The case of the two Dutch drug policy commissions

An exercise in harm reduction 1968-1976

Introduction

In the unruly times of the sixties, when a series of different political movements had unsettled the classic paternalistic ruling style in the Netherlands, youth had suddenly started to dance to strange music on strange intoxications. Sons and daughters of doctors, bricklayers, judges and bank employees smoked a strange smelling weed called marihuana. According to the law this was forbidden, and according to mostly American sources, marihuana provoked all kinds of psychic disturbance. Even worse, marihuana hunger was unsatisfiable and led to addiction, not only to the weed itself but also to other illicit drugs like cocaine and morphine.

At the onset of marihuana smoking and drug policy in the Netherlands, the authorities of the law and of medicine spoke out against marihuana use and described it as a dangerous evil. (Maalsté, 1993)[1] However, numbers of (mostly cannabis) users increased as did the difficulties of law enforcement against them. This led to a growing debate in professional journals and in the daily papers about the merits of the conventional views on drug use. At the end of the sixties time was ripe for a typical Dutch solution of very difficult problems, the setting up of a Commission.[2]

This presentation will deal with two important commissions that were set up at the end of the sixties with a small overlap in time. First the composition of both commissions will be described, then their way of analyzing the problem and their recommendations, to conclude with a few observations of why these commissions have been so influential and successful from a harm reduction point of view.[3]

The drug commissions, 1968-1972

The first commission was set up in 1968 by the National Federation of Mental Health Organizations, a kind of umbrella organization. In the Netherlands, Mental Health used to be organized in a myriad of private and public-private settings along the lines of the different religious and political denominations. The previous year the National Federation of Mental Health Organizations had commissioned extensive research among drug users in the Netherlands[4]. It also set up a drug policy commission of which the broadly defined task was "to clarify factors that are associated with the use of drugs, to give insight into the phenomenon as a whole, and to suggest proposals for a rational policy..." (Hulsman, 1971).[5] The members of the commission included law enforcement officials, alcohol treatment experts, psychiatrists, a drug use researcher and a sociologist. The commission was chaired by Louk Hulsman, a professor of criminal law at the University of Rotterdam who was very critical towards the use criminal law in general. This Commission presented its final report in October 1971. However, drafts of the final report circulated before this date.

Also in 1968 the Under secretary of Health, a medical man himself and worried about the use of marihuana, set up a State Commission. After an unsuccessful chairmanship of an Inspector of Mental Health, it was chaired from 1970 by Pieter Baan, a Chief Inspector of Mental Health.[6] This Commission was asked "to investigate causes of increasing drug use, how to confront irresponsible use of drugs, and to propose a treatment system for those who developed dependence of these drugs".[7] The Hulsman and Baan commission had some members in common. In both commissions we find Herman Cohen (a researcher of drug use trained in medical sociology), Mr. Hartsuiker (a public prosecutor) Mr. Krauweel (the Head of the Jellinek Alcohol Treatment Clinic in Amsterdam) and Mr. Witte (chief of the Forensic Laboratory of the Ministry of Justice). In the Baan commission we find a few top officials of the Ministry of Justice, the Chief of Police of Amsterdam, a few psychiatrists and two sociologists who did not participate in the Hulsman commission. The final report of the Baan commission was presented to the Minister of Health in February 1972. Four years later, in 1976 the new Opium Law was adopted, including the articles that made decriminalization[8] of cannabis use possible, as advocated by the Baan Commission.

The Hulsman Commission

The report of the Hulsman Commission is the most theoretical of the two. It gave an analysis of drug use, the social mechanisms behind drug problems, the limited power of criminal law in these issues and outlines of a future drug policy for the Netherlands.

It analyzed drugs fundamentally from a heuristic point of view, in which the pharmacological properties of drugs were integrated in set and setting, mostly conceptualized as the 'drug scene'. Herman Cohen was responsible for this innovative approach. He was the only one who had been researching drug use empirically from within, as it existed in the Netherlands. He was well acquainted with the international social scientific literature on drug use. This gave him a substantial authority. About opiates, the Hulsman report writes that these substances may give physical addiction. But also:

"Physiological, psychological and sociological factors may keep a user connected to opiates, and if one detoxifies a heavy user, one does not have a 'normal' individual but an unhappy ex junky, who maneuvers with difficulty in a huge emptiness." (p. 16).

