Are we asking too much from prisons?

The Solomon Islands Correctional Service is currently offering their induction training for newly recruited prison officers, and I was invited to facilitate a few sessions on the Mandela, Bangkok and Beijing Rules.

With an eager, inquisitive and energetic group of recruits, many critical questions arose. One of them was in relation to rule four of the Mandela Rules, which states that:

The purposes of a sentence of imprisonment…are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure…the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.’ (Emphasis added)

That sounds very good, but the recruits here in Honiara were under no illusions as to how difficult this would be in practice. Just like in so many other countries, mental health care is virtually non-existent in the Solomon Islands, and thus many people with mental disorders end up in prison. One recruit asked ‘so how can we be expected to rehabilitate and reintegrate people with mental disabilities?’ I’m ashamed to admit that I had no good answer.

It was also recognised that there are typically a whole array of social and economic factors that lead to a person being sent to prison: ‘these are often people who never had real parents, who missed out on basic education, and who suffer from drug or alcohol abuse disorders – that is a lot of problems to fix.’ And it is true, isn’t it? Rule four seems to be asking prisons, and the people who work in the correctional services, to effectively reverse decades of letdowns in a person’s life. Where the social welfare, education, and public health systems have all failed – prisons, with their almost total lack of specialised personnel and resources, are somehow expected to succeed.

To make matters worse, in many countries prisons are seen as the poor cousin, both among the uniformed services and in the criminal justice system. Justice Audits from around the world suggest that prisons are often far less of a priority for governments than for instance the police. Too often the resources available are just enough to ‘maintain security’. In such situations, prisons become little more than storage facilities where people are ‘put away’ for a certain period of time. Rather than rehabilitate and reintegrate people, prisons are then very likely to exacerbate their problems. Many prisons in the world, even in very rich countries, are known to aggravate drug abuse, gang cultures, violence and alienation from society. Such conditions will also do further harm to people’s physical and mental health.

It is of course easy to blame it all on political desicsion makers for not allocating enough resources. But again reality is slightly more complex; no politician, anywhere in the world, will gain much public support by advocating that more money be spent on prisons at the expense of all the other priorities of a government.

So, the question posed by the recruits here in the Solomon Islands then remains; are we not asking too much from prisons?

Marcus Baltzer

Induction training for recruits of the Solomon Islands Correctional Service, Honiara, January 12, 2017

Induction training for recruits of the Solomon Islands Correctional Service, Honiara, January 12, 2017

Who is truly ‘developed’ and who has the skills to live sustainably?

This article was first published in the Solomon Star, Monday October 10, 2016

According to the United Nations, the Solomon Islands is a ‘least developed country’. The underlying assumption is of course that this is an undesirable state of affairs, and that every effort should be made to ‘develop’ by fostering economic growth, in much the same way as most other countries have done. One of the most frequently cited obstacles to economic growth is the perceived inadequacy of skills among people in the Solomon Islands. The World Bank tells us that ‘there is a serious skills deficit in the Solomon Islands, constraining its people from taking advantage of the economic opportunities.’

I recently went for a hike from Kakabona, across Guadalcanal, to Tangarare on the Weather Coast. Before the advent of the motorised ‘banana boats’ a decade or so ago, this was something of a highway. It was the only way in which people from the west side of the Weather Coast could reach Honiara. Today, hunters use the trails occasionally, but long stretches of the trail have practically vanished in the thick undergrowth.

It isn’t a hike for the faint hearted, and I carried about 15 kilograms worth of food and gear. I will not bore you with my packing list – the point is, even though I have some outdoor experience, I needed a lot of stuff to undertake a three-day journey through the jungle. Most importantly, I hiked with a friend and guide, Stanley Mapaniata, without whom I would undoubtedly have gotten lost within hours. It would not have been the first time a foreigner went missing in the dense tropical forests of Guadalcanal. So, you can picture me there, with a big backpack, good footwear, and outdoor clothing.

By contrast, the Solomon Islanders who venture into the forest typically carry little more than a bush knife. They don’t have to bring anything else, since they have a very special set of skills, sometimes described as ‘wilderness skills’ although I much prefer the Australian term ‘bush craft’. They need not carry water, since they know what vines they can cut to get a drink. They need not carry food, as they have the skills to catch fish in the rivers, and the knowledge to identify and harvest edible plants along the way. They need not carry a tent, since they can construct a shelter in less than 20 minutes, using nothing but materials from the forest. And they need no medical kits, as they know what plants can be used to treat cuts, bruises, headaches and diarrhoea. They don’t even need matches. In Kusumba, I met a man who made a friction fire with no tools faster than I could make it with my matches and prepared tinder – a fine display of bush craft skills.

Stanley Mapaniata cooking kasume, harvested from the forest, using bamboo as a cooking pot.

Stanley Mapaniata cooking kasume, harvested from the forest, using bamboo as a cooking pot.

This prompted me to start asking people around me about their bush craft skills. Very quickly I realised that many people in the Solomon Islands, especially those who grew up outside of Honiara (which is the vast majority), still have the skills, the knowledge, and the mindset to live in symbiosis with nature; to live as all human beings did for hundreds of thousands of years, right up to the industrial revolution. This way of life, and the skills it requires, may not generate much economic growth, but living off subsistence farming, small-scale fishing, and the occasional outing to harvest wildlife from the jungle, is clearly far more sustainable than the way in which people in my ‘highly developed’ country live.

Put in a different way; it wasn’t the lifestyles of ‘unskilled’ and ‘least developed’ Solomon Islanders that caused global warming, polluted oceans, poisoned rivers, and destroyed eco-systems. Sure, we are seeing considerable environmental degradation in the Solomon Islands today, but that is a symptom of unregulated capitalism – not exactly an economic system that the people of this country chose for themselves. Ironically, the ongoing ecological destruction in the Solomon Islands is a direct consequence of the largely failed attempts to ‘develop’ and spur economic growth.

