Negative consequences of control in the enforcement of current Norwegian law regarding cannabis.

A literature review and human rights complaint by Karl Nafstad

Snarveier

Introduction

The nonprofit drug-policy organization Normal Norge (Norwegian Organization for Reform of Marihuana Legislation) has received funding from the Norwegian Directorate of Health to produce a human rights complaint to the United Nations Office of the High Commissioner for Human Rights on the basis of the negative consequences of control from the enforcement of the Norwegian ban on cannabis. This report provides the basis for that complaint.

For the sake of thoroughness and to glean and provide a better overview of the situation, the present paper is constructed as a systematic literature review of all relevant academic material on the cannabis-related consequences of control in Norway, and follows the suggestions laid out by Urinboyev, Wickenberg and Leo (2016) and Hart (1998) in producing a search term protocol to capture all articles relevant to the topic. Searches were done in both English and Norwegian. Non-relevant material was discarded, and secondary searches performed based on the findings. A critical human rights analysis and perspective is employed throughout. Finally, a complaint is issued based on the findings from the literature and an outline of recommendations is provided.  

Problems and limitations

There is little systematic research on the consequences of enforcement of legislation relating to cannabis in Norway. (1) The extant literature is marked by certain shortcomings and difficulties, making a comprehensive overview of the actual situation in the field suffer.

Some of these are explicitly acknowledged in the literature as features of the state of knowledge in Norway, whereas others are intrinsic to the field itself. There is, nevertheless, salient information implicating the necessity and viability of a human rights perspective that can be gleaned from the studies that do exist, although a fair amount of conjecture and reliance on inferences from international sources are involved. (2) Some of the main problems arising from the literature are evaluated here, along with certain implications for human rights questions relating to the enforcement of cannabis legislation in Norway.

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That Norway is a small country and only relatively recently has started paying attention to issues relating to the regulation of cannabis (3) can only account for a portion of the dearth of research here. Much scholarly attention has been given the harder drugs such as heroin, and the situation for heroin users, (4) yet academic research on cannabis from social scientific and legal perspectives remains scant. (5) One consequence of this is that much of the research that does exist is forced to rely on international experience and studies. (6)

Although an international perspective is typically a strength in academic research, as elsewhere, without comparable national studies we simply cannot know whether such knowledge is applicable domestically. This is particularly true for a field marked by as much national variation as is the enforcement of drug legislation.  

Another main issue is that there is no cannabis legislation as such in Norway. Although instructions specifically concerning the prosecution of cannabis are occasionally provided by the judicial and legislative branches, (7) cannabis is regulated along with the other illegal drugs according to two main legal provisions: legemiddelloven (8) § 24 and straffeloven (9) § 231 (10). 

Following from this, there is no official disaggregated data on prosecutions and convictions by drug type, nor is there a direct way to ascertain whether enforcement follows the instructions from other branches of government. Available cannabis statistics are thus largely based on assumptions gleaned from other sources. (11)

This uncertainty due to lack of disaggregated data is endemic to the field of human rights, (12) although more prevalent in societies with less developed bureaucracies and poorer human rights records and means that there is much that we simply do not know for certain about the field. To the extent that the ramifications of cannabis control is indeed a human rights issue, Norway is failing to live up to its obligations to provide these basic necessities of knowledge. Along with this is the uncertainty arising regarding cooperation between branches of government. At the very least, Norway is a long way from making readily available the standards for research in this field as presented by Bretteville-Jensen and her colleagues (2017). Furthermore, this failure to separate the illegal drugs in the penal code may also run up against legal principles, such as proportionality, although this will be explored in more detail later. This failure to separate types of drugs in the legislation has the predictable effect of failing to separate types of drugs in the applicable literature. (13)

Although this is a truth with some modifications, (14) even relevant research specifically on cannabis is hampered by this lack of data where official data must necessarily be supplemented by conjecture and outside sources. (15) Much research on drug policy, legislation and enforcement, although often implicitly slanted toward the heavier drugs, does not explicitly consider types of drugs separately, although there is reason to believe that official responses and enforcement may vary considerably depending on type of drug. (16) Open drug scenes centered around heroin may, for instance, differ significantly from the so-called “cannabis culture” of private markets. (17) Thus, we should expect its repression to similarly vary.  Nevertheless, one earlier study (18) estimated that as much as 3/4 of drug-related prosecutions and sanctions involved cannabis exclusively. Even though this proportion may have been reduced in more recent times (11) where non-specific statistics are employed below, we know they disproportionately concern and affect cannabis-related legal infractions. (19)

