users of cocaine, ecstasy and amphetamine. This development was part of a broader process where policies and police approaches that were originally developed to target the specific cannabis market at Christiania spread to other areas and domains. As an example of this, Moeller (2020) has documented how, since 2003 – the year the government launched its first Fight against Drugs-policy (Government 2003a) – there has been a remarkable quantitative increase in the enforcement intensity of the Law on Euphoria-Inducing Substances. While the period between 2004 and 2010 was characterised by a quantitative increase in enforcement intensity, stemming mostly from crackdowns on cannabis retail sales in Copenhagen, from 2011 to 2017 police districts outside of Copenhagen came to drive the overall increase. This development coincided with the launch of the government's second drug action plan in 2010 – The Fight against Drugs II (Government 2010). While this action plan emphasised the importance of maintaining and increasing the intensity of drug law enforcement against possession offences and against organised drug trading, it no longer contained references to the specific cannabis market in Copenhagen (Moeller 2020). Across the different police districts in Denmark, the average increase in reported Law on Euphoria-Inducing Substances offences rose by 42% from 2007 to 2017, with some provincial police districts, such as Mid- and West Sealand Police, and North Jutland Police, registering increases of 127% and 122% respectively (Moeller 2020).

Both in Copenhagen and elsewhere, police have often drawn on discourses that frame young and recreational drug users as the economic basis for organised drug trading to publicly justify their intensified targeting of drug users:

We target those who want to buy hash, because we want to combat the criminal backers, by making it unsafe for their buyers, which means that they lose their customer base.

(Head of Task Force Pusher Street in DR.DK 2012)

[We target people who buy cannabis and other drugs from mobile dealers] because we want to get to the root of the problem. When there are buyers, there will also be sellers, and while the police make a great effort to combat the organised drug trade, it is a fundamental problem that there is still a demand.

(Police Commissioner in Mid- and West Jutland Police 2019)

## **A New Moral Configuration of the Drug User**

The intensified policing of drug users as a means of combatting organised crime has been coupled with a new moral configuration of young and recreational drug users. During the 2000s, many Danish cities experienced a growth in gang conflicts and shootings, resulting in an intensified media focus on the linkages between drugs and organised crime (Houborg & Enghoff 2018). In this climate of heightened public concern about gang-related crime and violence, Danish police became strong public promoters of a moralistic discourse, in which young and recreational users of cannabis and other drugs were blamed for the ongoing gang conflicts. As illustrated in the above, drug users are sometimes identified as the 'root of the [gang] problem'. In 2011, for instance, the Chief of Danish Police, Jens Henrik Højbjerg, made a public appeal in which he emphasised that the authorities could not by themselves combat the crime and violence committed by outlaw bikers and gangs. Ordinary Danes also needed to take responsibility.

If we all showed responsibility and didn't allow ourselves [to] be tempted, things would be very different (…). Citizens should stop buying stolen goods, and they should not buy amphetamine or cocaine on a night out at the weekend (…). Think about what kind of people you are supporting when buying stolen goods or drugs.

(TV2 Lorry 2011)

In recent years, the morally condemnatory tone and the argument that 'if you *choose* to buy illegal drugs you *support* criminal gangs' have recurred consistently in public statements by the police, as the following quotes illustrate:

Those who buy hash at Pusher street support organised crime and thereby the criminals, who repeatedly defend their crime with violence against the police.

(Chief Police Inspector, Copenhagen Police, in DR.DK 2018)

People just need to realise that when you buy hard drugs, ultimately you are underpinning organised crime in one way or the other.

(Police Inspector, Mid- and West Jutland Police, in TV Midtvest.dk 2019)

By buying hash from these people you are underpinning the gangs in Esbjerg, and thereby also the continuation of the gang conflict. (Vice Police Inspector, South Jutland Police, JydskeVestkysten 2020)

While leading politicians and the police have been the key moral entrepreneurs promoting condemnatory discourses that attribute responsibility for gang criminality and violence onto drug users, such discourses are today also replicated in the broader media, sometimes under headlines such as 'Hash-smokers support gangs' (B.T. 2009) or 'The coke-sniffing upper class has a responsibility for gang crime' (Information 2019). In such accounts, young and middle- and upper-class drug users are sometimes depicted as hypocrites who care much about how their actions impact on the climate but little about how their drug habits supposedly feed gang violence (see Information 2019).

The above illustrates how recent drug control policy debates in Denmark have involved a strategic mobilisation of morality (O'Malley 1999) encapsulated in a discourse where the young and recreational drug user is reconfigured from a consumer and wilful law-breaker to a customer and indirect accomplice in organised drug crime and related violence. Hence, drug use is no longer framed merely as an individualised moral failure to comply with the law, but increasingly also as a moral failure to be a responsible citizen. From this perspective, drug use is not seen as a victimless crime. Rather, it is represented as a key driver of gang-related violence. By implication, drug users are depicted as hedonistic and selfish people who 'support' criminals and who do not care about how their practices are indirectly exposing others to risks – i.e., the potential victims of drug-related violence. Moralisation against drug users is thus deliberately mobilised not only to justify police use of user-directed punitive approaches, but also as a governmental strategy to 'responsibilise' (Garland 1996) young and middle-class people. This is carried out by communicating the message that apparently harmless drug use has dire consequences for others in the drug supply chain, and that, as moral citizens, would-be users therefore ought to demonstrate a societal responsibility and care for the wellbeing of others by choosing to abstain from buying illicit drugs.

## **Gang Talk and Cannabis Legalisation**

In Denmark, the discursive framing of young and recreational drug users as the economic basis for criminal drug trading has predominantly been used to promote user-centred punitive approaches. In the following, however, we briefly outline how this framing has also been used in recent years by reformers to argue for the necessity of a legalised cannabis market.

While the early 2000s was characterised by relative political consensus, both at municipal and national levels, about the usefulness of a punitive zero-tolerance approach, 2009 marked a turning point in cannabis policy debates (Houborg & Enghoff 2018). During 2008 and 2009, the gang-related violence in Copenhagen reached a peak, and its effects on the lives of ordinary citizens were widely reported by the media. As part of his campaign for the 2009 municipal election, the incumbent mayor of Copenhagen, Frank Jensen, from the Social Democrats, therefore proposed introducing a three-year trial period where all cannabis users above 18 years of age should be legally able to purchase cannabis from shops in Copenhagen run by the state (Politiken 2009). The Liberal-Conservative government, however, immediately rejected the proposal. Nevertheless, from 2009 onwards, references to the gang conflicts have been central in political discussions about cannabis and the possibilities for legalisation (Houborg & Enghoff 2018). Representatives of the Copenhagen municipality have played a key role in these debates. As outlined by Nygaard-Christensen and Frank (2019), in January 2017, the Social Democrats in Copenhagen argued for a legalisation trial by suggesting that legalisation would 'remove some of the economy of the criminal gangs who today profit from cannabis being illegal'. This line of argument has also been adopted by national politicians. In 2016, the parliamentary party Radikale Venstre noted the following in their proposal for a trial legalisation of cannabis:

The illegal cannabis sale at Christiania and elsewhere is controlled by organized criminals and gangs (…). Therefore, it is necessary to rethink and explore the possibilities for a responsible and controlled way of legalizing cannabis, so that cannabis sale does not continue to remain a lucrative business for organized criminals.

(Quoted in Nygaard-Christensen & Frank 2019:6)

As outlined earlier, in the policy debates that in 1969 led to an increase in the legal sentencing for professional drug trading, critics had warned that increased criminalisation was likely to result in rising retail-level prices on cannabis, thereby fertilising the ground for a growth in organised drug trading (Houborg & Vammen 2012). In the 2010s, reformers argued that the turn towards more punitive policies, both in 1969 and especially after 2004, had indeed come to act as a criminogenic driver resulting in increased gang activities. Coming full circle, reformers today argue that legalisation of cannabis is the only way to prevent the continuous popular demand for cannabis, and its economic revenue, ending up in the hands of organised criminals. Importantly, advocates arguing for the need for cannabis policy reform have not challenged the discursive framing of drug users as market customers whose purchasing practices feed organised crime. On the contrary, their argument for cannabis legalisation seems to reinforce this discourse. The solution reformers point to, however, is very different from the punitive one that dominates today. While the cannabis reform movement has gained momentum, in the Danish parliament there is still an overwhelming majority opposed to legalisation or decriminalisation (Nygaard-Christensen & Frank 2019).

## **Conclusion**

In this chapter, we have outlined how changes in Danish drug control policy have been underpinned by discursive changes in the way youth and recreational drug use is framed in government reports, policy documents and the media. While previous studies have described how the discursive framing of youth drug use as a deviant consumer choice set within a nightlife context became a catalyst for more restrictive policies in Denmark during the early 2000s (Houborg 2008; Houborg 2010; Houborg, Søgaard & Mogensen 2020), in this chapter we have analysed how recent decades have seen the emergence of a new discursive and politically potent framing of youth and recreational drug use as feeding organised crime. While this discursive shift has not led to legal changes, it has functioned as the foundation for an increase in the intensity of drug law enforcement, often used specifically to target and 'stress' drug users. Within this new discourse, intensified police targeting of drug users is justified as a means of combatting organised crime, and young and recreational drug users are morally configured as selfish persons who allegedly do not care about how their drug habits feed gang conflicts and thus expose others to risk and harm. In this way, recent years have seen an intensification of the moral condemnation of young drug users in Denmark.