Earlier this year, the United Nations adopted the new Sustainable Development Goals (SDGs) largely in response to the realisation that what so far as been considered ‘development’ (a term taken to be little more than an euphemism for ‘economic growth’) has caused social and environmental side effects so disastrous that a radical revision was needed. While the SDGs retain an emphasis on economic growth, they redefine sustainable development as being ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’

To me this all begs a fundamental question: who is truly ‘developed’? The people who live rather sustainably, with skills to live in harmony with nature, or people like me, who live totally unsustainably, estranged from nature, with only the ‘skills’ to fuel an economic system that has devastated our global environment to the extent that our entire existence on this planet is now threatened?

The Solomon Islands may be described as ‘least developed’ on account of its failure to generate economic growth, and its people may lack the skills needed to make the national economy grow. But if we apply the sustainability criterion, as the SDGs suggest we do, then we may find that the way in which most people in this country live is actually highly developed, in the sense that they indeed are trying ‘to meet the needs of the present’ using skills and knowledge that have been passed down through generations, ‘without compromising the ability of future generations’ to do the same.

As for those of us who pump out massive amounts of carbon dioxide by running air conditioners powered by diesel generators, driving our SUVs, flying around the world, consuming products transported half way around the globe, and generating mountains of waste in the process – perhaps we ought to show more respect for the rural people in this country who live quite sustainably and who have the skills to do so. Achieving sustainable development globally will probably require us to live a lot more like them, and not the other way around.

Marcus Baltzer

Guadalcanal

When democracy yields: Saburo Ienaga’s lessons from Japan’s role in World War II

Over last decade or so, working with governments and civil society all over the world, I have sensed a growing degree of fatigue with concepts associated with liberal democracy such as civil liberties, human rights, or participatory and inclusive political processes. Or perhaps it isn’t fatigue with the concepts as such as much as the overuse and misuse of the terms. Either way, in the non-western world, authoritarianism is now often seen as an effective and efficient system of governance for purposes of attaining economic growth. And in the western world, being politically correct (i.e. trying to avoid the use of offensive and inflammatory rhetoric) has become synonyms with cowardliness and insincerity. Political forces with scant respect for the fundamental pillars of the liberal democracy appear to be faring better than they have since the end of World War II, so much so that they have become known as ‘populist’ in the mainstream media.

Professor Saburo Ienaga

Professor Saburo Ienaga

Against this backdrop, I was lucky to find a copy of Japanese historian Saburo Ienaga’s ‘The Pacific War 1931 – 1945’, originally published in 1968. This is an account of the events that led Japan onto its path of self-destruction, culminating in the defeat and occupation of Japan in 1945. Ienaga’s work is precise, rich in detail, and in Japan at least, politically explosive. After all, this is a man who was nominated for the Nobel Peace Prize by none other than Noam Chomsky. Ienaga is perhaps best known for his tireless efforts to document atrocities by the Japanese Imperial forces, not only in occupied countries such as Korea or China, but also, and perhaps less widely acknowledged, in Japan itself (see press cutting below). 

The book sets out by asking a fundamental question: ‘Why was the Japanese people not able to prevent their government from starting the war?’ To Ienaga, it was critical to get history right. He noted how ‘[t]he public only wants to forget the unpleasant experience, but collective amnesia will also erase the costly lessons of the war. This book is an attempt to halt that erosion of consciousness.’

He offers overwhelming evidence pointing at three underlying factors that combined to give rise to a tragedy in which tens of millions of people lost their lives.

Firstly, the use of an education system, which has always placed emphasis on conformity, to indoctrinate a whole generation in fascist ideology and the need to fight and die for a god-emperor. This meant that too few people had the intellectual urge to question the increasingly fascist and aggressive ideology of the state.

Secondly, the quashing of all free debate and suspension of civil liberties, which meant that even the relatively few who were inclined to question, despite the propaganda, were swiftly silenced. Questioning any government policy, or even the way in which it was implemented, became tantamount to treason.

And thirdly, the ever-increasing power and autonomy of the military and police, a process justified with reference to ‘national security’, which meant that the armed services gradually did away with civilian control, ensuring that the country evolved into a de facto military dictatorship.

Ienaga sums up his findings in a paragraph:

The pre-war state kept the populace in a powerful vise: On the one side were the internal security laws with their restrictions on freedom of speech and thought; on the other side was the conformist education that blocked the growth of free consciousness. The vise was tightened whenever any individual or popular resistance challenged reckless military action. These laws and public education, used as instruments of coercion and manipulation, were the factors that made it impossible for the Japanese people to stop their country from launching the Pacific War.’

Ienaga also describes how once a society begins to lose its democracy and its freedoms, the process quickly gathers momentum, and it becomes ever more difficult to reverse it: ‘There was no way to stop the escalation in the 1930s; there was no freedom to demand an end to the war in the 1940s even when it was obviously lost. The meaningless slaughter continued until Japan’s cities were smouldering ashes and atomic bombs brought the Japanese people to the brink of genetic holocaust. If the popular will had influenced policies, the conflict might have been avoided or at least shortened. It was a vicious cycle: the weakness of democracy was one cause of the war, and the war further eroded freedom.’

Ienaga’s analysis serves as yet another reminder of why it is so dangerous when politicians, even in relatively stable democracies, begin to sacrifice civil liberties purportedly in the interest ‘national security’. Surly the fate of Japan between 1931 and 1945 warns us that whatever national security risks we seek to mitigate by dismantling civil liberties, the very act of doing so gives rise to far greater risks, not just to the nation, but more importantly to its people.