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To illustrate: one meta-study exemplifies these twin issues well, in this case suggesting that intensified enforcement of drug laws increases the risk of drug-related violence. (20) These findings are, however, largely US-based, and do not differentiate by type of drug involved, making the applicability for the present focus tenuous; how similar are these countries’ drug trade and law enforcement traditions really, and is not the market for cannabis marked by significantly lower levels of violence and conflict? (21)

The mechanisms behind these effects may nevertheless be transferable to a Norwegian context, and the cannabis market, with some exceptions, is unlikely to be wholly isolated from the broader drug cartels. Another example involves claims that enforcement of cannabis laws may be ethnically biased based exclusively on the American or British experience, (22) where these countries’ historical race relations are marked by idiosyncrasies not easily transferable to other historically determined national contexts. This does not mean that Norwegian enforcement is not ethnically biased, but, as with the former example, it does illustrate the need for caution when applying international sources or non-specific drug data

Typical measures of validity and reliability are also necessarily easily compromised by the nature of the field, where randomized experiments are largely unfeasible by ethical or legal considerations. (23) This obviously does not mean that valid and reliable replicable research is rendered impossible in this field, but it does mean that empirical studies are vastly outnumbered by strictly normative ones. (24) Although the latter can well raise important theoretical considerations, their applicability is nevertheless limited for present purposes.

A related but distinct problem is the disconnect between what the research tells us and what policies are enacted, where the chasm has traditionally been wide, although this is a field in transformation. (25) This, however, is considered more a consequence of policy, legislation and enforcement, rather than a problem of the literature itself. As such, it will be treated more in-depth later.

Consequences of Control 

Discrimination: ethnic, class, gender

A common thread running throughout many of the studies, is one of discrimination. Although most often implicit, direct and indirect discrimination in the enforcement of drug laws and its consequences is also occasionally treated explicitly. (26) Race, class and gender – as well as their interaction (27) – are here, as is often the case, the main categories, although sometimes in somewhat unexpected and surprising ways. A fourth category of national origin does also seem integral to disparate police enforcement, although this is, as we shall see, deeply enmeshed with the broader theme of ethnicity.

The principle of non-discrimination is a cornerstone of human rights. (28) Beyond its intrinsic worth in protecting people from discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, (29) this principle is integral to the very idea of universal human rights; if rights are systematically applied (or violated) in a discriminatory manner, they cease to be both universal and rights that belong to a person for simply being human. As such, it becomes imperative for present purposes to look at whether legislation relating to cannabis in Norway is implemented and enforced in a non-discriminatory manner.

In the present context, ethnic minorities primarily refer to first- or second-generation immigrants or asylum seekers from Africa and Asia. (30) To put it bluntly; black and brown individuals, the ones you may readily visually identify as ethnic minorities in Norway. As it turns out, these are also most often young and male. (31) Sandberg and Pedersen’s (2011) sociological survey of ethnic minority cannabis dealers in an open drug market in Oslo is, along with Kuvoame’s (2015b) related, though somewhat more tangential, study, perhaps the most thorough ethnographic account and introduction to the topic in this country. Theirs is a story of marginalization and alienation, and, although the racism experienced by their

interviewees are self-reported, this nevertheless contributes to the creation and adoption of a self-defined gangster image which, in turn, may lead to further criminalization. (32) Kuvoame’s (2004) earlier study of a similar environment confirms these experiences, noting the added attention afforded young ethnic minority males for cannabis dealing. (33) Police frequently target these over ethnic majorities. These stories and structures also closely comport with Nafstad’s (2011) description of police targeting of obviously ‘foreign’ drug dealers in the so-called open drug scenes, while white Norwegians in the same situation may be more readily passed by. In fact, this study suggests that as many as 2/3 of those arrested for selling drugs were undocumented or asylum seekers, with a majority of these being North or West Africans. (34) This leaves the number of ethnic minority Norwegians arrested an open question, with a strong suggestion of overrepresentation.