The Hulsman report examines different risks associated with different substances as they occur in different use patterns. As its conclusion, the Hulsman Commission states that:

"The different drugs have the risk in common that one does not restrict oneself to limited use, but that one evolves to long-lasting and intensive use. In that case they are harmful" (p 19).

This insight, that illicit drugs can be used in a controlled and limited way, was just as unconventional in those days as it is now. Furthermore, the report shows the negative effects of marginalising drug using sub cultures. It also describes imprisonment of drug users as conflicting with the intended effect of separating the user from the heavier types of drug using subcultures. As a clarification of this point the Commission quotes Herman Cohen that there is no evidence for a "stepping stone" like sequence of different drug use. However, becoming a member of a (marginal) drug scene or drug use-sub culture may make a cannabis user familiar with the existence of other drugs and other patterns of use. Here we see the roots of an important concept in present-day drug policy in the Netherlands: separation of the demand and the supply sides of different drug markets. The basic assumption underlying this concept is that one kind of drug user (of e.g. heroin) will 'contaminate' another kind of drug user (of e.g. cannabis) when the two kinds of drug use are forced into one marginalised user sub culture because the markets of two drugs can only jointly exist in one criminal arena.

About the use of State power, the Hulsman report says that

"the State can not have a disapproving point of view only on the ground that a certain behavior is not fitting in the concepts of life of those who carry State power" (p.40).

"If an individual makes a choice that may be dangerous to herself as a private person (e.g. someone refuses blood transfusions) no one should deny her this right. Even when such behavior might endanger others (e.g. parents who do not allow their children to be vaccinated even if a danger for infection exists) the right of a personal choice will not be denied" (p.42).

Here the Hulsman Commission refers to a dearly won right of certain religious groups in the Netherlands to refuse vaccination for religious reasons.

About law enforcement against drug trafficking, the Commission states that once on this road, police forces will have to be

"constantly enlarged to keep pace with the never ending escalation" (p. 49). "If we opt for criminal law as the central means for opposing drug use, this option is inadequate and therefor also extremely dangerous. Time after time it will show that the means will fall short, upon which those who favor punishment will plead for increase of law enforcement, until it will be amplified a hundred fold from the present situation. ........ This will boost polarization between the different parts of our society and can result in increased violence" (p. 51).

The Commission says that full decriminalization is the right policy in the long run, but this should be done gradually.

The discussion of the 70 pages of the Hulsman report will be finished by summarizing its policy recommendations for the short term:

1. Use of cannabis and the possession of small quantities be taken out of criminal law straight away . Production and distribution should for the time being remain within criminal law but as a misdemeanor.
2. Use and possession of other drugs will remain in the sphere of criminal law, as a misdemeanor, but in the long run has to be liberated completely.
3. Those who run into difficulties with their drug use should have adequate treatment institutions at their disposal.

An interesting detail of the proposals for the short term is that production of non cannabis drugs has to remain within criminal law as an offense. The background of this conclusion is not provided. It likely reflects the perspective of the Commission on gradual long term decriminalization of all drug use.

The report strongly pleads for stepped up research efforts in this field, and the creation of a system for dissemination of information about drugs, and drug treatment evaluation.

The Hulsman report still reads as a useful, rationally argumented and humane blueprint of general drug policy principles. It fully deserves translation into English.

The Baan commission

The report of the Baan commission gives a short overview of risks that are associated with the use of drugs, and divides these risks into physical damage, psychological damage and social damage. Quite consistently the Commission includes alcohol and tobacco in its overview.

The report describes the social aspects of drug use and small drug trade in the Netherlands, showing that the special characteristics of youth culture and sub culture are important determinants of the functions drug use have. If society, according to the Baan report, stigmatizes deviant behavior by punitive measures, the probability of intensification of this behavior is a serious danger. This will initiate a spiral that will make return of the individual to a socially accepted life style increasingly difficult (p.26).

Further the Baan report discusses research results that counter hypotheses of drug use stemming from social misery or pathology. It literally quotes the research finding of a Dutch sociologist that drug using youths

"not only read more about drugs but also read more about other things than drugs: art, politics, science and philosophy than youths from the two control groups" (p.27).