Similar tendencies today characterise drug policy debates in countries such as England and Sweden. In England, the National Crime Agency launched a campaign in 2015 entitled '#everylinecounts', which aimed to raise awareness among middle-class individuals about how their seemingly harmless drug use had dire consequences for others in the drug supply chain, for local communities and for the environment (National Crime Agency 2015). The campaign not only attributed blame for the harm done by the drug trade onto users, it also sought to responsibilise young and recreational users through slogans such as 'Your choices can change everything'. In the UK, this discourse has been promoted by government representatives and leading politicians. In 2018, the Mayor of London, Sadiq Khan (The Guardian 2018a), the most senior UK police chief, Cressida Dick (The Guardian 2018b), and the British Justice Secretary, David Gauke (Independent 2018), all publicly argued that individuals who consume cocaine at dinner parties are to blame for street violence in cities across the UK. More recently, UK politicians and the media have also singled out middle-class cocaine users, often depicted as selfish individuals who lead privileged lives, as the key people responsible for the emergence of highly exploitative criminal county-line supply models (Spicer 2021). In a similar vein, Swedish Prime Minister Stefan Löfven recently argued that middle-class drug users in the more affluent parts of Swedish cities are partly to blame for the gang-related violence in the more marginalised neighbourhoods (Expressen 2019).

The above illustrates how recent drug control policy debates in Denmark mirror developments in some other European countries, where 'gang-talk' has taken centre stage in arguments for more punitive approaches (see Spicer 2021). However, a notable difference exists. While the framing of drug users as complicit in gang crime in the UK has mainly focused on cocaine users, in Denmark (and in Sweden) today, this framing also dominates discourses about cannabis users. So, while Canada, Uruguay and several US states have legalised cannabis, and many European countries have implemented or are considering decriminalisation of cannabis as an option, Denmark is one of the few Western countries that is going in the opposite direction, away from a lenient decriminalisation policy and towards a more restrictive approach (Houborg, Søgaard & Mogensen 2020; Moeller 2020). As demonstrated in this chapter, discursive linkages between cannabis use/rs and concerns about organised crime have played a key role in this process.

As our analysis has shown, Danish police have, at times, described the intensified policing of drug buyers as a way to address the 'root' of the drug market problem. Contrary to this, Spicer (2021) has argued that contemporary discourses allocating blame and responsibility for the harms of the drug trade onto drug users represents a form of surface scapegoating that functions to divert attention away from the underlying structural and social conditions that drive drug markets. In Denmark, it remains the case that most street gangs are composed of socio-economically marginalised men (Pedersen 2014), and that men of lower socioeconomic status are also the primary users of cannabis (Bloomfield, Elmeland & Villumsen 2013) and the demographic most likely to be targeted by police for possession of illegal drugs (Houborg, Kammersgaard & Pedersen 2016). Yet, in Danish drug control policy debates on young peoples' use of drugs, socio-economic factors and issues related to social marginalisation are increasingly silenced, and instead replaced by a focus on morality and individualised choices.

### **References**

## **8. Drug Control as an Exception in a Humane and Rational Criminal Policy in Finland**

*Heini Kainulainen & Pekka Hakkarainen*

## **Three Stages of the Modern Finnish Criminal Policy**

Following the criminological analysis of David Garland (2001), three different stages in the development of Finnish criminal policy can be identified: mitigation of repression, the punitive turn and conflicting policies. In this chapter, we will scrutinize how these general trends of criminal policy are reflected in the development of drug control policy.

We will begin our examination from the 1960s, when the conditions for humane and rational criminal policy were laid out in Finland. The motivation behind such a policy was to temper the role of the criminal justice system in the resolving of societal issues. From this perspective, the issue of drugs is seen as an anomaly; it has been termed a paradox, since anti-drug measures have been primarily repressive.

In the 1990s, the criminal policy took a punitive turn, which could be partly attributed to increased concerns about organized and international drug-related crime. Governments clamped down and stringent measures were implemented not only in drug control but also within the criminal justice system in general.

Thirdly, it can be concluded from Garland's analysis that the concept of conflicting policies describes the current system rather well: the punitive turn has *not* become predominant since measures intended to reduce or mitigate the role of the criminal justice

#### **How to cite this book chapter:**

Kainulainen, Heini and Hakkarainen, Pekka. Drug Control as an Exception in a Humane and Rational Criminal Policy in Finland. In: *Retreat or Entrenchment? Drug Policies in the Nordic Countries at a Crossroads*, edited by Henrik Tham, 183–210. Stockholm: Stockholm University Press, 2021. DOI: https://doi.org/10.16993/bbo.h. License: CC BY 4.0.

system have also been implemented.54 However, we will show in this chapter that such reductions or mitigation have barely had any effect for drug offenders. We will explore how the special role approach reserved for drugs has been evident in a strong reliance on the criminal justice system and, in particular, the directing of strict control over those who use drugs.

## **Towards a Humane and Rational Criminal Policy during the 1960s and 1970s**

During the 1960s, a lively debate began in Finland over control policy. The debate drew attention to how the exercise of power in society resulted in the isolation of marginalized groups of people for extended periods of time without guarantees of due process (Eriksson 1967). This debate questioned the use of a punitive penal system. In the Nordic context, one of the most vocal critics was Nils Christie (1968), who pointed out that the rate of imprisonment in Finland was many times higher than in the other Nordic countries.

The debate over criminal policy was ideologically linked to the emergence of a welfare state that sought an equitable allocation of costs and benefits. This approach formed the basis for a humane and rational criminal policy that sought to minimize the suffering and other costs of crime, and of the control of crime, and to allocate these costs fairly among the various stakeholders (Lahti 1972; Lappi-Seppälä 2001; Törnudd 1996: 33–36).

The aim of humane and rational criminal policy was to reduce repression and to use criminal law as sparingly as possible in the management of social problems (Anttila 1967; Lång 1966). In the spirit of a welfare state ideology, particular attention was paid to vulnerable members of society and services provided by social policy were to be enhanced (Lappi-Seppälä 2007). This was also considered a priority within the framework of the tools of criminal

<sup>54</sup> Similar developments have been found in various Western and Nordic countries, but their manifestation, intensity and timing tend to vary, see e.g. Lappi-Seppälä 1998; Lappi-Seppälä 2016; Snacken & Dumortier 2012; Tham 2019; Tonry 1998; Ugelvik & Dullum 2012; Victor 1995. For critique on Garland's analysis, see e.g. Matthews 2002.

policy. The slogan, 'Good social policy is the best criminal policy' expresses the essence of this approach (Kinnunen 2008: 69). The criminal justice system is not the only or even the most important system for controlling crime. Better results can be achieved by reducing social marginalization and welfare inequalities (Lappi-Seppälä 2001: 107–109; Joutsen, Lahti & Pölönen 2001.)

One of the concrete objectives of a humane and rational criminal policy was to reduce the number in the prison population, which had proven to be high in comparison to the other Nordic countries. In this spirit, a fundamental reform of legislation began in the 1970s. The scaling back of the use of imprisonment was widely accepted in legal praxis, and the prison population began to decline. Compared to the 1950s, the number of Finnish prisoners decreased almost by one half during the 1970s, and by the end of the 1980s the prison population had fallen to the same level as in the other Nordic countries (Lappi-Seppälä 2016: 18, 26).

From an international perspective, achieving such a change is exceptional. Tapio Lappi-Seppälä (2001) has found several different explanations behind the change. One explanatory factor he has suggested is that, at the time, criminal policy was not of general political interest in Finland, and instead the debate was expert-driven. Many of those who criticized the repressiveness of control policy played important roles in society during the 1970s and were actively involved in the liberalization of the legislation on criminal justice and the system of sanctions (Lappi-Seppälä 2007). It was also at this time that a reform was undertaken of the outdated criminal law, which had originally been drafted in the 1800s. It is very clear from the report of the Committee on Criminal Law (1976) that the *ultima ratio* principle on which criminal law was built was taken seriously, and the intent was that the use of criminal law was to be the last resort. The purpose of the overall reform of the Criminal Code was to provide a critical assessment of the content of all penal provisions, seek to reduce the number of criminalizations and reduce the penalties for them (Anttila & Törnudd 1992; Lahti 2017.) From this point of view, the drug issue can be seen as an exception. This has been called the paradox of Finnish criminal policy (Kinnunen 2008), which still remains unsolved.

### **Total Ban on Drugs**

The special way in which drugs were dealt with had a long history. When the first wave of drugs washed over Finland (among other Western countries) in the 1960s, new legislation was passed to combat the situation. When the 1972 Narcotics Act was enacted, the need to criminalize the production, trafficking and distribution of drugs was widely recognized, while the question of whether or not drug use should be criminalized became a matter of controversy. The Single Convention on Narcotic Drugs of 1961 did not require parties to make drug use a punishable offence; rather it encouraged treatment and care.

At various stages in the drafting process, views were expressed both for and against the criminalization of use. Following a series of very close votes, in 1972 it was finally decided to criminalize the use of drugs (Hakkarainen 1992; Hakkarainen 1997: 131– 150; Kainulainen 2009: 42–59; see also chapter Hakkarainen & Kainulainen in this book). It was recognized that the criminalization of use would cause harms, and in order to avoid these, the police, prosecutors and judges were encouraged to apply the provisions on the waiving of measures so that users would not be punished for their personal consumption. In spite of the recommendations to interpret the legislation thus – with a heavy focus on depenalization55 – waiving the measures was rare throughout the 1970s and 1980s (Kainulainen 2009: 62–65, 73–82).

The Narcotics Act showcased a repressive stance towards the issue of drugs, which was further enhanced by the strictness of its implementation. The end of 1960s saw the police force improving its skills to the effect that it could detect drug-related crimes that would have been otherwise left uncovered. Drug crime investigation became a special branch, new investigation methods were adopted through foreign influence, undercover operations were attempted, interrogation skills were developed and good relationships were established with the actors working in the illegal markets. The increased number of drug offences in the statistics was the reason why the police was allocated more

<sup>55</sup> Depenalization means that the use of drugs remains a criminal offence but punishment is, in practice, no longer imposed.

human resources and equipment to drug units (Kainulainen 2009; Kainulainen, Savonen & Rönkä 2017; Kontula 1986). However, the number of drug offences was pretty small when looking at recorded crime as a whole.