It also reminds us of how important it is that the education system encourages critical and independent thinking. Aside from spurring innovation and entrepreneurship, Ienaga shows how this can serve as an effective insurance policy against tyranny and oppression. Finally, in an era in which many countries are again investing more resources in military might, again supposedly necessitated by ‘national security concerns’, Ienaga’s work illustrates how a powerful military relatively quickly can turn itself into a national security nightmare of downright apocalyptic proportions.  

Saburo Ienaga dedicated his life to ‘the truth about the Pacific War and making these facts as widely known as possible…’ this was, he believed, ‘the only way to avoid another tragedy, and a solemn obligation, a debt we owe to the millions who perished in the fires of war.’ Professor Ienaga, who passed away in 2002, clearly fulfilled that obligation. The question is if the people who call themselves leaders today will care to listen. 

Marcus Baltzer

An obituary in the UK Guardian can be downloaded here. The article below is from the Canadian Globe and Mail. 

A cartoon from 2016. Saburo Ienaga may have found it helpful in illustrating some of his messages. Thanks to "Anonymous" for sharing it. 

A cartoon from 2016. Saburo Ienaga may have found it helpful in illustrating some of his messages. Thanks to "Anonymous" for sharing it. 

Notes from today's High Court session

At about 18.30, D and V had an argument. V punched D. D staggered and attempted to launch a punch towards V’s chest, but V took a step backwards, so the punch either (a) did not connect or (b) connected rather poorly (witness statements differ on this point). Either way, the effect was to put V off balance. At this point, D’s brother D2 stepped in and punched V in the face. V fell to the ground and his head hit the concrete. V suffered a concussion and a fractured skull, but was not given any medical attention until a few minutes past midnight. That same night V died from oedema in the brain.

Both D and D2 were charged with manslaughter. D2 pleaded guilty, D pleaded not guilty.

  1. Can D argue that D2’s punch was an intervention, a novus actus interveniens, that broke the chain of causation between D's attempted punch and V’s death?
  2. Can D argue that his attempted punch was an act of self-defence, meaning that this was not a culpable act to which the death of V can be attributed?
  3. Can D argue that V would have hit the ground and sustained the same injuries even if D had not launched his attempted punch (a reverse ‘but for’ test)? 

We shall find out in the coming days, and hopefully we will not have too many adjournments. 

Marcus Baltzer

Postscript: Once the prosecution had presented its case, D filed a 'no case to answer' motion. The High Court ruled that D indeed had no case to answer, as the evidence put forward by the Crown was never going to be sufficient to prove beyond reasonable doubt that D's actions had contributed substantially to V's death. 

Ideology or evidence? The dichotomy in criminal justice reform

Last year, when we were working on a new national plan for countering the effects of illicit drugs in Laos, one of the main arguments put forward in favour of decriminalising possession for personal use was a public health argument: If drug users fear arrest and prosecution, it will be impossible for the health system to reach them with services to prevent the transmission of infections diseases, and to help them manage their drug use. The public health consequences will be detrimental: more deaths from overdoses, increased transmission of HIV and other infections diseases, and more people transitioning from recreational use into problem use and dependency.

Yet, as these discussions went on between the various stakeholders, health practitioners began to ask; what if there are other provisions in the criminal law that also have a bearing on pubic health? The fact that Laos is currently developing a new penal code presented an excellent opportunity to review the criminal law from a public health perspective. And so, over the last two months, a small multidisciplinary team has been examining the draft penal code, asking ourselves: what would the public health effects be if the current draft wording were to be adopted and enforced?

Big questions immediately began emerging. One of first issues that came up was whether selling sexual services should be an offence or not. From a strict pubic health point of view, it became obvious that criminalising sex work would be counterproductive. It would hamper efforts to reach sex workers (a so called ‘key population group’ for purposes of HIV transmission) with critical medical services, including free condoms and voluntary counselling and testing. Furthermore, sex workers would be even more disempowered, thereby severely curtailing their ability to insist on the use of condoms and safer working conditions. Yet, it also became clear that many people also felt that decriminalising sex work would be incompatible with state ideology, religion, and moral values. This divergence between public health interests on the one hand, and ideological and moral values on the other, manifested itself again and again throughout our assignment. 

When examining the consequences of criminalising abortion, the evidence, from Laos and from around the world, suggested that penalising women who are in need of a safe abortion would not lead to a reduction in the number of unintended pregnancies. Such provisions would instead force women into harmful and unsafe procedures, thus jeopardising women’s lives and undermining public health. Additionally, complications from unsafe abortions would create an unnecessary burden on the health system resulting in increased costs and inefficient use of human resources. During the course of our consultations, nobody actually disputed the factual correctness of these findings. Arguments in favour of retaining criminal sanctions for women seeking abortions were instead based on the belief that human life commences at conception, and that abortions therefore are unacceptable, regardless of the public health benefits of making safe abortions available.

The dichotomy of evidence-based public health arguments versus deeply ingrained social values arose in relation to several other provisions, such as the criminalisation of drug use relapses, the transmission of HIV, and obviously, the possession of illicit drugs.

This is, of course, neither surprising nor new. Many countries have had, and continue to have, vibrant debates around these topics, and as we discovered, these debates have led to widely differing legislation in different countries. But in Laos, this is all quite novel. By asking medical practitioners to review the draft penal code from a scientific and medical point of view, the Lao Government has set a valuable procedural precedent, and it demonstrates an increasing willingness to take data and science into account in the law making process.

Regardless of what the National Assembly decides upon when they adopt the new penal code later this year, the Lao Government should be commended for their willingness to consult scientists and medical practitioners.