As fluctuations in criminal statistics concerning drug-related infractions are largely independent of actual variations in the underlying trends, these statistics almost exclusively reflect police priorities in this area. (35) This is strengthened by the fact of the targeted operation aimed at foreigners in the drug scene, a collaborative effort between the police and immigration authorities. (36) As such, these high proportions of arrests and sanctions of ethnic minority males are willed and intentional. Even if the intention is targeting based on national origin – a so-called “crimmigration” attempt at removing unwanted foreign nationals through an overlap of criminal and immigration law – one may not readily tell citizenship status simply by looking at a black or brown individual (nor necessarily their potential involvement in cannabis sales). The result is stigmatization and criminalization of whole groups of minorities.

The ethnically based discrimination continues from policing into the judicial system, where accused drug dealers of ethnic Norwegian heritage are more likely to be seen as needing treatment whereas minorities are seen as belonging to organized crime. (37) Berg and Audestad (2006) further suggest that ethnic minorities are less likely to enter and receive care and rehabilitation systems, and this is at least partly due to a distrust in the system. Kuvoame (2004, 2015a) confirms this distrust, basing it partly on stereotyping by, and negative experiences, with social services and others. Although this distrust obviously may stem from many sources, experienced and observed discrimination by police and other authorities certainly does little to alleviate this distrust. (38) As such, the ramifications reverberate down to other areas, and here compromises the right to care and rehabilitation. Minority women are even further marginalized, being almost completely absent from these services. (39)

Based on interviews with 60 incarcerated drug dealers, Shammas, Sandberg and Pedersen (2014) find that marginalization processes are key to understanding their criminal careers.

These individuals typically exhibited poverty, low educational attainment and poor attachment to the job market, thus supporting Neumann and Snertingdal’s (2010) assertion, taking into account the link between cannabis usage and distribution, that problematic cannabis usage more frequently occurs among young men in poor areas with little education and job market participation. The vast majority of sanctions for cannabis use and possession in Norway involves a fine. For the large segment of those sanctioned who belong to lower socio-demographic strata, a monetary fine is experienced much more severely than for the minority of affluent cannabis users who are caught. (40) Add to this that drug users in prison face higher risk of both morbidity and future incarceration upon release, (41) we can infer a chain of negative consequences disproportionately impacting young black and brown males.

In his prison study, Ødegård (2008) finds cannabis to be the most frequently consumed illicit substance in a six-month period prior to incarceration, with 51% of inmates reporting such usage. The majority of users, as well as high-frequency users, are young males under the age of 30. These also account for the population with the highest number of sentences received and the longest time served in prison. (34)

Concomitant usage and sale occur much more frequently with cannabis than with the other illegal drugs, i.e. cannabis users are often involved in sales and distribution, and the lines separating these are much more fluid. (42) Cannabis is also the most widely used illegal drug in Norway, reaching most layers of society. (43)When enforcement against sellers of cannabis is as heavily skewed toward certain demographic groups as suggested here, the result is a justice system which systematically leaves large groups of users unpunished while other, more marginalized groups bear the brunt of control measures. Basic concepts of fairness and justice are thus challenged. This picture of discrimination based on race, class and gender – and their intersections – does indeed seem to lend strong support to Ervik’s (2014) suspicion that marginalization, exclusion and poverty experienced by users might be related to the consequences of control. To put it even more bluntly, we are “punishing poverty and deprivation” (44)

Stigmatization, marginalization, criminalization

Although Sandberg and Pedersen (45) emphasize the unique self-selected culture surrounding cannabis and its use, another related trend we can read out of the literature, is that the Norwegian enforcement leads to stigmatization, marginalization and further criminalization – often of already marginalized populations. Drug crimes comprise the largest category in the justice system. (46) Bukten and Lobmaier (2013) find that 60% of inmates in their study used illegal drugs prior to incarceration, cannabis (along with amphetamines) being most common, and that the risk of reincarceration is higher for users.