When the 1972 Narcotics Act was enacted, some experts in criminal law had opposed the criminalization of drug use. Since drug use was criminalized despite this opposition, a few experts continued to raise the issue. Recommendations were presented on how the provisions on the waiving of measures should be applied, but they had little effect on enforcement praxis. For example, within the practices of the police and prosecutors, it was de facto a dead letter (Kainulainen 2009: 73–82).

From the 1980s there was increasing criticism in the legal literature. The criticism was directed in particular against the way in which the Narcotics Act was applied. What faced criticism in the literature alongside strict user control was the way criminal responsibility was established in cases of more aggravated crimes pertaining to drug distribution. Some criminal law experts were also concerned with the possibility that criminal liability was being extended too far with respect to drug offences. The case-law seemed to be consistently producing cases in which exceptions were made to the general doctrine of criminal law, and the principles limiting criminal liability in general were compromised on the grounds of the 'special nature' of drug crime (Lahti 1985; Träskman 1995; Utriainen & Hakonen 1985). The question was also raised whether quite heavy sentences were being imposed on defendants for drug offences with a very low threshold of evidence. When a person was convicted of a drug offence, the quantity of drugs involved was generally not determined by what had been found in his or her possession but on what his or her accomplices had said about the quantity of drugs that he or she had handled (Kainulainen 2007: 49; Kainulainen, Savonen & Rönkä 2017: 137–139; Kontula 1986: 235).56

<sup>56</sup> From this point of view, it can be noted that during the 1990s, after the police were gradually permitted to use a variety of undercover policing methods (like phone tapping), the evidence pertaining to the quantity of drugs has diversified and the legal protection of defendants has, to some extent, improved.

The way in which drugs were being controlled was also criticized in criminological studies that dealt with police, prosecutorial or court practice. The police played quite an active part on the drug front. Drug users were observed, arrested and brought before courts for punishment (Kainulainen, Savonen & Rönkä 2017). Attention was paid to the intensity of the use of coercive measures in criminal proceedings, for example in the form of the very long periods that individuals could be held under arrest (Kontula 1986: 57; Träskman 1986: 22–23). Indeed, it was only after Finland acceded to the European Convention on Human Rights in 1989 that the maximum period of arrest was shortened. During the 1970s and 1980s drug users could be held under arrest for up to 17 days, but in practice it could be even longer before a court ruled on whether or not the suspect could be held in pre-trial detention (Heinonen 1989: 76–79; Kainulainen, Savonen & Rönkä 2017: 126–129).

Furthermore, in addition to the fine imposed on the drug offender, he or she was ordered to pay the state for the value of the drugs that the offender had used. This practice was not abolished until the criminal law was amended in 1992. The purpose of the Narcotics Act was to concentrate crime control around the distributors, who were seen to represent professional and organized crime. However, the research of police practices shows that for decades the police control has focused on catching drug users (Kainulainen 2009; Kinnunen 2008; Kontula 1986). Interviews of those who had been apprehended for using drugs showed that they objected to the prohibition on drug use and stated that being the subject of control had had many negative consequences. Indeed, there was an accumulation of official and unofficial sanctions, which easily initiated a process of exclusion that was difficult to reverse (Heinonen 1989; Kainulainen, Savonen & Rönkä 2017).

### **A Punitive Turn: The Tightening of Control in the 1990s**

Like in many other Western countries, the Finnish criminal policy remained fairly moderate during the 1980s, but the 1990s brought a shift in the debate on criminal policy.57 The ideological

<sup>57</sup> The punitive turn seems to be similar in Western societies, but when analyzing more closely, differences between countries can also be found (see

basis of the welfare state began to crumble due to the economic depression in the 1990s. The criticism stated that welfare states increase problems rather than solve them, and that such states are too expensive, inefficient and passivating. Also as part of the discussion, the starting points for humane and rational criminal policy began to be undermined (Lappi-Seppälä 1998).

One way in which this policy was undermined was criticism of the fact that the participants in the debate on criminal policy had been limited to a small and influential group of experts who shared one another's views. For example, some right-wing politicians were vocal in airing their views in the media on the need to tighten control. Their demands received some political weight and support, which was reflected in more punitive amendments to the Criminal Code. One example of this was that the statutory definitions of violent offences were made more punitive and the accompanying penal latitudes were raised, which was soon reflected in an increase in the number of prisoners (Lappi-Seppälä 2007; Lappi-Seppälä 2012; Lappi-Seppälä 2016).

When the repression was being mitigated in the 1970s and 1980s, drug-related crimes received wide coverage in the press and generally sparked public interest, but they were *not* at the centre of criminal policy decision-making. The number of cases and 'drug convicts' was relatively low compared to other types of crime, such as property crimes or drink driving. For example, the report of the Committee on Criminal Law (1976) contains only a few scattered references to drugs. Achieving the main goal of criminal policy, which was the reduction of the prison population, was to be done by focusing, above all else, on those offenders who were filling the prisons, such as those who had been convicted of property offences.

However, in the debate on criminal policy, the focus was now turned to the drug issue from another angle, since the control of drugs appeared to have an impact on the choice of tools used in other areas of criminal policy. One of the drivers of this debate was 'Den gode fiende', the book written by Christie and Bruun (1985) that was published in Finnish in 1986. In their critical analysis, the authors highlighted how drug-related crime had been

Garland 2001; Hermansson 2019; Pratt 2007; Tham 2019; Victor 1995; von Hofer & Tham 2013).

at the forefront as the grip of the mechanisms of control had been strengthened and the range of measures used by the control authorities had been expanded (see also Träskman 2004).

In an article published by Per Ole Träskman in the joint Nordic book, 'Varning för straff' ('Beware of Punishment'), he uses the term 'dragon's egg' to illustrate the phenomenon identified by Christie and Bruun. According to Träskman (1995), organized drug crime was used as the rationale for injecting elements into the criminal justice system that were foreign to the Finnish legal system and that seriously jeopardized the legal protection of suspects. Pressure was soon exerted to expand the scope of these elements to other types of offences. In the end, according to Träskman, the control of drugs has had a significant impact on the entire criminal justice system and on the punitive turn in this system (Träskman 1995; Träskman 2003; Träskman 2004).

The police took an active role in defining the nature of illegal drug markets, which further consolidated the linkage between drugs and criminal activity. The review of law enforcement authorities painted the picture of professional, organized and international drug crime, which in turn called for an increase in the coercive measures available for use. Consequently, the police were given a set of new undercover policing methods, like cellphone surveillance, bugging, undercover operations, pretended drug purchases, use of data sources and controlled delivery.

After the mid 1990s, the prisoner rate in Finland, which had remained low, began to grow again. This was the result of stricter policies, starting with drug offences and later including violent offences. The change could be seen not only in the growth of the number of prisoners convicted of drug offences and violent offences, but also in the longer length of sentences given (Lappi-Seppälä 2012). According to Lappi-Seppälä, this was a clear consequence of the punitive turn, which had led to a tightening of control (Lappi-Seppälä 2001; Lappi-Seppälä 2007). However, the increase in the number of prisoners convicted of drug offences is also explained by changes in the drug market.

The significance of drugs in the criminal justice system also increased due to the considerable changes that took place in

the amount and nature of drug crime. This was influenced by a second wave of drug use (Partanen & Metso, 1999; Partanen 2002), which resulted in an expanded drug market. This, in turn, could be seen in an increase in the supply of drugs, the emergence of new drugs on the market, and a strong increase in the demand for drugs. According to the police, drug-related criminality in the 1990s began also to have more common features with organized crime, and its connections to international criminality deepened. The changed drug situation was soon reflected in the criminal justice system. The number of drug offences recorded in the statistics increased. The number of seizures multiplied, as did the quantity of drugs seized. The movement of large quantities of new substances classified as dangerous, such as ecstasy and buprenorphine products (generally, Subutex), which was later used in drug substitution treatment, was reflected in the penal system. The number of prisoners serving sentences for drug offences increased, and they were being sentenced to very long terms of imprisonment (Kainulainen 2007).

### **Drug Control Remains Strict**

The penal provisions on drug offences were reformed at the beginning of the 1990s as part of a comprehensive reform of the penal code. The 1988 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances also played a part in improving international cooperation to combat illegal drug sales. It required the extension of criminal responsibility to facilitate the access to the factors that uphold the drug industry. One of the key aims was the prevention of money laundering.

In terms of drug use, there was no strong attempt to carry out a critical assessment of the justifications for the criminalization of the use of drugs. The main debate at the time was over what would be the appropriate penal latitude for the use of drugs. The Working Group on Drug Offences, chaired by Träskman, proposed a petty form of the basic offence – a drug infraction punishable only with a fine. The Minister of Justice was concerned that such an approach would convey the wrong message – that the control of drugs was being eased – which would, in turn, tempt young people to become new users of drugs and would bring in more people as drug dealers. Also, members of Parliament joined in the debate. In the total reform of criminal law, offences were generally set out on three levels of seriousness, with a petty form, a basic form and an aggravated form, however a different approach was adopted with respect to drugs. The use of drugs remained part of the basic drug offence, for which the penal latitude continued to range from a fine to imprisonment for two years. However, the rationale for the possibility of the waiving of measures was regarded as so strong that a special provision on this was taken into the criminal law. The intention was that measures would be waived more often, particularly in cases where a drug user sought treatment, but also in other petty cases of drug use. Thus, depenalization now received strong support by penal code (Kainulainen 2009: 95–122; Kainulainen 2017).