The evidence now put before the law makers will require them to make difficult judgement calls, in which the opportunity to improve the health and well-being for large numbers of people may be pitched against personal moral convictions. As one of my colleagues noted ‘while this [the review recommendations] may cause some controversy, the public health consequences of not giving effect to these recommendations will, without any doubt, be far more detrimental.’ 

Marcus Baltzer

Everything you think you know about addiction is wrong

What really causes addiction — to everything from cocaine to smart-phones? And how can we overcome it? Johann Hari has seen our current methods fail firsthand, as he has watched loved ones struggle to manage their addictions. He started to wonder why we treat addicts the way we do — and if there might be a better way. As he shares in this deeply personal talk, his questions took him around the world, and unearthed some surprising and hopeful ways of thinking about an age-old problem.

Understanding both the medical and science behind drug use patterns and drug use disorders is absolutely critical for purposes of designing an effective response. And as Johann Hari notes, the day we are ready to accept the science, drug control policies will have to change radically. 

Please watch his TED talk below. In Lao, the word for 'understand' is 'khao chai' - which actually means that something enters one's heart. I think Hari's way of explaining addiction helps us understand drug use with our hearts. If you want to watch the video with Thai subtitles, please click here


Law enforcement versus victims’ rights – a balancing act

During the last few months, I have had the opportunity to make some minor inputs to the process of finalising the draft bill on countering human trafficking in Laos.

One of the issues that the drafting committee has had to grapple with is victim identification. This has proven to be a walk on a tightrope between (a) the duty of law enforcement agencies to pursue perpetrators and (b) the understandable wish of many victims to not be part of any criminal investigation. In countries where it is difficult to offer reliable witness and victim protection, it may even be dangerous for victims of human trafficking to be perceived as providing information to the police.

Policy makers appear to be faced with a difficult choice.

Option one is to separate the identification process from law enforcement. This would allow a victim to be recognised as a victim, receive the medical, psychosocial and material support that he or she is entitled to, and to then decide whether or not to report the matter to the police. The anticipated drawback with this option is that many victims may not report what they have experienced to the police. This would create a situation in which the state has to recognise a potentially large number of victims of this very serious crime, but is left unable to take any action against the perpetrators.

Option two is to let the police manage victim identification or to have some other system whereby the police is notified of all instances in which victims seek help from the state. The anticipated drawback with this option is of course that many victims might decide to forfeit the offer of medical, psychosocial and material help for fear that their perceived cooperation with the police could trigger retaliation by the syndicates that orchestrate the trade.

While policy makers in Laos are doing what they can to find some middle ground between these two options, it is reassuring to know that they aren’t the only ones struggling with this dilemma. As I was doing my research, I stumbled across a UK Home Office Memorandum addressed to the Joint Select Committee of the Modern Slavery Bill. The memorandum was a response to a set of questions around ‘the duty to notify’ in clause 35 of the draft Modern Slavery Bill. The Committee was concerned that this legal duty to report all suspected victims of human trafficking to the police would deter victims from coming forward.

In the UK, they now appear to have landed in a compromise. Service providers have a duty to report cases to the police, however, there are two crucial safeguards to ensure a victim-centric approach and to avoid discouraging victims from seeking help:
(1) Adult victims will always have the choice to remain anonymous and so can request that their personal details are not provided to the police.
(2) The legal duty to notify does not apply to Non-Governmental Organisations (NGOs). In the words of the Home Office: ‘Whilst we would like NGOs to have an excellent relationship with law enforcement and share information on victims – to protect them and tackle those exploiting them – we will not use this Bill to compel them to provide information.’

As Laos continues to find its own solutions, perhaps the last sentence in the Home Office reply is worth recalling. ‘We will not use this Bill to compel them [the victims] to provide information.’ This is not only a matter of respecting victims’ rights. It is also a question of ensuring the quality of evidence. Victims who are compelled to report to the police, and who do so only because it is a condition for accessing other kinds of desperately needed help, may not be the best sources of information. If things other than a desire to hold the perpetrators accountable motivate victims’ cooperation, there is a risk that they will try to give as little information as possible, or worse, that they will mislead investigators so as to avoid retribution. In short, law enforcement might not get much to work with, even if victims were compelled to provide information. 

There are many causes of human trafficking in Laos. Many argue that the economic differences in the Sub-Mekong region encourage people to migrate to relatively wealthier neighboring countries like Thailand. An ILO supported study by the Lao Government found that nearly seven percent of households in three border provinces had family members working in Thailand. With more than half of the population under the age of 20, young Lao migrate to fill unskilled jobs and become vulnerable to trafficking.

There are many causes of human trafficking in Laos. Many argue that the economic differences in the Sub-Mekong region encourage people to migrate to relatively wealthier neighboring countries like Thailand. An ILO supported study by the Lao Government found that nearly seven percent of households in three border provinces had family members working in Thailand. With more than half of the population under the age of 20, young Lao migrate to fill unskilled jobs and become vulnerable to trafficking.

Marcus Baltzer

The iron law of prohibition

Last week, I had the pleasure of meeting Dr. Alex Wodak, a physician and the director of the Alcohol and Drug Service, at St Vincent's Hospital in Sydney. Alex is one of the world’s leading advocates for pragmatic and public health focused reform of laws and policies on drugs. The WHO and the Ministry of Health invited him to Laos to offer advice on our draft Drug Control Master Plan.

Having spent his entire professional life trying to find better and smarter ways of mitigating the harm caused by drugs, both to users and to society, Alex was able to suggest a number of relatively cheap and simple interventions, which are likely to save the lives of many, and improve the lives of many, many more.

Dr. Alex Wodak is the President of the Australian Drug Law Reform Foundation and was President of the International Harm Reduction Association. Wodak also helped open Australia's first needle exchange programme and the first medically supervised injecting centre in Kings Cross. Pay attention to the dilemma presented on the powerpoint slide. 