In a longitudinal study of more than 1000 teens and young adults, Pedersen and Skardhamar (2009) find that early cannabis use is indeed specifically associated with later criminal charges. These charges are, however, almost exclusively drug-related. This means that the prohibition on cannabis, and its enforcement, is directly related to the criminalization—and recriminalization—of relatively large groups of people, including the implications and problems that arise from having a criminal record and the threat of further reincarceration. These problems include both professional and social consequences, personal costs and even certain higher education and vocational choices becoming precluded. (47)

Pedersen and Skardhamar (2009) succinctly state that the fact that a considerable proportion of adolescents and young adults in Norway may come into contact with the penal system because of their involvement with cannabis must…give rise to concern. There is much to indicate that such penal reactions do not prevent young people continuing with cannabis use; on the contrary, such reactions may have a real, detrimental impact on their lives. (48)

This should be read in light of Art. 33 of the Convention on the Rights of the Child, (49) particularly as concerns the prevention of the use of children in drug trafficking, as this contributes to a further process of marginalization and alienation which, in turn, may lead minors to become deeper entrenched and involved in illegal drug markets and, in turn, gang-related activities as mainstream opportunities increasingly become precluded.

Analyzing the public debate on cannabis, Haug (2012) also finds stigmatization, criminalization and social exclusion to be the greatest harms associated with prohibition. She also points out the problem of this out-group becoming too amorphous as the number of Norwegian cannabis users is increasing, something also touched upon by Pedersen (2010). Any presumed deterrent effect is diminished in inverse proportion to the growth of the group, while the public’s general sense of justice may be challenged by the criminalization of large groups of people. Trust in the justice system suffers as a consequence. Although individuals developing a problematic usage of cannabis typically already exhibit characteristics of social marginalization and exclusion, the marginalization of cannabis users largely relies on involvement in, and complications arising from, the illegal economy associated with cannabis, (17) often resulting in further stigmatization.

Even among incarcerated higher-level dealers and traffickers, there is a great proportion of individuals more readily characterized as suffering from heavy social marginalization rather than being professionals in organized crime. (50) The heavier sentences received by these individuals will presumably do little to alleviate their marginalization.

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New Psychoactive Substances

Issues associated with so-called new psychoactive substances (NPS) are also of concern here, not only as the majority of these substances belong to the category of synthetic cannabinoids (51) as well as the association arising from a full 100% of users in one study having previously tried cannabis, (52) but because the motivation and rationale for their use and growth may be related to coercive control and enforcement of the ban on cannabis. The explosive growth in NPS is tied both to low price, easy availability via the internet and, being known as ‘legal highs’, the somewhat legal grey-area they belong to. (53) New varieties are continually developed and discovered, (54) and their contents are often uncertain and potentially dangerous. (55)

Although the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) cannot say whether there is a relation between the prevalence of NPS in their member countries and those countries’ other drug policies, (56) it does seem that the motivation for their use can be, at least in part, tied to those policies and their enforcement. Although the price and availability mentioned above increasing the attractiveness of NPS in comparison to cannabis may arguable be a function of the ban on cannabis, the low legal risks and difficulty of detection associated with these substances are emphasized as a rationale among users, particularly amongst the youngest and least experienced users. (57) Young boys between 16 and 30 are indeed the most prevalent users in Norway. (58) The difficulty of detecting these substances in drug tests may draw young people on so-called drug contracts for cannabis use toward these synthetic alternatives. That the NPS may be far more volatile, uncertain and dangerous than the counterparts they are replacing is, of course, a cruel irony.

The Right to Drive

A potentially important issue only briefly touched upon in the literature concerns the right to drive. Skudal and Druckrey-Fiskaaen (2015) focus on how the right to drive is handled with regard to patients referred to Specialist health services, but many of their points are instructive for the larger debate. The right to drive can be revoked administratively, without sentencing but subject to legal appeal, based on consideration of the general sobriety of the person involved, although Lysne (2017) questions whether there is an actual penal element in the practice based in preventive drug policy. The latter would lie outside the scope of the law. (34)