This time there was a change in the application of law, and prosecutors began to decide much more frequently to waive measures in the case of drug offences. The increasing use of the waiving of measures prompted lively debate. Some deemed it a good way to prevent the exclusion of drug users, in particular of young people, while others were concerned about the blurring of the line between what is allowed and what is prohibited. The Finnish Prosecutor's Association proposed to the Ministry of Justice that a petty form of the offence be incorporated into the Criminal Code. Since this would have a narrower penal latitude, offences involving the use of drugs could be dealt with through summary penal proceedings (Kainulainen 2001; Kainulainen 2009: 134–137; Kainulainen 2017).

Indeed, the provisions criminalizing the use of drugs were amended at the beginning of the 2000s, but this reform did not call into question the need for criminalization. Nonetheless, an approach based on fundamental and human rights had increasingly gained ground in the debate on criminal law, even though this was not reflected in the formal opinions given by criminal law scholars on the use of drugs as an offence. It is possible that a form of *Realpolitik* thinking may have been behind this approach. Although some experts might well have opposed the criminalization of the use of drugs, they did not raise the issue because they did not believe that this view would have prevailed in political decision-making.

Setting the use of drugs apart from the basic drug offence, as a petty form of the offence, is in itself a positive development. Under pressure from the police, the penal latitude was set as a fine or imprisonment of up to six months, so that the police retained the right to carry out searches of the premises of people suspected of drug use. From a criminal law perspective, the severity of the penal latitude should be based on the reproachful nature of the conduct in question, and not on the needs of the police. However, the amendment of the law to provide for a separate, petty offence of drug use led to a tightening of the penal system, with the good start that had been made towards a shift to the wider use of the waiving of sanctions quickly ending (Kainulainen 2009: 359–360; Kainulainen 2017.)

Hence, following the amendment of the law to provide for a separate offence of drug use, the penal system was tightened. The simplification of the procedure for imposing fines has led to the police imposing a fine for drug use in a rather schematic manner. Following the amendment, it has been very rare that measures have been waived. When the amendment was enacted, the authorities were encouraged to waive measures, particularly for two groups of people. The Office of the Prosecutor General and the National Police Board jointly drafted guidelines for the implementation of this position, and the guidelines have recently been revised (VKS 2018: 2). Young people who were apprehended experimenting with or using drugs should be cautioned rather than fined. Problem drug users should be encouraged to seek treatment, in which case they would not be fined. Studies of enforcement practices have shown that various arrangements for cautioning minors have been organized in different municipalities and in general they have not been fined. On the other hand, the diversion of adult problem drug users to treatment has not succeeded and, consequently, the number of such decisions to waive measures has remained very small (Kainulainen 2009: 346–380).

For decades, the police have considered it important to tackle drug use. This is also stated in recent instructions to the police: 'In order to maintain both general and special deterrence, it is important that the police intervene in all cases of drug use and that these also be recorded as criminal offences known to the police' (PO-2018-49612). These same instructions refer to the possibility for the police to decide to waive measures. A caution by the police is considered sufficient for very petty incidents of drug use involving the possession of a small quantity of drugs or where the drugs have been used only at home. The police do not publish statistics on the number of cautions it has issued. According to police, such decisions are rarely made, even if suitable cases for the waiving of measures can be found among drug offences. Indeed, since the 1960s, the police have been reluctant to waive measures for drug use (Kainulainen 2001; Kainulainen 2009; Kainulainen 2017).

## **Indicators of the Control of Drugs**

Drug offences are graded according to three different degrees of severity, according to the seriousness of the offence. Drug offences involve the illegal production of drugs, import, export, transport, distribution and possession of drugs. The sanctions are a fine or a maximum of two years imprisonment. The drug offence is aggravated if it involves very dangerous drugs or a big quantity of them, if substantial financial profit is sought, the offender acts as part of organized group, the offence causes severe danger to the health or life of several people, or the drugs are distributed to minors or otherwise in un unscrupulous manner. The penalty is imprisonment from one to ten years. In the reform of 2001, the new prerequisites were introduced for petty drug offences. It includes the use of drugs and the possession of drugs or attempt to acquire minor quantities for own use. The least severe drug offence, the use of drugs, may be punished with a fine or a maximum of six months imprisonment. In addition to this, the Penal Code contains penal sanctions for the preparation and promotion of drug offences (see Penal Code 50:1–4).

Recorded drug offences increased steeply during the 1990s, and the increase has continued. Figure 18 shows that the majority of drug offences recorded by the police continue to involve drug use. In recent years, the police have recorded around

**Figure 18.** Recorded drug offences (unlawful use of drugs; drug offence; aggravated drug offence; other) in Finland, 2001–2019. Source: Statistics Finland (1).

30,000 drug offences, of which about 20,000 have been drug use. This means that more than half of the drug offences recorded by the police have involved drug use. The punishment has usually been a fine imposed by the police. Very few decisions have been taken to waive measures.

Since the 1960s, police have kept statistics on the number of drug seizures they have made and on the quantities of various drugs seized. Data on drug seizures (see Table 16) can be used to form a picture of changes in the drug market, such as the availability of different drugs or fluctuations in the amounts. However, the reliability of a timeline analysis is undermined by the lack of statistics on the potency of the drugs that have been seized. For example, if one year the amphetamine found on the market was typically low-grade, but in the following year very strong amphetamine was seized, this information is not revealed by the statistics, and the data on amphetamine seizures from one year to the next cannot be compared.

In the Finnish drug market cannabis has been the most commonly seized by the law enforcement agencies. Also, amphetamine and methamphetamine, ecstasy and buprenorphine-based opioid substitution medications (especially Subutex®) are common, whereas heroin and cocaine are rarer, although this seems to be changing.

Very little statistical information is available on coercive measures used by the police. In addition, the police do not keep statis-

**Table 16.** Quantities of seized drugs in Finland, 2015–2019.

Source: Police.

**Table 17.** Drug offenders\* apprehended, arrested and remanded in Finland, 2016–2020.

(\*) unlawful use of drugs, drug offence, aggravated drug offence and other drug offences.

Source: Statistics Finland (2).

tics on whether they only stop drug users on the street and seek to determine whether or not they have drugs in their possession. It is only if a person is brought to a police station and he or she, or his or her clothes, are searched in order to detect drugs that there is usually a record of the apprehension. The number of persons apprehended, arrested and remanded for trial each year can be seen in Table 17. In 2020, a total of 3200 apprehensions were made. The number of arrests was 1,900 and remands 500. In traffic, the examinations to detect drug use have increased markedly. From 2013 to 2020 the number of examinations increased from 4,500 to 12,000.

The police publish selected data on their use of undercover policing methods, such as interception of telecommunications or

**Figure 19.** Prisoners in Finland, 2011, 2013, 2015, 2017, 2019 (100 %) (principal offence of sentenced prisoners). Source: Criminal Sanctions Agency.

technical surveillance. An annual report on the use of covert coercive measures is prepared for the Parliamentary Ombudsman. According to these reports, very many of these cases have involved the investigation of drug offences. According to the assessment of the police themselves, the use of covert coercive measures has been very useful in the detection of drug offences. The police are not at all forthcoming on their covert activity and the use of pseudo-purchases. They also do not report on their covert collection of intelligence.

During the 1990s, the number of prisoners serving a sentence for a drug offence as their main offence began to increase (see Figure 19). In 2019, 20 per cent of prisoners had been convicted of a drug offence as their main offence (N = 464). The number of all sentenced prisoners was 2260. Of the prisoners with a foreign background, almost one half had been convicted of a drug offence. The conversion of unpaid fines into imprisonment was reduced by a reform implemented in Finland in 2008. However, the law is once again being tightened and the trend is reverting to what it was before. No statistics are available on what offences had led to the original unpaid fine, which was subsequently converted into imprisonment. Nonetheless, it can be presumed that some of the offenders serving a sentence of imprisonment for unpaid fines had been guilty only of drug use.

Surveys of the health of prisoners show that a significant proportion of them suffer from alcohol and drug problems (Obstbaum-Federley 2017). From the mid 1990s there was a relatively rapid change in Finnish prison services and rehabilitation programs were introduced. As the number of drug-using inmates continued to rise, as did the number of inmates sentenced for drug offences, there was a strong need to establish drug treatment programs in prisons (Kainulainen, Kinnunen & Kouvonen 2001). The programs reflect a dual-track policy in which drug-using inmates are seen either as criminals who are to be punished and controlled more harshly, or as rehabilitating drug users who are entitled to welfare services (Kolind et al. 2013). The substance control of prisons has been intensified significantly in recent years. In addition, measures related to training, information, rehabilitation and health care have been implemented.

Statistics do not necessarily provide information on the intensity of the control of drugs. From this point of view, studies that examine those involved in control are of interest. There have been a few studies on the drug police. There have also been a few studies that have contacted those who have been the subject of control. For decades, the police have attached great importance to intervening in the behavior of drug users. In addition, the police have rather intensively monitored those people that they have identified as being of interest (Kainulainen 2009; Kainulainen, Savonen & Rönkä 2017; Kinnunen 2003). This explains, in part, how the police are able to apprehend drug users, as does the fact that some of those involved in the illegal drug market are quite active in the commission of many different types of offences. However, the criminal justice system has succeeded rather poorly in responding to the needs of those who are caught in a cycle of drugs and crime.

## **The Failure to Lower the Level of Repression in Respect of Drugs**

With respect to drugs, it has proven to be difficult to launch a debate that would provide a critical assessment of drug control and its consequences, as well as alternatives to the use of the penal system and criminal law. Träskman (2004) has pointed out that while the prevailing severe control of drugs and its harmful effects have indeed been criticized, it has not had a positive influence in the development of criminal policy, since politicians have not been convinced of the need for mitigation. On the contrary, for a long time, the trend has been towards a tightening of control rather than a relaxation of it. In addition, international models and the need for amendment of the law in line with EU requirements have typically been referred to precisely when a tightening of controls has been desired.