Dr. Alex Wodak is the President of the Australian Drug Law Reform Foundation and was President of the International Harm Reduction Association. Wodak also helped open Australia's first needle exchange programme and the first medically supervised injecting centre in Kings Cross. Pay attention to the dilemma presented on the powerpoint slide. 

But what perhaps made an even stronger impression on me, personally, was his analysis of the cause and effect relationship between various drug policy options and the drug markets. An example is the ‘iron law of prohibition’ to which Alex introduced us in one of his presentations. So, what is this law? Well, it is based on the premise that when drugs or alcohol are prohibited, they will be produced on illegal markets in more concentrated and powerful forms, because these more potent forms offer better business efficiency—they take up less space in storage, less weight in transportation (thus minimising he risk of detection), and they sell for more money.

In much of Asia, we saw the effects the iron law of prohibition in the late 20th century. Bulky and pungent opium was made illegal, so refined and nearly odourless heroin became more prevalent, albeit with significant risk of blood-borne disease when injected by needle, and far greater risk of death from overdose. In the Americas, cannabis was also found too bulky and troublesome to smuggle across borders, so smugglers turned to refined cocaine with its much higher potency and profit per pound. Crack cocaine is entirely a product of the prohibition and so is crystal methamphetamine.

There is very little data around drug use patterns in Laos. However, looking back over the last two decades, two clear trends can be observed: opium for domestic consumption has fallen considerably, and so has the number of opium users. Most of the opium grown today is destined for export, refinement into heroin, and sale on international markets. At the same time, ever more people have begun using various amphetamine type stimulants (ATS) or yabaa, as it is known locally. Luckily, the habit of injecting heroin has not spread as quickly in Laos as it has in many neighbouring countries.

But can the yabaa trend be a product of the iron law of prohibition? The inconveniences of producing opium are many; large tracts of land are needed, and the plant is a little picky; it requires certain conditions to grow well. Opium plantations can easily be spotted from the air, and even from space with the help of a satellite – in fact this is why we know on how many hectares of land opium is cultivated. Being a plant, opium has to be planted (on fields carved out from dense jungle vegetation), it has to be looked after and harvested, all of which is labour intensive. And it is of course subject to same risks as all other crops; too much or too little rain, too hot or too cold – and much of the investment can be lost. Compare that to ATS – it can be made anywhere, regardless of climate, in small and mobile laboratories, that can be set up in sheds, basements, barns, attics, old warehouses – anywhere. Certainly nothing that will stand out on a satellite photo. ATS can be produced around the clock, every day of the year, regardless of seasons – and the precursors are readily available in abundance in any country with a pharmaceutical industry. So, it is not so hard to imagine that when law enforcement threw spanners in the machinery of opium production, it may inadvertently have encouraged the industry to look for easier and more pliable alternatives.

Of course, opium production carries on, but it is no longer produced for the Lao market. The costs and inconveniences of production today are only justifiable if the raw opium is processed into heroin and sold on markets where retail prices are far higher than in Laos. Maybe Lao consumers are still too poor to constitute a good retail market for heroin. On the domestic Lao drug market opium has instead completely lost out to yabaa, which is selling at record low prices to a seemingly ever-expanding customer base.

One should certainly not be too nostalgic about opium. The widespread opium use of the olden days had serious implications, but as Alex pointed out, it was a drug used primarily by an older generation. Yabaa, on the other hand, is a drug used mostly among young people, so its effects on society are very different. Nobody (to my knowledge) has done any scientific socio-economic impact studies on opium versus ATS, so it is not possible to tell exactly what consequences the shift from opium to ATS has had on Lao society and its economy.

What we now do know, however, is that deploying law enforcement to crack down on the drug industry is a huge gamble. History has taught us the iron law of prohibition: rather than just accepting defeat and dissolving itself, the drug industry is likely, not only to fight back, but also to adapt and reinvent itself by launching alternative drugs. And more often than not, these alternatives will be both more dangerous and more difficult to control than the drugs they replace.

The lesson for us all to take away is that when it comes to drug policy, law enforcement is an instrument that policy makers should use surgically and only very sparingly. As Dr. Alex Wodak demonstrated, there are far more effective ways of taking control over drug use and its consequences. 

An opium field in Phongsaly Provicne, Laos. Farmers build small camps adjacent to the opium fields, in which they stay throughout the opium growing season. Opium is mostly grown in very remote parts of Laos. Photo: Oudone Sisongkham (2015)

An opium field in Phongsaly Provicne, Laos. Farmers build small camps adjacent to the opium fields, in which they stay throughout the opium growing season. Opium is mostly grown in very remote parts of Laos. Photo: Oudone Sisongkham (2015)

Written by Marcus Baltzer

How should a drug offence be defined?

Criminal offences pertaining to illicit drugs are typically defined with reference to the quantity of the narcotic substance involved in the offence. In general, the principle is that the more drugs that are involved, the more serious the offence is, and the longer the corresponding prison sentence will be. I have, in practice, come across at least four problems with defining drug offences in this way:

  1. Many drug laws today incorporate the important principle that a drug user is not a criminal but a person who may be in need of help and care. Regardless of how much drugs a person is caught with, if that possession is a consequence of drug use, then the possession is merely a corollary or an extension of drug use. A common modus operandi used by dealers in East Asia is to demand that drug users take part in drug distribution as a way of financing their drug use. In such cases, the possession is effectively the culmination of the use of drugs. Nonetheless, because the law defines the offence based on the quantity of drugs the accused is in possession of, drug using distributors end up being prosecuted.
  2. If possession of drug quantities, which fall well within the range of what is reasonable for personal consumption, remains a criminal offence, then the criminal justice system will continue to unwittingly arrest, prosecute and convict large numbers of drug users, not on account of their drug use per se, but because they have been in possession of drugs. This creates a paradox whereby the act of using drugs is decriminalised, but as soon as the drug user takes possession of drugs an offence is committed for which he or she can be charged, convicted and sentenced. The consequence of this is that drug use is, in effect, re-criminalised, and the benefits of decriminalisation are largely forfeited.
  3. No drug is 100 percent pure. The laws typically refer to the weight of the pure substance. A package of heroin may weigh 100 grams, but if the purity of that heroin is only 40 percent, then the offence involves 40 grams of heroin, not 100 grams. Due to the lack of forensic technology and capacities in many countries, law enforcement agencies have faced challenges in accurately determining purity and the weight of the pure substance. Even where the analysis equipment is available, the necessary chemicals have to be continuously imported, which leads to frequent shortages. Often officials proceed on rough estimates, for instance, that one yabaa tablet is equivalent to 0.1 gram of methamphetamine. In other cases, only a small sample is tested. However, as UNODC notes, ‘the purity of methamphetamine tablets vary considerably…The actual weight may vary from tablet to tablet and batch to batch as they are produced under clandestine conditions. Considering tablet purity alone can be misleading as tablets of different weights contain different amounts of methamphetamine even if the purity is the same.’ Hence these approximations are unsatisfactory so long as the severity of the offence is determined exclusively with reference to the weight of the drugs involved in the offence.
  4. Experience from around the world suggests that the people who are made to perform the risky task of physically transporting drugs are typically not the people in charge of the operation. In other words, very often there is a negative correlation between the quantities of drugs a person is carrying and the person’s significance in the drug industry. This also means that it is ineffective to sentence couriers to death or to long prison terms, since they are very easily replaced. It has been argued that such sentences can deter people from taking on assignments as couriers, but regrettably the truth is that the drug cartels have had no difficulties recruiting couriers, even in the jurisdictions with the most unforgiving drug laws.

The solution to this conundrum might be to place less emphasis on drug quantities and instead pay more attention to the functions and motives of the people who work in the illicit drug industry. This would allow criminal justice systems to direct its resources towards the people who orchestrate, manage, and control the drug industry, instead of pursuing non-violent and relatively minor participants in the market.

So far, I have not come across any legislation in the world, which defines drug offences primarily with reference to the degree of control or responsibility that an accused person has in the drug manufacturing and distribution network. Is there any jurisdiction in which the severity of a drug offence is determined not by how much drugs a person is carrying, but by how much influence that person has over the trade and marketing of drugs? Is there a law which asks: is the accused a person who planned and managed drug operations, as opposed to merely a person who followed instructions or acted out of necessity? Is there a legal system which considers the motives of the accused – was the defendant’s engagement in the drug industry driven primarily by a profit motive, or was he or she involved mainly as a consequence of a drug use disorder?

If you know of examples of such legislative approaches, please send a note to Marcus Baltzer at mbaltzer@governancejustice.org

Getting the Police You Want

Practitioners associated with the Governance and Justice Group have been working on police reform in a number of South Asian countries. Because of a common historic legacy, the opportunities and challenges for policing are often similar in the region. Many reports have been written on this, but few have been able to explain the issues as well as this clip does. It narrates the story of police reform in India, describing how colonial-era laws continue to influence the functioning of the police as a force and not a service meant for the public. The video also explains, in about four minutes, how the recent Supreme Court directives might provide pathways for meaningful reform. Thanks to the Commonwealth Human Rights Initiative in New Delhi for making the video, and to Rupert Beford for sharing it. 

Women Behind Bars

Thirteen years after Sierra Leone's long civil war came to an end, its broken institutions and weak development indicators continue to impact on the lives of its people. Aside from the usual grim data, one statistic stands out: the number of female prisoners has doubled over the past three years. This is a trend we now see in many countries around the world. This film follows two paralegals, Marvelle and Victoria, as they navigate their way through the criminal justice system, helping us answer the question: why is the number of women in prison increasing?


'This Is Working': Portugal, 12 Years after Decriminalizing Drugs

By Wiebke Hollersen, first published in Der Spiegel

Twelve years ago, Portugal eliminated criminal penalties for drug users. Since then, those caught with small amounts of marijuana, cocaine or heroin go unindicted and possession is a misdemeanor on par with illegal parking. Experts are pleased with the results. 

Before he got involved in the global war on drugs, João Goulão was a family physician with his own practice in Faro, on Portugal's Algarve coast. Arriving in his small office in Lisbon, the 58-year-old tosses his jacket aside, leaving his shirt collar crooked. He looks a little tired from the many trips he's taken lately -- the world wants to know exactly how the experiment in Portugal is going. Goulão is no longer able to accept all the invitations he receives. He adds his latest piece of mail to the mountain of papers on his desk. 

From this office, where the air conditioning stopped working this morning, Goulão keeps watch over one of the world's largest experiments in drug policy.

One gram of heroin, two grams of cocaine, 25 grams of marijuana leaves or five grams of hashish: These are the drug quantities one can legally purchase and possess in Portugal, carrying them through the streets of Lisbon in a pants pocket, say, without fear of repercussion. MDMA -- the active ingredient in ecstasy -- and amphetamines -- including speed and meth -- can also be possessed in amounts up to one gram. That's roughly enough of each of these drugs to last 10 days.

These are the amounts listed in a table appended to Portugal's Law 30/2000. Goulão participated in creating this law, which has put his country at the forefront of experimental approaches to drug control. Portugal paved a new path when it decided to decriminalize drugs of all kinds. 

"We figured perhaps this way we would be better able get things under control," Goulão explains. "Criminalization certainly wasn't working all that well." Please download the full article here

João Augusto Castel-Branco Goulão is credited as being an architect of Portugal's drug policy established in 2000. He is currently chairman of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and has been a delegate at the United Nations Commission on Narcotic Drugs.