Having actually operated a motor vehicle while intoxicated is not a requirement for revocation. Doctors, including psychologists and opticians, have a duty to report suspicion of a general lack of sobriety to the authorities, and this duty, Skudal and Druckrey-Fiskaaen (2015) point out, trumps the principle of confidentiality, although many are not fully aware of this duty. In their study, cannabis users, among users of other illegal drugs, were far more likely to have lost their right to drive than those in treatment for alcohol problems. This may be attributed to the lessened social stigma of alcohol abuse in comparison to abuse of illegal drugs. 40% of those who had lost their right to drive in this study, had done so on account of their health care provider having reported their case to Fylkesmannen. (34) It appears that cannabis users relatively frequently have their right to drive revoked outside of a suspicion of having driven while intoxicated, although national statistics are again lacking, and that police operate with a standard of the person involved having admitted to using cannabis on occasion over the last year as the test of sobriety. (59) The seemingly standard one-year probation for regaining the right to drive has, however, been criticized by the courts as not appropriately taking actual circumstances and individual variation into account. (34)

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Skudal and Druckrey-Fiskaaen (2015) only briefly problematize the topic in reference to the issue of trust between health care provider and patient, but a whole host of other troublesome consequences are implicated. Not only is the principle of confidentiality an important principle strongly tied in with both the right to health and the right to privacy, but this also leaves cannabis users who may want to discuss their use with their doctor with a fairly prohibitive cost of losing their right to drive. In a scarcely populated country with long distances between population centers, this cost may also disproportionately affect rural users with heavier consequences. Being able to drive may, for instance, be crucial to maintaining both employment and social and community engagement, and families may also face higher costs from losing the right to drive. (59) The inequitable distribution of revoking the right to drive depending on the type of intoxicant involved is also highly troublesome, as it runs directly counter to notions of fairness and the right to equality before the law. The extrajudicial nature of the procedure of revoking the right to drive, also leaves the whole process vulnerable to great regional variation and, thus, arbitrariness. (34)

Disproportionality and nontraditional policing methods

Paul Larsson (60) problematizes the use of so-called nontraditional policing methods. These include undercover activities, the use of informants, surveillance of telephones and electronic communications, provocation and the like. (61) Such methods are tightly regulated, but their regulation is also in large part secret—making knowledge about the extent of their use difficult to glean. (34) What we do know is that the field of illegal drugs is one of the few allowing the use of these methods, the rationale being that this field potentially carries the harshest available legal penalties in Norway, but that they primarily end up being applied against low-level users and sellers. (34) From the above, we may assume that this disproportionally affects those involved with cannabis. The police methods being used in anti-terrorism investigations and those involving national security, then, are the same ones potentially being used against low-level cannabis consumers. Such methods may, among other things, be quite invasive in terms of the rights to personal integrity and privacy, and this raises questions about proportionality between the severity of the crime and its control.

The use of nontraditional policing methods in the drug field is also accompanied by the normalization of these methods. They become an accepted part of the police repertoire, despite their invasive and problematic nature and their propensity to be applied against already marginalized populations. (62) The effects of these methods, along with their more traditional companions, remain undocumented. (61) They thus become difficult to defend, beyond the normative conviction apparent among police of the great threat posed by the illegal drugs that should be faced by almost any available means. (34)

Other Issues

From the news media and Norwegian public discourse, as well as a recent study by Normal Norge (2018), we know that the issues identified above merely scratch the surface. As has been noted in the literature, (63) the field is overripe for further research to help fill the many glaring holes in our knowledge. The issue of medical cannabis, for instance, has received scant attention in Norway. (64) An analysis and review of news media reports over the last several years is clearly outside the scope of this study, but it may nevertheless be instructive to provide certain illustrative examples and references to recent public debates as they have appeared in printed news media—not the least in order to stake out the course for further research.

Revocation of the right to drive based on cannabis usage has recently garnered a fair amount of attention and scrutiny in the press, as compared to the scant scholarly literature on the subject. One of the leading daily populist newspapers issued an editorial decrying the police practice of preventively revoking the right to drive based on cannabis usage irrespective of whether intoxicated driving has already taken place. (65) The editorial points out that the Parliamentary Ombudsman has called the practice contrary to existing legislation, as has the lower and appeals courts. The editorial appeals to the Minster of Justice to take corrective action unless police change what the newspaper deems an illegal practice.