During the 1990s, when a general debate arose that emphasized fundamental and human rights, it would have been a good opportunity for criticism of the control of drugs and, in particular, for easing the prohibition on the use of drugs. Fundamental and human rights were no longer just an internal constitutional issue. Instead, human rights thinking pervaded all areas of law, including criminal law (Melander 2008; Pirjatanniemi 2011). When examined from the point of view of fundamental and human rights, it would have been very difficult to justify, for example, a prohibition on the personal use of drugs.

Amnesty International has examined drug control and prohibition from the human rights perspective, and came to the conclusion that the current repressive control has been inefficient, leading to numerous violations of human rights. On a global scale, the violations include capital punishment; the coercive use of arms; and corruption and repeated questionable actions by the law enforcement that have been either unlawful or 'in the grey area', leading to the neglect of legal protection. The vulnerable people in society are typically those who resort to drug use and suffer from it. However, the current repressive control does not focus on seeing to their social rights or right to health, but rather exacerbates the issues through stigmatization, alienation and marginalization of users (Amnesty 2019).

The criminal justice system can be developed not only by amending legislation, but also by changing the way in which the law is interpreted or applied. For example, the Supreme Court has sought to reduce the sentences imposed on persons who had been apprehended in the smuggling of drugs on the grounds that they had not been responsible for the planning of the drug trafficking (Supreme Court precedents 2017:9; 2018:45; 2020:45). However, the Supreme Court has upheld a strict attitude towards the penalization of drug use – the scope for waiving of measures has been narrowed to a great extent (Supreme Court precedents 2002:111; 2003:62).

## **Conflicting Policies in the 21st Century**

Garland (2001) states that one of the characteristics of the current state of affairs is that, after the punitive turn, there has been no unified vision of criminal policy. Societies have conformed to high levels of criminal activity and the public sector no longer strives to solely prevent crime. Today, we simultaneously resort to numerous different criminal policy measures that are based on very different ideological starting points – even at odds with one another.

Nordic criminal policy has been characterized as extraordinary, since it has remained humane and rational in spite of the punitive requirements (Pratt 2008a; 2008b). The Nordic penal exceptionalism has gained admiration in international discussion, but it has also engendered criticism, according to which such exceptionalism does not exist. The tone of the discussion varies based on which countries are used as points of comparison, what kinds of questions are being asked and to whom the message of the current state of criminal policy is directed. Moreover, when the focus is placed on the target of the repression, more aspects are revealed that are open to criticism. For example, the UN Committee against Torture has drawn the Nordic countries', and especially Finland's, attention to the large amount of time individuals spend on remand and the harsh circumstances at the police station cells (Barker 2013; Ugelvik & Dullum 2012). Minors are rarely found in Finnish prisons, but the number of out-of-home placements has been on the increase.

Lappi-Seppälä argues that various structural and cultural factors can be found behind the moderate criminal policy. The question is about a constant commitment to the Nordic welfare state, which aims for solid safety nets and an even distribution of income. Citizens and the government trust each other, and politics strives for consensus rather than conflict (Lappi-Seppälä 2007). Although there have been signs of a chilling of the criminal policy climate in Finland, it should be noted that the debate in Finland does not seem to be as emotional or politicized as it is in many Anglo-Saxon countries, or even in Sweden (Hermansson 2019). This has been reflected in the program of many political parties and in the criminal policy initiatives of politicians, which have not sought to appeal to the general public through populist crackdowns (Boucht 2020; Häkkinen 2020; Kainulainen, Honkatukia & Niemi 2021; Lappi-Seppälä 2012; Lappi-Seppälä 2016).

The general public, in turn, does not seem to be getting very heated about crime. This can be seen, for example, in a recent study of public attitudes towards punishment, according to which the respondents would, in general, have imposed sentences that were even lighter than the prevailing sentencing practice (Balvik et al. 2015; Kääriäinen 2017). Many respondents also welcomed the idea of developing treatment-oriented alternatives to prison for offenders with substance abuse problems. The general debate on criminal policy in recent years seems to have focused on certain limited crime themes, such as offences committed by immigrants, in particular, sexual offences. On these issues, the tone of the debate has become sharper.

Using Garland's idea on conflicting policies we can point out that the punitive turn has manifested itself as strict continuous amendments to the Criminal Code: the scope of penal provisions has been broadened and the sentence scale heightened.  The number in the Finnish prison population began to rise at the turn of the millennium, but it levelled off shortly after and has since reduced. Lappi-Seppälä sees that this is partly due to the development of the sanctions system, which has been on par with the approach of humane and rational criminal policy. When the Criminal Code has been made more severe, the common reaction has been to mitigate the sanctions system. According to Lappi-Seppälä, in many cases, changes and innovations in the system of sanctions functioned as a safety valve, easing the pressure created by politically motivated reforms in the realm of criminalization (Lappi-Seppälä 2007: 219, 2016: 31).

Indeed, in the penal system, legal experts have actively begun to seek alternatives to imprisonment. Community service was the first such alternative to be introduced, followed by the juvenile penalty for young offenders, and the most recent reform that introduced a form of supervision as punishment, which offenders serve in their own home. Intensive abuse of substances or drugs, or homelessness, can be a bar to community service or supervision. Thus, the relaxation of the penal system in recent decades has not been to the benefit of vulnerable persons who have been apprehended for drug offences.

The more lenient approach in the system of sanctions is also represented by the use of mediation in the case of less serious offences; successful mediation usually results in a decision to waive prosecution. Mediation is not possible at all in the case of drug offences because there is no victim in the offence who would be the other party to the mediation. Some years ago, plea bargaining was introduced in an attempt to reduce the expenses incurred by the criminal process, whereby the perpetrator could participate in defining the proceedings he or she is prosecuted in, which would mitigate the punishment. Plea bargaining is applied only in more serious charges; however, the bargaining is not applicable to aggravated narcotics offences.

The number of imprisoned drug addicts is considerable. The Imprisonment Act, which was introduced in 2006, placed an emphasis on drawing up an individual sentence plan. The number of rehabilitation programs in prison has been increased, but their implementation has been met with many problems, for example, not all drug addicts are recognized or are deemed to profit from such programs (Obstbaum-Federley 2017). The programs also rarely accept those on remand, convicts serving short sentences and those who are serving a conversion sentence due to unpaid fines in prison.

## **Discussion**

New participants have entered the debate of criminal policy, and the debate has become more diverse. This is also reflected in drug policy. The 'role' of drugs is being redefined internationally, which can be seen particularly with regard to cannabis. The need to control the distribution of drugs is generally agreed on in the EU, which in turn has strengthened international cooperation. However, the member states are not in full agreement as to the view towards the use and users of drugs. Some states emphasize the role of penal control, others the need to weaken adverse effects. However, several member states have depenalized the use of drugs, which ensures that punishments are not necessarily included in the political agenda: it is understood that there are ways to apply the criminal legislation and simultaneously employ mitigation and leniency in the proceedings (Chatwin 2011; Hughes & Stevens 2010).

The drug control policy in Finland has been built on the criminal justice system ever since the 1960s. Compromises have been made to the principles of humane and rationale criminal policy. The penal provisions regarding drug-related crimes have been broadened, more efficient drug control has been enforced and the application of Criminal Code has been extremely stringent. When the sentence scale was narrowed down in an amendment pertaining to drug abuse, the penal practices were, in turn, made stricter. Even though mitigation has been employed within the criminal justice system (e.g. with mediation and plea bargaining) and alternatives have been devised for imprisonment, those convicted of drug-related crimes have hardly been able to benefit from these changes. The number of such convicts has been on the increase in prisons, and generally the number of addicted people has been shooting up. It has been noted that these people usually come from poorer circumstances than those who end up applying for non-prison rehabilitation services. Bringing rehabilitative elements into the practical life of prisons is not simple, however, and hitherto there has not been enough political will in Finland to adopt, for example, the contract treatment (kontraktsvård) model used in Sweden.

From the perspective of humane criminal policy, the use of the penal system should not be discriminatory. Regardless, penal control has been concentrated on drug users who are in vulnerable positions. Some of these people are constantly involved in criminal proceedings, both because of their drug use and because of other crimes. The dominant repressive system of control has an adverse effect on drug users. A ban on drug use can make it more difficult to get help, support or treatment, as well as remain in treatment when the relapses during a normal treatment process are defined as criminal. Mistrust, control and sanctions can easily make their way into the common practices of drug user rehabilitation. The current ban on drug use has numerous adverse consequences, and it makes it more difficult for drug users to act as full members of society. Now would be a good time to assess the necessity and fairness of the ban, and to set the wheels in motion to achieve a decriminalization reform. Concurrently, there is a need to fully assess the content, expenses and effects of the current repressive drug control system.

## **References**

## **9. Street Users in Drug Policy: On the Underestimated Role of Welfare Institutions**

*Nicolay B. Johansen*

## **Introduction**

A wind of liberalization has been manifest in drug policy for decades, while the political establishment has stubbornly refused to give in with regards to the penal regime. But how would liberalization change the situation for drug users in Norway? In this chapter, I argue that a reform decriminalizing drug use would not alter the major structure of the controlling environment for street users.