João Augusto Castel-Branco Goulão is credited as being an architect of Portugal's drug policy established in 2000. He is currently chairman of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and has been a delegate at the United Nations Commission on Narcotic Drugs.

'I believe that drugs have destroyed many lives, but wrong government policies have destroyed many more.'

That was Kofi Annan's conclusion a few days ago, in a speech before the World Health Assembly. For those of us who work at the intersection between drug policy and criminal justice, Mr. Annan's words are a reassuring sign that the reality, which we see unfolding on the ground here in South East Asia, is indeed being acknowledged at the very highest levels. 'In what other areas of public health do we criminalise patients in need of help? Surely it cannot be the job of the criminal justice system to prescribe remedies to deal with public health concerns. This is the job of public health professionals.' Yet users and low level dealers continue to be pushed through our criminal justice systems and into already overfull prisons. 

The UNODC Executive Director Yury Fedotov has said, 'the [drug] conventions are not about waging a “war on drugs” but about protecting the health and welfare of mankind.'

We should focus on that objective. Current drug policies are not achieving that goal. So the question is: what policies would enable governments and health authorities to counter and reduce the social and health harms that drug use can cause? Mr Annan offers three solutions: 

  1. Decriminalise drug use. Punitive measures do not work and put lots of people in prison where their drug use may actually get worse.
  2. Strengthen treatment services, especially in middle and low-income countries.
  3. Learn how to live with drugs so they cause the least possible harm. Even though we would like a “drug-free world”, this is not a realistic ambition.

These are the three headings of an evidence based national drug policy. But as Mr. Annan notes, 'sadly, drug policy has never been an area where evidence and effectiveness of policies have led the way. His full speech is available here.

Contributed by Marcus Baltzer

Somaliland: Where There Has Been Conflict but No Intervention

BY RAKIYA OMAAR AND SAEED MOHAMOUD 

Visiting Colombia in June, 2014, as part of the Africa-Colombia Dialogue of the Brenthurst Foundation, was an opportunity to reflect on the power of misconceptions. Even among conflict veterans, which the people of Somaliland have become, the prospect of a journey to Colombia provoked concern about safety and security. Talking to people in Colombia about Somaliland elicited expressions of sympathy for a far off place they knew very little about. This is unsurprising, given the fact that what they thought they knew was based on the recurrent head- lines about war and violence, bombings by al-Shabaab militants, famine and displacement in Somalia.

The distinction between Somalia and Somaliland is lost on most outsiders, but for the peo- ple of Somaliland, who made the decision to separate from Somalia in May 1991, it is both very real and immensely significant. It has meant living in peace for two decades – a peace brokered, implemented and sustained by local people. There has been neither a military intervention to end a conflict nor substantial political, military or economic engagement with the international community, focused as it has been on the mayhem in Somalia. 

Carry on reading by downloading the full article here


The Importance of Data and Information Technology in the Justice Sector

In her winning essay on improving foreign aid: ‘What goes up, must come down’: the role of open data in improving aid accountability Susannah Robinson looks at the role of open data with reference to the health sector. In his essay for the same competition, Adam Stapleton looks at it from the persective of the justice ‘sector’. What follows is an abstract and a link to download the full essay. 

When you go to a doctor because you are not feeling well, s/he will ask some questions and run a few checks before prescribing a treatment. The diagnosis is sometimes surprising: the original complaint turns out to be a symptom of something deeper and wider that needs a concerted course of treatment over time.

So too with criminal justice systems: the symptoms of dysfunction (the length of time it takes to process cases, low conviction rates, prison overcrowding etc) that shout for remedial action are seldom solved by attention to the particular institution alone because all need to function if the system as a whole is to work.

A determination of the appropriate course of treatment, requires first an assembly of data from across the system and benefits from wide consultation with practitioners and users. International aid programmes in the justice sector have at best been inconsistent in observing this basic step.

Advances in software development are on the way to replacing the narrative report with its dizzy-making pie-charts, bar columns and spiderweb graphs (outdated the moment it is published) by an inter-active, visualisation of the justice system that enables planner, practitioner or the public - at a click of a mouse - to see whether justice is being done.

This essay argues that the ‘data revolution’ called for by the report of the High Level Panel of Eminent Persons on the Post-2015 development agenda would transform planning and assistance in the justice sector.

Download Adam's full essay by clicking here.

Adam Stapleton led the first Justice Audit in Helmand Province in Afghanistan in 2010. Adam notes how 'rule of law advisers in the Helmand Provincial Reconstruction Team (PRT) cast doubt over the existence of any data worth the noun. Yet, this first ‘Justice Audit’ gathered reams of data by visiting the courts, police, prosecutors, prison, lawyers and other justice actors and listing the data under institutional headings. It established that even in a ‘broken’ justice system, there was data and furthermore the data was instructive.'  

Adam Stapleton led the first Justice Audit in Helmand Province in Afghanistan in 2010. Adam notes how 'rule of law advisers in the Helmand Provincial Reconstruction Team (PRT) cast doubt over the existence of any data worth the nounYet, this first ‘Justice Audit’ gathered reams of data by visiting the courts, police, prosecutors, prison, lawyers and other justice actors and listing the data under institutional headings. It established that even in a ‘broken’ justice system, there was data and furthermore the data was instructive.'  

Justice and development: the post 2015 agenda

In a series of short films, with artistic footage and dramatic music, the Open Society Justice Initiative is trying to make the case for the inclusion of ‘justice’ in the post 2015 era of aid and development. Are they convincing? 