More than a year later, a commentary in the same newspaper indicates that little has changed. (66) Reiterating the previous arguments, adding details that the revocation may be indefinite, yet no statistics are being kept on the practice, the commentary also points out that the Police Directorate insists on continuing the practice until a Supreme Court decision on the subject is reached. The police have, however, declined to appeal their losses in such cases to said court, leaving such a decision indefinitely out of reach. Relatively broad public agreement on this issue is indicated by a commentary in conservative digital paper Minerva largely echoing and furthering similar arguments against the practice. (67)

An issue which somewhat surprisingly seems to have been left untouched by scholarly attention concerns so-called drug contracts. (68) These may be issued as an alternative to punishment for young people, where they commit to regular drug screenings and other follow-up in exchange for dropped charges and a clean criminal record. These contracts are typically offered underage cannabis users. Regardless of its intention, a whole host of problematic human rights issues arise from this practice. The basic voluntariness of the agreements has been called into question by the threat of punishment on which it is based.

Failure to abide by the terms of the agreements may lead to the criminal charges being pursued. The logistics of control often seem to compromise the personal integrity and right to privacy of young people who are forced to urinate in front of control personnel who may often be of the opposite sex. (69) As indicated in the section on new psychoactive substances above, these tests may drive young cannabis users to experiment with far more uncertain and dangerous substances which may not turn up on urine tests, compromising the right to health. (34) This latter problem is exacerbated by the frequent practice of offering only control without the intended counseling and follow-up to address potentially underlying issues related to the substance use. Some do experience these drug contracts as positive, (70) although their usage seems to depend on local county priorities which, in turn, results in inconsistent and arbitrary practices. (71) In other words, whether you are punished or offered help may depend on your geographic residence. Finally, the effects of these contracts remain unknown all the while they have not been studied or scrutinized. (72)

As it also concerns young people, this relates to a recent novel debate concerning whether realization of the principles enshrined in the Convention on the Rights of the Child is helped or harmed by the ban on cannabis. The argument that current policy and control practices drives young, typically marginalized, people into the drug trade and illegal economy through cannabis sales (73) was quickly countered by arguing that the Convention’s aim to limit children’s exposure to illegal drugs, as well as Norway’s obligations through international drug treaties, would not be better served by alternatives to current practices. (74) The latter is illustrated by reference to Colorado’s experience with cannabis legalization, (34) which interpretation in turn was called into question. (75) This debate bring interesting perspectives, but needs necessarily be resolved politically. Such decision should nevertheless be informed by the best available empirical evidence. Foremost amongst these is their relation to the realization of Art. 33 of the Convention, and whether this is an immediate obligation or rather one of progressive realization.

This will affect the consideration of whether current practices are best suited to serve the intentions of this article. This direct connection to the consequences of enforcement in Norway may be worthy of a closer look. Finally, there appears to be a meta-debate about the public discourse on cannabis regulation as such, where certain police representatives claim that cannabis reform discussions should be avoided as they themselves cause and incentivize usage. (76) This could be linked to debates on the role and actions of Norsk Narkotikapolitiforening, a private interest organization for drug enforcement officers which has been accused of blurring the lines between professional and private roles. (77)

Summary and conclusions

First and foremost, it is clear that more independent research is needed in order to fill the knowledge gaps evident throughout this field. Central to this is the need for collecting, producing and publicizing relevant disaggregated statistics on the full specter of criminal justice reactions and civil sanctions. Although international studies provide a good deal more general knowledge, the extant literature on the consequences of marihuana control in Norway appears to barely scratch the surface of the experienced situation. What is revealed by this precursory look, however, is disquieting in terms of its human rights implications. The present literature review reveals an apparent systematic pattern of both deliberate and unintended failure to heed and observe international human rights obligations along many aspects of the enforcement of the ban on cannabis in Norway, and that these are seemingly interrelated to a large degree and reverberate throughout the chain of relevant rights.

Current Norwegian law and policy is being enforced in a way that leads to those in need of help not receiving any, whereas those who do not need help are controlled, sanctioned and punished. This punishment is unevenly distributed along the fault lines of ethnicity, class and gender, with an overrepresentation of poor black and brown males, contributing to a further cycle of marginalization and alienation not only for those directly affected but for whole groups of people that fit the profile of those targeted. Women and minorities are underrepresented in institutions of care, and minority women are practically non-existent there. The principle of nondiscrimination is seriously abridged by the above, so is that of equality before the law.