In 2018 the Conservative government announced that they had prepared a 'drug-reform', and in late 2019 a committee gave their white paper on how to decriminalize minor drug violations. In 2021, the process again stops short of any significant reform on the political level. Penalization of any association with illegal drugs has been a cornerstone in Norwegian drug policies and one of the most important legal resources for policing for decades, as is broadly the case in the other Nordic countries. In Nordic criminological circles there has been a widespread consensus that a move away from the penal regime is long overdue (Christie & Bruun 1996; Houborg, Asmussen & Bjerge 2008; Ólafsdóttir 2001). This chapter argues that criminology has been too focussed on the penal aspects of current drug policy. Expectations for political improvements of a decriminalization reform overlook the fact that it is the welfare state, in all of its institutional forms, that define the conditions of drug users. I make the claim that

#### **How to cite this book chapter:**

Johansen, Nicolay B. Street Users in Drug Policy: On the Underestimated Role of Welfare Institutions. In: *Retreat or Entrenchment? Drug Policies in the Nordic Countries at a Crossroads*, edited by Henrik Tham, 211–237. Stockholm: Stockholm University Press, 2021. DOI: https://doi.org/10.16993 /bbo.i. License: CC BY 4.0.

the proposition to decriminalize possession of minor amounts of illegal drugs will not alter the situation for street-level drug users. I will not discuss consequences of such a reform on prophylactic activities regarding younger people.

In the next section I present a review of recent changes in drug policy. I open up with a broader view of what drug policy is, and then provide a more precise conception of the welfare state: the state 'takes care' of its citizens. The development of drug-related deaths indicates that the obligation to *take care* is not taken as literally as in other political areas. A fundamental example is found in the area of knowledge production, which forms the basis of political activities. Whereas the state takes a keen interest in the health of the population at large, the equivalent interest in the health of drug users is conspicuously absent. To make sense of the divide between drug policy and other areas of the welfare state, I highlight an understanding of the welfare state as an 'institution of curtailment'. A brief overview of drug treatment is offered in the last section to exemplify how the welfare state is both a provider and an executioner in contemporary drug policy. This example is based on the experience of a user and also serves as a substitute for the gap left by the research community. The absence of more knowledge about these aspects of drug treatment reveals that the research community is more or less completely absorbed in the prevailing knowledge regime (Campbell & Pedersen 2014) defined by the perspectives of the treatment sector. To prepare this argument, however, it is necessary to explain why the term 'drug policies' is sometimes used in plural tense and attend to the shortcomings for understanding this political field.

## **Theorizing Drug Policies**

The argument presented here does not rely on a specific method, other than putting pieces together in a somewhat unfamiliar way. The target of the argument is understanding – my contribution is not to add data to a hypothesis. Thus, this chapter concerns the *sphere of discovery*, and not *the sphere of justification* in Swedbergs terms (Swedberg 2014; see also Johansen 2018b). I argue that drug policy needs to be theorized, again with Swedberg, with a more profound understanding of the welfare state. Thus, the story to which I refer towards the end of the argument is an example, illuminating the questions and experiences omitted in the research community. It should not be considered as data.

Theorizing implies a focus on concepts and uses of words. In this chapter, I switch between the terms drug policy and drug policies. 'Drug policies' covers a wide range of administrative areas. In the most recent white paper discussing drug policies in its broadest definition, a number of areas are listed (Meld. 30 2011): employment, housing, rehabilitation, health care, social benefits and programmes, the treatment sector and legal status (any association with illegal drugs is defined as a criminal offence, and thus suggests drugs are a police matter). All of these areas are part of the field understood as drug policies in administrative circles. What matters here is that drug policies consist of contributions from a wide array of politico-administrative areas.

In Norway, the term for drug policies is 'ruspolitikk'. *Ruspolitikk* translates directly as 'intoxication policy' (see Edman, Chapter 10, this volume). Intoxication policy is broader than the concept of 'drug policy'. The term 'intoxicating substances' includes alcohol, whereas 'drugs' in this context are understood as illegal substances. Alcohol policies are, however, left out as a separate field of politics, distinct from 'drug policy'. Policies regarding illegal drugs are separated not merely by a distinct status defined by its illegality, but also by the fact that users of illicit substances are regarded, and treated, differently from other people asking for assistance. Welfare institutions distinguish between people worthy and unworthy of assistance. Drug use is generally a disqualifying attribute (apart from being punishable). Drug users report that they encounter rejections all across the welfare and health sectors (Skyggeutvalget 2020). Accordingly, any regulation does, in principle, relate to users of illicit drugs. Thus, the relevant rules are those that relate to people using drugs and having social and health problems. This is also why it is sometimes referred to as laws and regulations in plural, as drug policies.

Uses of words and concepts reveal underlying ideas. The argument forwarded here challenges some ideas apparently underlying some Nordic criminological circles. Perhaps it is described in too simple terms, but I call it 'the carrot-and-stick paradigm'.

## **The Carrot-and-Stick Paradigm**

Christie and Bruun (1996) labelled Norway and Sweden the Nordic 'hawks' of drug policy. Hawks promotes heavier use of punishment, but what is the alternative? Is it treatment? This question is left unresolved by Christie and Bruun. This chapter takes issue with the unclear and contradictory images of the area of politics sometimes referred to as drug policy. I argue that it is necessary to avoid an implicit understanding of drug policy as a binary field defined by punishment and treatment. This is 'the carrot-and-stick paradigm'.

Within the carrot-and-stick paradigm, punishment is seen as the hard measures (sticks) typically advocated by cynics. On the other side, treatment is seen as a soft measure. Both punishment and treatment come in different guises. Punishment is, to some extent, meshed with rehabilitative activities. Through the 20th century, penal ideologies have shifted back and forth between classical liberal ideals of pure responsibility deterrence on the one hand, and welfarist social engineering in the name of treatment and rehabilitation on the other. 'Treatment' is also a fluid term. It is sometimes referred to as day care in institutional settings with some sort of psychological rehabilitation techniques, sometimes as harm reducing activities such as opioid substitution treatment (OST), and sometimes as welfare in general.

In criminology, the tension between punishment and treatment has been a recurring theme. The founding father of Norwegian sociology of law, Vilhelm Aubert, famously argued that the medical and the penal spheres are inherently incompatible systems of thought and action (Aubert 1958). Aubert analyzed the difference between psychiatry and punishment and commented on the contemporary debate over 'treatment ideology' that prevailed in penal administrative circles at the time. Forty years later this work was still seen as a relevant starting point for a meeting of Nordic drug researchers. This meeting gave occasion for a host of different analyses of contemporary drug policy, and fortunately these contributions were published (Ólafsdóttir 2001). This publication harbours different views, but on the whole, it is clear that the participants do not agree on a common understanding of what the field of drug policy is or how it should be interpreted. The contributors mostly refer to some sort of bipolarity of punishment and treatment, but the terms are not fixed or agreed upon. Svensson (2001) states that punishment and treatment are two sides of the same coin because the recipient may confuse experiences from the two sides: it was 'difficult to say which is which'. Part of this confusion comes from the fact that the 'treatment ideology' is still in operation within penal institutions (Storgaard 2001). Whereas these and other reflections are well founded, they are still unclear in how drug policy is conceptualized. Träskman (e.g. 2001) said that the burden of punishment had become 'too heavy' and unbalanced, with the weight put on treatment. The implicit expectation of this is that the sides are opposites.

This ambiguity has prevailed. Jepsen (2008: 151) commented that the Danes had a long tradition of solving 'social problems via social welfare measures'. In an older review article, Jepsen and Laursen (2002) had discussed the 'ambivalent balance between repression and welfare'. This ambivalence was intensified by the rise of harm reduction (Jepsen 2008: 173). Some years later, Ødegård (2011) would claim that there are inherent contradictions between harm reduction and punishment, and that it ruined the dynamics of drug policy. Houborg and Frank (2014) and Giertsen (2012) later observed that the treatment sector is unable to solve or redeem the drug problem, but they leave it at that. In their optics, the problem is that politics is defined by penal law. And by leaving the alternative to punishment open, they implicitly accept the possibility that treatment or welfare may be a benign activity.

The criticism presented here does not rely on the premise that the mentioned authors are at fault. What is argued is that these conceptualizations of drug policy are too narrow, and that what is needed is a more comprehensive view of what drug policy is. In the mentioned works, studies of drug policy are troubled by a tacitly conveyed image of a political field defined by two opposites, defined basically by a positive and a negative pole.

Within the carrot-and-stick framework, the drug-free treatment industry is associated with the benign forces. Treatment in terms of therapeutic efforts to redeem addiction is regarded as a countervailing force opposing the evils of punishment. What is missed in this paradigm is that the treatment sector, the health providers, harm reduction activities and welfare organizations in general are interwoven parts of the same political rationality. It is not the police or the penal law (or its agents) that define politics nor coordinate it. The problem is not necessarily found in the realm of penalty, the problem is how the welfare state defines its role in relation to (marginal) citizens. And this, I argue, is part of the reason why decriminalization of minor drug offences will not fundamentally alter the landscape of drug policy.

A closer look at the political developments within the area of drug policy reveals that from an administrative point of view, the broader perspective is taken for granted. This will be shown in the next section, which in turn also portrays the width of welfare activities relevant for drug policy.

## **Recent Reforms and Political Action Related to Drug Use**

In 2011 the government issued a white paper on drug policies called 'See me! A comprehensive drug policy' (Meld. 30 2011). The title supports the basic premise of this chapter, that drug politics should be seen as the result of activities in many administrative areas. The paper promises to contribute to a 'comprehensive' intoxication policy. For our purposes, it is more relevant that the white paper summarizes former reforms that define developments in the area of drug policy. Their summary highlights the following reforms.

clearly seen in the current ambition to establish a standardized scheme for treatment ('pakkeforløp').

• Looking forward, the white paper (Meld 30 2011) emphasizes room for improvement in the 'coordination of assistance' to make the local services 'more accessible', 'improving housing conditions', 'improving possibilities for people with drug related problems to find work', 'assisting people having amassed problematic debt', 'possibilities to develop meaningful leisure activities' and 'non-drug related networks', 'close attention to child care', 'improving dental care' and 'mental assistance', and finally, 'continual follow-up on the system of opioid substitution programs'.