Another topic the report deals with is the epidemiology of drug use in the Netherlands, and the demographic characteristics of users. It concludes that much drug use is short lasting experimentation by young persons. Differences between metropolitan and non metropolitan areas are quickly diminishing and are expected to disappear completely. According to the Baan report, cannabis use does not lead directly to other drug use. However, the report quotes an American source in showing that laws that declare cannabis an illegal drug, will promote contacts between cannabis users and those who use heavier substances. This may lead to multiple drug use. Like the Hulsman report Baan proposes the separation of drug using subcultures which has a particular social scientific perspective at its base.[9]

In relation to law enforcement the Baan Commission quotes a 1970 report by the Public Prosecutors Office in which criminal law is described as inadequate towards drug users. Users will be served better by drug information and prevention efforts than by prosecution.

One of the longer chapters of the Baan report is dedicated to cannabis, because, as Herman Cohen remarked 25 years later

"the Commission was firmly dedicated to ending this mess of youngsters going to prison for a few grams of hash".[10]

The report describes the use of cannabis products as relatively benign and the health risks as relatively limited. If sometimes unusual behavior of cannabis consuming youth is seen, this is more considered a result of specific sub cultural norms and ideologies, than of pharmacology. But, cannabis use when driving or when operating machines in factories, is "not responsible". "Consumption [of cannabis] without risks for the individual or society can only take place during recreation" (p. 59).

The report proposes to design a 'danger scale' of drugs, in which concepts like 'soft' use and 'hard' use of a drug are incorporated. The Baan Commission adds as a comment that still is as unusual as to the point: a danger scale that only takes pharmacological properties of a substance into account "can not be an operational guide line for the State" (p. 64).

Such a scale should divide drugs into those with 'acceptable' and those with 'unacceptable risks'. The Commission states explicitly that controlled use of drugs is possible. Basis for State intervention should be to try to prevent the use of those drugs that present most risks. Since opinions on risks are so diverse between experts, this topic should be further investigated.[11]

For cannabis use and trade a number of options are discussed. A suggestion is given to look at cannabis trade below a quarter of kilogram as a misdemeanor only. The report discusses legal supply of cannabis as a means of preventing the development of cannabis user sub cultures that will reinforce `hard' patterns of use, and multiple drug use. But the Commission considers this as against the spirit of the 1961 Single Convention on Drugs.[12] Although it proposes to try to change the Single Convention on this issue (of cannabis use and trafficking) it considers waiting for uncertain treaty changes as too impractical for the short term goals the commission wants to reach.

About drugs other than cannabis, the Baan report has very little to offer. In spite of its remarks about the many complexities and uncertainties of rating the pharmacological and other potential dangers a substance, it treats all other drugs than cannabis as substances "with unacceptable risks". (p 67) Trafficking these drug will have to remain an offense.

However, for users of such drugs "confrontation with criminal law is not an adequate approach" (p 68). For the time being, the Commission proposes to look at use of these drugs as an offense, with complete decriminalization as a policy goal from the point in time on that a good treatment system has been created. Until then criminal law should be used as a tool for maneuvering heavy user-patients into treatment.[13]

Why did the Baan report succeed in shaping Dutch Drug policy?[14]

To look for an answer to the question: "why did the Baan Commission (backed up by the more radical Hulsman report) succeed in shaping Dutch Drug Policy", we have to perceive the Baan Commission in the setting of the time in which it was asked to perform its task.

Three possible factors could be relevant for an answer to this question:

1. Hulsman gives an important clue where he draws attention to the period of his employment at the Ministry of Justice. In 1959 he wrote a memo for the Minister of Justice about the draft Single Convention that had been sent to the Dutch government for comment. He states that the harsh law enforcement approach of the draft was perceived as "counter to our criminal law policies at the time". (Maalsté, 1993, p140-141). At the end of the fifties but certainly in the sixties official policy was to restrict the reach of law enforcement, to prevent law breaking by adequate social policies, and to keep law breakers out of prison as much as possible. We should not forget that in those days, little enthusiasm for expanding the realm of criminal law was a mainstream ideological background to the drug policy issue. This means that when the Hulsman and Baan Commissions were writing their reports at the end of the sixties, all participating high officials of the Ministry of Justice plus the Public Prosecution did not discover the importance of diminishing the role of criminal law, they simply applied it.