Children are afforded additional levels of protection from involvement in the drug trade, yet current practices may seem to exacerbate rather than ameliorate the situation for minors already having become exposed to the illegal drug market through the use of cannabis. This is done both through the process of further criminalization and marginalization, and also, perversely, through the practice of drug contracts seemingly working effectively as sanctions rather than assistance. The exact degree to which NPS are used as a substitute for cannabis remains uncertain, but the use of so-called drug contracts for young cannabis offenders enhances their attractiveness for their quality of evading detection in urine controls. The right to optimal levels of health is compromised by unneeded exposure to potentially volatile and far more dangerous drugs. This same right to health is particularly challenged by health professionals’ duty to report trumping the principle of confidentiality. Those in actual need of help may be dissuaded from seeking it for fear of negative ramifications from risking being reported to the police. This risk also includes being extrajudicially denied the right to drive, irrespective of actual intoxicated driving. This particular consequence has disproportionally large ramifications for those in rural areas where public transportation is scarce.

That all these policies are subject to much regional variation in practice and availability further compromises the principles of equality and nondiscrimination. Add to this the use of nontraditional policing methods of a disproportionate character, and there are strong indications that the negative consequences of control in the enforcement of current Norwegian law regarding cannabis puts Norway at odds with its international human rights obligations.

Recommendations

Based on the above survey, Norway needs to take immediate corrective action as well as develop sound long-term policies in order to meet its international human rights obligations in this field. These include, but are not limited to, the following recommendations:

Develop and publish appropriate disaggregated statistical indicators.These should be disaggregated by type and amount of drug involved, and follow the entire course of the justice system process from arrest, type of punishment, length of incarceration etc. These should also include administrative decisions such as revocation of the right to drive, the use of drug contracts and so on. This is a crucial first step to getting an accurate handle on the extent of the problem and whether officially promulgated policy on enforcement is indeed followed.

End the practice of police profiling based on ethnicity, class and gender.This must include appropriate training for law enforcement personnel, as well as logging relevant indicators in arrest records and reviewing current enforcement policies as they differ across social strata.

Review current criminalization of cannabis users.To the extent that current practices leads to further recriminalization and stigmatization, and in light of the fact that the relatively large number of cannabis users challenges traditional notions of justice, current policies, along with their aims and success rates, must be reviewed.

Streamline administrative and extrajudicial responses.The large regional and individual variations in the availability, content and use of drug contracts, the duty to report and the revocation of the right to drive must be minimized through national guidelines and follow-up. 

Review and revise the content, aims and success-rates of administrative and extrajudicial responses. To the extent that these responses are employed more as additional punishment rather than assistance for those in need, these must be revised in line with clearly stated aims. Whether such aims are actually met, must be evaluated independently in accordance with clear indicators and, in turn, feed back into the review.

End the duty to report for health professionals. This duty severely compromises the principle of confidentiality and, along with it, the right to obtain optimal health standards. Such duties to report should only be employed when clearly necessary to protect the safety and health of others and should otherwise be handled in the patient-doctor relationship.

End the current practice of the revocation of the right to drive.Such revocation must be clearly tailored to meet actual needs of traffic safety, content and conditions must adapt to individual circumstances and cannot be added as a by-product of other and unrelated contact with law enforcement. It must, in other words, be actually related to the topic which it is meant to regulate and not be effectively used as an additional and extrajudicial penalty. 

Footnotes

  1. Ervik 2014; Fjær 2010; Larsson 2015; Rossow 2013

  2. See, e.g., Bretteville-Jensen 2013; Goldberg 2011; Larsen 2015

  3. Haug 2012; Pedersen 2010

  4. E.g. Helse- og omsorgsdepartementet 2010; Nafstad 2011; Snertingdal 2010

  5. Ervik 2014; Fjær 2010; Larsson 2015; Rossow 20136

  6. E.g. Bretteville-Jensen 2013; Larsson 2015

  7. E.g. Kallerud 2010; Myhrer 2001

  8. Act relating to medicines etc.

  9. The penal code

  10. See, e.g., Hauge 2013; Marthinussen 2018a

  11. Hauge 2013

  12. E.g. Landman 2006

  13. Berg and Audestad 2006; Larsson 2014; Shammas, Sandberg and Pedersen 2014

  14. See, e.g., Bukten and Lobmaier 2013; Fekjær 2016; Fjær 2010

  15. Bretteville-Jensen 2013; Hauge 2013

  16. Hauge 2013; Nafstad 2011; Pedersen, Viland and Sandberg 2007

  17. Sandberg and Pedersen 2010

  18. Hauge and Nordlie 1989

  19. Current police statistics set cannabis seizures at about half of all drug seizures (Kripos 2017). See also Stene(2018) on the difficulty in producing accurate and detailed drug statistics.