The short review offered above does not reflect all the nuances and width in the political activities mentioned, but it reflects the areas that are considered as relevant for drug policies by the government. However, Meld 30 is written in general and un-committal terms, based on 'law in books' and rarely on 'law in action'. So, it does not reflect the changes in real life chances of drug users. To discuss these reforms as law in action is far beyond realistic in a tiny chapter like this. To illustrate the point though, we could look to the reform that has altered the life chances most profoundly, perhaps ever, in drug policy (but still not mentioned in the list above): the establishment of opiate maintenance treatment in 1998 (known as LAR in Norway).

The story of LAR is a tale of small steps in a landscape of people in dire need of assistance. LAR started out as a reticent offer with strict rules and a heavy control regime. Slowly, the strict rules have been lifted. Step by step, LAR has become more flexible, but the regime is still harsh to the patients that do not fit in perfectly (Skyggeutvalget 2020). Despite all this, almost 8000 patients are enrolled in OST in Norway today, and it is hard to think of any social welfare programme that has improved and saved more lives. The design of LAR, however, is a familiar one. The rules of admission (and exclusion) are designed to promote a lifestyle as conformist as possible, and not to save lives (Johansen 2018a). Thus, LAR is organized in a way that leaves out a large part of the drug using population.

Since the publication of Meld 30, three more activities have been established. Firstly, a 'step-up plan' was vetoed for the entire field of drug policies, and this was repeated twice. The step-up plans involve the coordinated and detailed distribution of added resources to targeted areas of treatment and municipal organizations. These step-up plans are monitored by evaluation teams.

Secondly, increased attention has been given to reduce the number of deaths from overdoses; several nationwide so-called 'overdose strategies' have been implemented. The most recent of these strategies (Helsedirektoratet 2019) opened for activities that have hitherto been considered in conflict with the overall political strategies to counter drug use (to 'minimize demand and market offers'). Prohibition has been seen as the backbone of drug policies, and reference to these ideals prevented drug testing and other harm reduction activities from being accepted. These references were lifted in 2019, and drug testing, among other things, was included in the overdose strategy. This change in operational doctrines may be interpreted as a sign of changes in the overall political climate.

Thirdly, and most recently, the drug-reform committee gave their report (NOU 2019: 26). They propose to decriminalize the use and possession of illicit substances. Use and possession are still seen as criminal acts but are freed from penal sanctions. The reaction suggested was to meet with a coordination unit to find a way to assist the user. The committee did not propose any changes in legislation regarding selling and distribution, so the main structure of the legal framework is not challenged. No legal channels for obtaining so-called narcotics are suggested (it is not 'legalized'). Due to the criminal definition of *use and possession*, the police also maintain their right to frisk people suspected of possessing drugs. As a corollary, they also have the right to confiscate (and destroy) illicit drugs they find. One may imagine that the police will have fewer incentives to pursue such actions, but the legal side of frisking will remain the same. Frisked persons will not be punished for possession and use of illegal substances. In place of a penal sanction, the police will order them to meet a commission, inspired by the famous Portuguese model, to seek advice or help for their assumed problems. The radical part of this model is that the reaction will, under no circumstances, be open to sanctions of any kind (no fines, fees or any form of monetary burden) if the drug user fails to turn up at the health commission.

The reform ended in a failure. It did not pass in the parliament. I will not dwell on the reasons for this ending, the aim of the chapter is to consider the possible results from a de facto decriminalization of carrying and use of illegal drugs. The model proposed by the committee was made drastically less radical by the bureaucrats preparing a law for parliament. The ensuing political debate also revealed that conservative arguments still have a strong appeal in public exchanges.

The lesson from this overview is that the welfare state convolutes the lives of street users and that the role of penal law is unclear. The theme of this book is 'changes in Nordic drug policy', and although the penal status remains the same, there have been many changes. Optimism on behalf of lifting the penal domination in this area of politics is emerging, but will the decriminalization announced by the government alter the political landscape?

To answer this, we need to consider penalties in the context of the broader scope of welfare institutions and the welfare state as a rationality for state organization. In the next section I will juxtapose welfare rationality and the handling of drug-related deaths.

## **Death Rates in the Welfare State: The Case Against the Police**

Public debates on drug users have centred on the high death rates in Norway compared to other European countries. This focus shadows the general misery and 'unhealth' (different forms of sickness) endured by many street users (Johansen & Myhre 2005). Elsewhere, I have argued that closer attention to the health conditions of street users, in particular, would draw a more nuanced picture of suffering from the current political regime, and that it could also serve as a source of information on the human effects of drug policies (Johansen 2018a). Still, death rates serve as a crude measurement that will suffice for this brief account.

Norway started to count drug-related deaths in 1977. Since then, more than 7000 people have officially died from overdoses or other related causes. During the 1980s, the number of deaths increased steadily, but it never exceeded 50 people annually. During the 1990s, the numbers doubled more or less every third year: 100 was reached in 1992, 200 in 1995, 300 in 1997 and then numbers peaked at 400 in 2001. They then dropped again to 250 in 2003, and since then have oscillated between 250 and 300 (Amundsen 2015a).

In 2018, 286 people were reported dead from drug-related causes in Norway (NIPH 2019b). 'Poisoning' caused 210 of these, and 51 were registered as suicides. In 24 deaths, a combination of mental illness and behavioural anomalies was officially the cause of death, and involved illegal drugs.

Drug-related deaths mirror the pattern of the population injecting illegal substances: 30% involve women, and the average age of the victim is increasing (it was 44 years old in 2018). But apart from this, little is known about the context of these deaths. From the annual evaluations of the opioid maintenance programme (LAR), it appears that patients in that sort of treatment are effectively insulated from overdoses (Waal et al. 2019). This leaves us with a situation in which drug users who fail to qualify or choose not to partake in that kind of assistance are dramatically more likely to die from drug-related causes. A research project was instigated in 2015 to study overdoses more carefully, but this has yet to produce any results.

How high are these numbers? Drug-related deaths have almost reached the number of deaths related to alcohol (350 in 2018) and are 2.5 times that of traffic accidents (an area in which Norway have comparatively low figures). Drug-related death tolls in Norway are also high in a European context. EMCDDA produces a list of drug-related deaths annually. Per capita, Norway is among the top nations and has held a steady position for decades.

The high numbers have been a public concern for a long time. Some have challenged the validity of comparisons with reference to the quality of Norwegian reporting systems (Amundsen 2015b), but the numbers nevertheless call for an explanation that is not provided. The numbers have been a challenge for the current political regime.

What makes these numbers challenging is that Norway is a welfare state. The welfare state is expected to protect its citizens. High death rates among parts of the population are expected to trigger a protective response, whichever group is most vulnerable, i.e. designated organizations keep track of causes of death among the population. A micromesh system monitors the prevalence of diseases. Elaborate systems register weather phenomena such as flooding. When rivers rise above their limits, rescue services move swiftly and people are evacuated. High death tolls in traffic incidents incurred great efforts to prevent future accidents. The welfare state takes care of the population and takes an active interest in its well-being by monitoring its health in detail. This monitoring uses data from the health sector and research.

This contrasts with state interference in drug-related deaths. It is true that drug research has received much funding, but still, research to study the circumstances of drug-related deaths in more detail has not been prioritized, and the activities promoted to reduce the number of deaths have been remarkably absent and unsuccessful, i.e. the 'overdose strategies' mentioned above.

## **The Role of State Action**

The emergence of overdose strategies may very well reflect a gradual change in politics. Harm reduction has become more and more important. As mentioned above, in 2019 the time came where the benefits of harm reduction measures were believed to outweigh the importance of 'sending the wrong signal' (Helsedirektoratet 2019).

Implicit in the overdose strategies lies an understanding of the causes of drug-related deaths. Such an understanding is rarely proclaimed explicitly, but implicitly these deaths are attributed to inherent qualities in the drugs themselves and destructive lifestyles. While talk about causes of death is, by necessity, reductionist in nature, it is also worthwhile looking at in terms of the role of state agencies. I want to address the impact on living conditions created by rejections from health and welfare institutions. From the vantage point of the carrot-and-stick paradigm, the first inclination is to look at the police and administration of punishment for an explanation of drug-related deaths. As will be evident below, policing contributes to the total amount of pressure on drug users, but their efforts cannot fully account for the developments.

Indeed, the numbers of reported cases for drug crimes shows a remarkable co-variation with drug-related deaths. The number of reported drug-related violations increased threefold during the 1990s, reaching 45,000 cases in 2001. This number then fell by a third in the subsequent years before increasing steadily again until it reached 50,000 in 2013 and 2014. Since then, the numbers have again dropped by a third (the population has also increased by 15% in this time period). I will offer three brief comments on these figures before I return to the focus on welfare institutions more broadly.

Firstly, reported crimes are peaking in exactly the same year as the peak of drug-related deaths. The bulk of drug-related crimes consist of possession and use of illicit substances. It is common knowledge that these violations are driven by police initiatives. Thus, these figures reflect police activity.

Secondly, the steep increase in police activity was stopped after the Minister of Justice publicly proclaimed that the police should stop running after 'worn out drug users' in 2003.

Thirdly, a break in the trajectory in 2014 also came after a public scolding of the police, this time by the Attorney General.

The increase in police activity during the 1990s and subsequent years deserves closer scrutiny than I can offer here. Larsson gives a more detailed presentation of policing strategies in his chapter (Chapter 5, this volume). The fact that the two main breaks in the trajectory of drug-related crimes occur after public reactions from high standing officials is, in itself, something to reflect on. (Does it mean that the police organization did not respond to internal communications, or does it reflect that political signals were mixed and that the police organization was confused about how they were expected to respond?) Nonetheless, it would be harsh to blame active policing for the high numbers of drug-related deaths. Firstly, the police appear, at least partly, to take a more relaxed attitude towards the open drug scenes (Lundeberg & Mjåland 2017). Secondly, it is not necessarily so that short prison sentences are on top of the list of problems for high-maintenance drug users (they frequently seem to benefit physically and mentally from time out from the drug scene). Third, and most importantly, it is hard to see how the causal link would be if the police were to be held directly responsible. Drug users hide from the police, but they also hide from private guards and the general public. And, most importantly, the numbers of deaths have not responded to the drop in charges by two fifths after 2014. Thus, the case for blaming the police is not so straightforward.