2. The second important aspect for understanding the relative success of the policy recommendations by Baan is the social and publicity climate around cannabis use in that period. In 1969 the national and regional papers had published conspicuous articles on the results of Herman Cohen's survey of about a thousand drug users in the country. His conclusion was that addiction is a rare phenomenon, that most drug use occurs with persons of a relatively high level of education, and that (the threat of) imprisonment is the most harmful of all consequences of drug use.[15]

   The conservative 'Elsevier', a nation wide weekly, reported in July 1970 extensively on drug use behavior of a large crowd at an open air pop concert in Rotterdam.[16] It interviewed treatment experts present at the site to deliver assistance when needed, and a lot of people associated with drug policy, including the leading MP's of the public health and justice sub commissions in Parliament. The conclusion of all these interviews was that drug use is not a problem in the Netherlands, that cannabis users are not 'addicts' but nice and controlled folks. An interesting detail of this article is that both police spokespeople and public prosecutors seem to anticipate more formal changes to be expected in liberalizing drug legislation.

   During the Parliamentary discussions on the Budget in 1970, a Member of the large Labour Party confronted the Under secretary of Public Health with the pressing question that he "uses all his influence to prevent imprisonment of any drug user". Moreover, the MP said: "Available research results show that marihuana and hashish do not belong in the Opium Law".[17] "We request the Under secretary to bring the topic of cannabis legalization into consultation with the Ministry of Justice".[18]

   At the time Mrs. Padt-Jansen asked these questions the Baan Commission had just been expanded to its final composition and was working on its final report.

   These quotes serve to illustrate that for many in the country cannabis had to be lifted out of the sphere of law enforcement. The two commissions did not have to invent this, exactly as was the case with a non law enforcement approach to social problems in general.

   During the preparation of the new Opium Law, after the report of the Baan Commission had been presented to the Cabinet, the Minister of Justice (a young law professor and progressive Catholic, Prof. van Agt) found the Baan report too conservative! Prof. van Agt had even written decriminalization of drugs into the party program of the Catholic Party.[19] The reason that the Cabinet in which he took part accepted increased criminalisation of non cannabis drugs was, according to Hulsman, the Arab oil boycott of the Netherlands.[20] This made the Netherlands so dependent of neighboring countries for its oil supply, that strong pressure of the Ministries of Foreign Affairs and Economic Affairs forced van Agt and the Cabinet to keep drug use within the realm of criminal law and to increase non cannabis drug penalties from a maximum of four years imprisonment to twelve. If the new Dutch law in this area would be too unacceptable to Germany and the UK, they might reconsider their assistance with oil deliveries to the Netherlands. This alleged fear, based on an unforeseen complication of international oil politics, had nothing to do with other legal constraints as found in the Single Convention of 1961.[21] This means that decriminalizing cannabis use and retail selling, considered by all as the most important function of a new Drug Law, was bought for the price of a more severe criminal law involvement for other drug trafficking. We should not exclude however that paying this price was understood as an unimportant cosmetic move. Non cannabis drug use was, in the early seventies, not a problem. Then why not use a little cosmetics, to make the decriminalization of cannabis a bit more palatable for foreign (and possibly domestic) opponents?[22]

   The main purpose of remodeling the Opium Law was not to introduce a fundamentally different drug policy [perceived as impossible for the time because of existing global agreements], but to satisfy then existing needs to keep cannabis users out of prison. Keeping law breakers out of prison as much as possible already was accepted social policy. Only a modest change, official discrimination between "drugs with acceptable risks" and those with "unacceptable risks" was needed to enable the new Law, adopted in 1976, to fulfill that purpose.

3. A possible third reason for the success of the two Commissions has to do with the limited experience in the Netherlands with prohibitive drug policies.

   Drug policy experience was not only limited, it was also part of a distant past. In the Dutch Indies a profitable and highly regulated policy was developed on opium for smoking. In this State run monopoly opium licenses were sold to the highest bidders (mostly Chinese) who were then allowed to sell opium to all who wanted it.[23] Later, Chinese immigrants in the Netherlands were allowed to smoke opium till well into the sixties, only in their own house or opium dens. This custom went undisturbed and practically unseen by the alcohol culture around them. For the few explorers during the sixties into the unknown worlds of opium dreams (students, artists and weird university professors) opium was cheap and easy to be had from this enclave.