  20. ICSDP 2010

  21. Pedersen, Viland and Sandberg. 2007; Sandberg and Pedersen 2010

  22. E.g. Goldberg 2011; Larsson 2014

  23. Neumann and Snertingdal 2010; Rossow 2013

  24. E.g. Almvik, Sagsveen, Olsø, Westerlund and Norvoll 2011; Berg and Audestad 2006; Ervik 2014; Fjær 2010;Hauge 2012; Kuvoame 2015a; Larsson 2015; Neumann and Snertingdal 2010; Pedersen 2010

  25. Fjær 2010; Pedersen 2010

  26. Berg and Audestad 2006; Kuvoame 2004; Sandberg and Pedersen 2011; Shammas, Sandberg and Pedersen2014

  27. e.g. Larsson 2014

  28. Carey, Gibney and Poe 2010; Donnelly 2003; Steiner, Alston and Goodman 2007

  29. UDHR, Art. 2

  30. E.g. Berg and Audestad 2006; Kuvoame 2004, 2015a; Nafstad 2011; Sandberg and Pedersen 2011

  31. E.g. Larsson 2014

  32. See also Pedersen 2010

  33. See also Kuvoame 2015b

  34. Ibid

  35. E.g. Larsson 2015

  36. Nafstad 2011

  37. Nafstad 2011; Snertingdal 2010

  38. Kuvoame 2015b

  39. Berg and Audestad 2006

  40. Haug 2012

  41. Bukten and Lobmaier 2013

  42. Pedersen, Viland and Sandberg 2007; Sandberg and Pedersen 2010

  43. European Monitoring Centre for Drugs and Drug Addiction 2018; Haug 2012

  44. Giertsen 2010, p. 281

  45. 2010; see also Pedersen 2013, 2015

  46. Pedersen 2010; Sandberg and Pedersen 2010

  47. Bretteville-Jensen 2013

  48. P. 116

  49. The full text of which reads: “States Parties shall take all appropriate measures, including legislative,administrative, social and educational measures, to protect children from the illicit use of narcotic drugs andpsychotropic substances as defined in the relevant international treaties, and to prevent the use of children in theillicit production and trafficking of such substances.”

  50. Shammas, Sandberg and Pedersen 2014

  51. Bilgrei 2012; Bretteville-Jensen and Bilgrei 2015; Fekjær 2016

  52. Bretteville-Jensen and Bilgrei 2015

  53. Bilgrei 2012; Fekjær 2016

  54. EMCDDA 2018

  55. Bilgrei 2012

  56. Larsen 2015

  57. Bretteville-Jensen and Bilgrei 2015

  58. Fekjær 2016

  59. Lysne 2017

  60. Paul Larsson 2014; 2015

  61. Larsson 2015

  62. Larsson, 2014

  63. E.g. Ervik 2014; Fjær 2010; Larsson 2015; Rossow 2013

  64. Pedersen and Sandberg 2010

  65. Dagbladet 2017

  66. Rydje, 2018

  67. Marthinussen, 2018b

  68. Although experiences with these contracts in Oslo and Follo have been evaluated by the public healthcompetence center KoRus (Lien and Larsen, 2015).

  69. Dahl 2016; Spinnangr and Paust, 2018

  70. Ingebrigtsen and Gjellan 2015

  71. Aardahl 2013

  72. Ingebrigtsen and Gjellan 2015; Spinnangr and Paust, 2018

  73. Paust, 2018a

  74. Fludal, 2018

  75. Paust, 2018b

  76. Mossing and Olsson 2018

  77. Standal, 2016

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    Reference for illustration pictures:

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  • https://normalnorge.no/norske-cannabisbrukere/