At the time of the peak of drug-related deaths, harm reduction in what has proven to be the most effective form (OST/LAR, mentioned above) was upgraded and opened up to a broader number of the most worn-down drug users. This fact leads the search for causes of death rates in a new direction. I have argued that politics relevant to the control of drug use should be seen broadly, with the long list of administrative entities borrowed from Meld 30 in mind. Harsh policing does not produce deaths among drug users, but it is possible to identify some indirect relations.

First, harsh policing may reflect a harsher political climate. In this way, policing is merely one expression of politics in other parts of the welfare state. A 'tougher stance' is taken also in the health sector, in social services and in other sources of support. The result is that drug users are rejected more often than before when they ask for assistance.

Secondly, and also a result of the first, the general health of drug users deteriorates as a result of the rejections. When the health is poor, death is a more likely outcome. One general observation is that deaths occur when people hide. They hide from the police, from security guards and from being seen at all. They hide for different but related reasons. Drug users injecting the most lethal substance, opioids, hide because they are ashamed, fearful of unpleasant consequences like being arrested, or to protect themselves against robbery.

It is futile to look for scapegoats. The death tolls of drug users are certainly dramatic, and slowly it seems that the alarm bells also ring in government circles. In the remainder of this chapter, I will address how the welfare state produces marginality on a broader scale than can be attributed to police activities.

### **Curtailing Welfare for the Unworthy**

The minimal definition of a welfare state is that it provides a net of security for citizens who 'fall' from the security associated with a steady income and stable sources of sustenance (Garland 2016). This provision takes different forms, i.e. financial insurance for the individual. It may also be viewed as proactivity to prevent citizens from falling. The number of traffic accidents and deaths has been reduced by 94% since 1970, (Skadeforebyggende forum 2021, Statistikkbanken 2021), due to better security in cars, laws making the use of safety belts mandatory and, not least, through massive investments in roads. Inquests are routinely established in the wake of fatal accidents. Similarly, the numbers of deaths caused by cordial diseases has been reduced by 50% since 2008 (NIPH 2019a). Hospitals conduct autopsies to learn from as many deaths as the finances allow (Johansen 2020). State organizations monitor the prevalence of illnesses and causes of death closely, and are prepared to react quickly if there are changes in threats to the lives of citizens. Some welfare states also operate with a distinct sort of rationality, Garland (2016) says, and take an active interest in rescuing people's lives and securing their health. The Scandinavian states are clearly within this segment of welfare states, but despite the overdose strategies, a comparative keenness has not been seen in relation to the prevention of deaths among injecting drug users.

The welfare state has received increasing attention in recent years (Barker 2017; Smith & Ugelvik 2017). However, this literature misses important aspects of how the Scandinavian welfare states operate. Much of the criminological presentations operate with underdeveloped conceptualizations, similar to the problems associated with drug policy mentioned in the introduction. Welfare is perceived as provisions of goods and security, and the criticism of the welfare state is that it does not live up to the ideals it purports. The typical form of criticism is to point to certain groups that (evidently) suffer from too little support compared to their needs (Barker 2017). Whereas this form of criticism is a most needed correction to state activities, it misses a crucial element that the Norwegian sociologist Midré pinpointed in 1991. On the basis of an historical account, he claimed that every form of welfare model is centred on criteria for inclusion and exclusion. The crucial element is that benefits are provided with a threshold set to delineate between the 'worthy and unworthy' recipients of assistance. Simply put, those who did not 'fall' as a result of their own responsibility are worthy. A welfare institution does not merely offer benefit, it also rejects applications. An intrinsic aspect of welfare institutions is that they say 'no' to people they consider unworthy of assistance and aid. Based on this analysis, Midré characterized welfare as 'institutions of curtailment' (Loedemel & Trickey 2001; Midré 1991).

For a good part, the benchmarks defining the worthy and the unworthy are found in laws and other forms of regulations, traceable as sources of law in the legal system. It is common knowledge that judgement about worthiness also relies on informal discretion. Informal discretion is informed by stereotypes circulating in political culture and among professionals. For instance, the importance of police culture for organization output has been a main theme in police research for decades (Granér 2004; Lofthus 2009). Similar analyses of the importance of informal discretion in welfare organizations have not been conducted.

The curtailing function of welfare institutions makes the employees operating on the frontline – the street-level bureaucrats – important. Street-level bureaucrats are gatekeepers for the welfare state, and this is a core activity in the Scandinavian model. Gatekeepers operate all over the welfare sector: emergency hospitals and other specialized health institutions, social welfare organizations, housing agents, treatment organizations, housing institutions etc. The argument here is that these gatekeepers, and not merely the police, are crucial in defining the conditions for drug users. The suggested argument here is that the rate of arrests made by the police is an indicator of gatekeeping all over the welfare spectrum, and not a cause itself.

However, I can only partially substantiate this argument. The most obvious example to illuminate curtailment in the welfare state would be in social services. However, a comprehensive presentation of the research on the role of welfare agencies regarding drug users has not yet been made, although Lundeberg and Mjåland produced a very interesting analysis of the political nexus activated when the open drug scene in Bergen was taken down in 2015 (Lundeberg & Mjåland 2017). Mik-Meyer (2018) also made a promising cross-sectoral approach focussing on the views of social workers. Similar studies would be needed from the health sector. For now, we must rely on anecdotal evidence from the users (Hart 2000). I have made an attempt at an analysis with regard to curtailment in LAR as a harm reduction activity (Johansen 2018a). However, in want of existing research, I will use anectotal evidence on treatment.

Treatment, I argued in the introduction, is as much a part of drug policies as any other sector within the welfare state. What is interesting in this perspective is how they design their demarcation against the unworthy clients. The example provided here is chosen because it sheds at least some light on the role of frontline workers in an assisting sector for drug users within the setting of a welfare state. I will present the views of an experienced drug user reflecting on his journey through the treatment sector. His views are his alone, but they have been collaborated by at least some other people with similar biographies (in conversations with the author).

### **Power and Knowledge in the Treatment Sector**

Drug treatment has three distinct branches: OST ('LAR' in Norway), policlinic assistance and institutionalized, sometimes drug-free, treatment (which may also be combined with LAR). This section is about the latter, and the term 'treatment' will refer to institutions offering in-house complete care and some sort of therapeutic regime.

It should be made clear from the start that a substantial number of drug users benefit from treatment programmes (Ravndal & Vaglum 2001). However, troublingly, there is also little success to report (Giertsen 2012; Ravndal in Skretting 1997). And as Ravndal and her collaborators pointed out on various occasions, the most striking fact has been how many individuals drop out of treatment (Ravndal & Vaglum 2001). This fact is underplayed by most research (however, Nygård 2021 points out a new pattern). This is but one indication of the underlying presuppositions of both the research community and administration of drug policy (which is funding the research). If one wanted to find out whether treatment was useful systematically it would require a basis for comparison (something functioning as a control group). A control group would involve people having similar troubles associated with drug use but who are not in treatment programmes. Designs of this kind does to my knowledge not exist in Norway, and it reveals that the research community shares outlook with the treatment sector (see also Skyggeutvalget 2020).

It is well known (but significantly not recorded) that some therapeutical schools have been particularly lethal ('therapeutic societies'). There are no estimates on the balance of harms and well-being resulting from the treatment sector. Research mostly tells us how many (few) individuals lead a drug-free lifestyle three and five years later (focussing on the tiny fraction that complete the programmes).

In Norwegian research, there is barely any reference to the possibility that people leave their habit independently of treatment institutions. This blindness is remarkable given that episodes of 'natural recovery' are sometimes reported in the press, it is portrayed in popular culture (e.g. *Trainspotting*) and, not least, it is commonplace in international research. It is a striking feature of Norwegian drug research that there is no research to be found on how drug addicts actually leave their habits (Bretteville-Jensen 2005 briefly mentions this possibility). Toneatto (2013) claims that 'natural recovery' is a taboo in current medical discourse because it is an anomaly in the paradigmatic understanding that underpins all treatment. It is the treatment industry that defines drug use as addiction, what addiction is and, accordingly, the research agenda. Research has been focussing on the problem 'what works with treatment'. It has been blind to the possibility that factors other than treatment might be helpful.

Furthermore, success stories from the treatment industry are rarely weighted against the drop-out rate (Brorson et al. 2013) or harms associated with it (Chatfield 2014). Dropping out becomes a personal failure, and not a failure on behalf of the treatment programmes. What if the treatment programmes do not primarily satisfy the needs of its users? It could be argued that this is what the drop-out rate actually reveals (Ravndal & Vaglum 2001). Many drug users do not find treatment relevant for their needs. And given that for them, getting out of the drug habit might be a matter of life and death, this is a profound statement.

To summarize, research has not (systematically) addressed the content of drug treatment programmes and what is going on inside the institutions delegated the task of curing drug users. One can only speculate why the research community has not shown attention to this aspect of the drug industry, but no matter why, in this void we may instead listen to a former patient looking back at his experiences. In the next sections I will highlight the reflections made by Jan-Erik Tørres, in a lengthy article in a Norwegian journal, based on his personal experiences in both drug-free treatment and OST-based treatment (Tørres 2019). He claims that these experiences are neither unique nor rare. Whether this is true would be a task for the research sector to find out.

#### **What We Don't Know: Curtailment in Treatment**

Tørres' comment was written before the committee gave their report, but his main argument goes beyond the mandate of the committee to say that, just as important as aspects of punishment, is the 'punishment' found in the treatment sector.