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