To me, while all these arguments sound good, they fail to address one important aspect, one which every policy maker and ruler has to grapple with on a daily basis: the opportunity cost. A dollar spent on legal aid, is a dollar that cannot be spent on primary health care. A dollar spent on procuring arms cannot be spent on buying school text books. It is not enough to just explain why investing in a fair justice system is a good thing to do - one must show why it warrants a reallocation of resources from other priority areas, in what will always, in every country, be a limited budget. So far, if one only looks at budget allocations around the world, the advocates of spending on health and education, not to mention security (of the military kind) appear to have far more persuasive arguments. We know this because it happens to be one of the measures that the Justice Audit tracks. So, what is the best argument for why investing in access to justice justifies using money that otherwise would have been used to increase the number of hospital beds, to boost teachers' wages, or to build a new highway? 

Marcus Baltzer

Diversifying legal service providers in the socialist legal tradition

LA triangle.jpg

The Lilongwe Declaration on Accessing Legal Aid envisages a model where lawyers, who are often few and relatively expensive as service providers, are used as efficiently as possible. The Lilongwe model takes advantage of the fact that the category of cases, in which representation by a lawyer is necessary, is akin to the ‘tip’ of the iceberg of legal services. There are a number of other services, including alternative dispute resolution, advice and assistance, which can be provided by suitably trained non-lawyers, or paralegals, and which in many cases are for more effective than litigation in solving the problem. Adam Stapleton once developed the ‘legal aid triangle’ to illustrate the point. I believe diversifying legal aid in this manner is the only way to make it financially sustainable. 

One of the main hurdles that has often been encountered, around the world, is the reluctance within the legal fraternity to abandon the monopoly that lawyers have on the provision of legal services. In many countries, this monopoly is entrenched in law, and the legal profession guards it jealously. In practice, of course, paralegals are seldom a serious threat to the business interests of lawyers. People who can afford to retain private counsel will always do so, regardless of how many paralegals there are. When faced with the risk of losing our liberty, none of us would spare any expense in putting up a defence. Paralegals will inevitably only serve those accused persons who otherwise would not get any service at all. Still, the mere thought of other actors entering the legal services market, albeit at the very bottom end, where few lawyers wish to go, has been enough to make bar associations resist attempts to diversify legal aid. Stapleton notes how the legal establishment have viewed legal aid restrictively, as a service provided by a lawyer to someone who could not otherwise afford [that] service.’

This year, I had the opportunity to work a little bit in Asian countries with a socialist legal tradition, and one of the first things that struck me, when sitting in court, was how relatively diminished the role of the lawyer is in the criminal process. This is partly due to the inquisitorial principles upon which these systems are based, but there are also interesting historical and ideological factors. 

Post revolutionary legal reform was radical, but the basic analysis was in large part logical; the legal system of the ancien régime was designed to maintain the status quo and to safeguard the interests of the ruling class. Lawyers, judges, prosecutors - the whole legal establishment was, again probably quite accurately, deemed to be part of that ruling class, and thus unfit to serve the new revolutionary state. Many lawyers emigrated, others were put through re-education and some were even killed. Another factor was the Marxist idea that, as a society progresses towards Communism, through Socialism, there would be less conflict. Crime and disputes, the very phenomena that the legal system is set up to handle, are, according to Marx, primarily an effect of class tensions in a society; tensions arising from poverty, inequality and the desire to acquire and protect private property. Thus, as the classes would wither away along the march towards Communism, so would the need for the legal system. In other words, if only sufficiently quick political progress could be made, all those lawyers would soon be superfluous anyway. 

As we know, post revolutionary states eventually came to re-establish their legal systems, but it is interesting to note that for instance the Maoists in China were highly sceptical of any formal rules that might come to inhibit revolutionary transformation. They feared that laws could potentially constrain the social and economic development that they foresaw. For partly the same reasons, in the Lao People’s Democratic Republic, established in 1975, they waited until 1991 until they adopted a constitution for their new state. 

With time such worries gave way to the inclination to use legal arrangements to consolidate power and the achievements of the revolutions. The law, the legal system, and the lawyers began to make a gradual comeback. This was speeded up when market oriented economic policies were adopted, and as new commercial actors demanded more certainty and clearer rules. This reform is still very much work in progress, with China and Vietnam having come quite a bit further than Laos. 

And while lawyers in all three countries undoubtably have a more prominent role today than in the immediate aftermath of the revolutions, they do not have the formal monopoly on providing legal services in the way that we see in many other jurisdictions. The Criminal Procedure Law (CPL) in China, for instance, permits accused persons to entrust as defenders either lawyers, persons representing public organisations (often known as ‘mass organisations’), guardians, relatives or friends (CPL Art. 32). Non-lawyer defenders can be authorised by the People’s Court to ‘consult, make abstracts of or reproduce the indictments and technical appraisals of the case, and may meet and correspond with the suspect in custody…’ (CPL Art. 36). The procedural laws in Vietnam and Laos have similar provisions. 

I am not suggesting that criminal procedures in these countries are exemplary - they are not - in fact there are very legitimate concerns around due process, which have been well documented by a number of writers, academics and activists for several decades. However, as China, Laos and Vietnam are all now in the process of either building up or reforming their legal aid systems, their criminal procedure and legal practice codes offer rather unique opportunities to set up structures through which different service providers can contribute. In short, the laws here seem to lend themselves well to the Lilongwe model. Nobody questions the importance of having highly qualified lawyers to represent persons who are accused of very serious offences, but given the relatively low crime rates in all these countries, such cases will remain just the very tip of the iceberg. For all the other cases, the last ten years of implementing the Lilongwe Declaration has proven that non-lawyers with targeted and highly practical training, can provide very effective legal aid services, at a cost that is affordable even to some of most financially constrained governments in the world. 

Contributed by Marcus Baltzer