   The global opium treaties that slowly developed since 1911 did not stop the Netherlands to continue their opium policy within the Dutch Indies, until the Japanese invaded during WW II . The American Government forced the Netherlands to promise to cease its Opium regime in the Dutch Indies under the threat that no support would otherwise be given to ousting the Japanese from the Dutch East Indies.[24] When global treaties were designed from 1911 on and later, The Netherlands cooperated by signing treaties on cocaine, cannabis, opium, heroin and morphine, but not because drugs were a problem for them. Drugs had never been experienced as a problem within the Netherlands because their use was almost unknown: opium use in the colonies was considered well confined to the locals and at most a foreign vice. Therefore the Treaties were signed because of opportunism and the requirements of global diplomacy but without any internal national motivation behind it. In contrast with other countries, like the UK or the USA, the Netherlands had never been forced to look for solutions to (true or perceived) local or national drug use epidemics, with the exception of alcohol. In the field of alcohol, prohibition was considered but never adopted. This implied an absence of prohibitive drug policy models and a presence of a certain 'naiveté' in these matters. This naiveté remained till into the Sixties and allowed drug policy inventors in the Netherlands to look at foreign drug policy ideologies from a detached perspective, certainly as far as cannabis was concerned. The same absence of experience may be at the base of the relative lack of concern for the rather 'theoretical' law enforcement measures in relation to non cannabis drug use proposed by Baan. We have to remember that in the late Sixties such use was even more uncommon than later, in the Seventies and Eighties.

In summary: at the time of the Baan report, it was mainstream thinking that criminal law should be kept as restricted as possible. This was an innovation that was made before drug legislation had to be adjusted. This considerably eased the way for decriminalizing cannabis use, a drug policy goal that had already made itself felt before the Commissions started their work. A 'proper' sacrifice was made to foreign and domestic opponents, by increasing maximum punishment for trafficking of `drugs with unacceptable risks' to the atypically high figure of 12 years. This increased punishment probably was more a cosmetic move than a choice grounded in principle, the more so since non cannabis drug use was not a problem at the time or ever before.

Relevance of the Commissions for present day drug policies in the Netherlands

The reports of the Hulsman and Baan commissions did what was expected of them. The underlying arguments (e.g. for not arresting individual drug users[25] and the counter productive potential of criminal law in this area) were so solid they stand till this day.

Somehow the Dutch practice of not arresting individual drug users - unless they cause social nuisance or show criminal behavior- has become so normal, that the reasons why it originated went forgotten.[26]

In the period after the two Commissions prepared their reports a lot has changed in the Dutch drug scene. Heroin was introduced in 1972 after the police stopped opium sales, and became the focus of some Surinamese immigrants. Heroin also became the drug of a small part of Dutch white youth who found no link with the highly regulated labor market in this country. Like in other industrial countries heavy heroin use led to social downfall and marginalisation. Heroin use prevalence has always been very low, and the proportion of street dwelling junkies among heroin users is low as well. However, their conspicuous presence has etched a highly undesirable image of heroin on the public mind.[27]

Nonconspicuous and occasional use of opiates (mainly heroin) simply does not exist in both public and expert opinion, although it does occur certainly in Amsterdam.[28]

Cocaine, introduced in the early seventies as well, and peaking in the period 1982-1985, is now an established albeit not widely used substance in the Dutch capital. Seven percent of the Amsterdam adult population over 12 years has used this substance (Sandwijk et al 1995).[29] MDMA or XTC appeared in the mid eighties.

Cannabis use has almost 'normalized' in the Dutch cities in the sense that it is culturally more or less accepted, and certainly no longer taboo. High quality figures for cannabis use prevalence in the Dutch population are non existent except for Amsterdam.[30] In the Capital, life time experience with cannabis is highest in the age cohort 20-24 years (50%), and 29% in the adult household population- 12 years and older- as a whole (Sandwijk et al 1995).[31]

The heritage of the two Commissions is most strongly felt in the cannabis scene. The public fears about cannabis are substantially lower in the Netherlands than elsewhere although , as for instance in the case of legalized abortion, fractions of the population deplore our present policies.[32] The theoretical notions and the scientific analysis of drug use as made in the report of the Hulsman Commission has remained relevant. What we need is to reflect on these notions and re- apply them to today's drug situation.

Thanks to the two Commissions and the Dutch system of accessible health care and housing for all, modern drug policy discussion in the Netherlands has been deeply influenced by 'harm reduction'. Enabling the notion of harm reduction to play a role in drug policy is an important step away from the drug-political fundamentalism of the bureaucracies that expand, amplify and control the obsolete UN. drug treaties. What is needed however is more emphasis on community drug use data that show that for most persons drug use, as is the case with alcohol, is a matter of choice and leisure, not of compulsion.

The task for progressive politicians is to help find a way to convince society to consider drug use as a choice people are free to make and to reform the function of the State in the field of drug policy as a provider of harm reducing conditions. This task existed before in such diverse issues as traffic regulations, abortion, divorce, alcohol distribution or - many years ago - religious freedom.

References