Legal thresholds for drug trafficking: Evaluating the risk of unjustified charge of users as traffickers in six Australian states

Transcription

1 Legal thresholds for drug trafficking: Evaluating the risk of unjustified charge of users as traffickers in six Australian states Caitlin Hughes 1, Alison Ritter 1, Nicholas Cowdery 2 1 Drug Policy Modelling Program, National Drug and Alcohol Research Centre, The University of New South Wales, Sydney, New South Wales, Australia 2 Faculty of Law, The University of New South Wales, Sydney, New South Wales, Australia Presenters address: caitlin.hughes@unsw.edu.au Abstract Aim: Legal threshold quantities for drug trafficking are utilised in many parts of the world to define the over which possession of an illicit drug is deemed trafficking as opposed to personal use. Yet, in spite of threshold quantities having been devised in a largely ad hoc manner, the potential risks to users of an unjustified charge for trafficking have been rarely examined. In 2010 Hughes and Ritter put forward the first set of evidence-informed metrics for evaluating drug trafficking threshold design. Application to one Australian setting (the Australian Capital Territory) showed the thresholds blurred the boundaries of personal use and trafficking, with users of ecstasy able to consume or purchase more than twice the for trafficking in that drug. In this study we extend this analysis to evaluate and compare and contrast the risks of unjustified charges for trafficking throughout other Australian jurisdictions. Method: The drug trafficable thresholds for heroin, methamphetamine, cocaine, ecstasy and cannabis were evaluated in six Australian states (NSW, Vic, Qld, SA, Tas and WA) against two metrics: typical patterns of user consumption (Metric 1) and typical patterns of purchasing (Metric 2). Data for each metric was derived using three different national drug monitoring systems: the Illicit Drug Reporting System (IDRS), the Ecstasy and Related Drugs Reporting System (EDRS) and the National Drug Strategy Household Survey (NDSHS). For each drug/state the mean, median, range and maximum that a regular user would be expected to consume or purchase for their own use was compared against the applicable trafficable threshold. Results: The trafficable thresholds are low relative to many patterns of use and purchasing for ecstasy, methamphetamine and cocaine. For example, users of ecstasy consume up to 8.9 times the current trafficable threshold. However, there are important inter-state differences, with users in some states having only minimal risk of exceeding the thresholds (e.g. Tas) and users in other states being at risk across multiple drugs (e.g. NSW). Conclusions: This provides evidence that consistent with the results from the ACT the current thresholds system places particular groups of users at risk of unjustified charges for trafficking. Equally importantly it shows that threshold systems that better reflect current drug market practices pose much less risk. We conclude by outlining possible ways forward, including legislative reforms to elevate threshold quantities for some drugs/states. 1

2 Introduction Legal threshold quantities for drug trafficking are utilised in many parts of the world to define the over which possession of an illicit drug is deemed trafficking or trafficking in high level quantities (Hughes, 2003, 2010a). Yet, these legislative or policy tools that are frequently proposed, adopted or modified under the guise of increasing the effectiveness of responses to problems of drug trafficking and use (see for example the recent sentencing enquiries in the United Kingdom and Australia Attorneys-Generals Department, 2011; Sentencing Council, 2011) remain highly contested tools with many arguing their use unwittingly increase rather than decrease the likelihood of disproportionate and unjust sanction of drug offenders. One of the biggest potential risks is to users: namely of an unjustified charge for an offence of drug trafficking. The irony is that in spite of threshold quantities having been devised in a largely ad hoc manner, the potential and actual risks to users have been rarely examined, leaving unanswered whether drug trafficking thresholds can be relied upon to effectively filter out drug traffickers from users. The specification of threshold quantities for drug trafficking is not universal. For example, many countries explicitly avoid their use (for example France). A minority of countries specify actual quantities (for example Germany) (Hughes, 2003, 2010a). Moreover, there is variation (amongst countries that choose to employ them) in how they are employed, whether for example they are used to distinguish traffickers from users or to distinguish only different levels of drug trafficking (Hughes, 2003, 2010a). This diversity reflects in large part differences of opinion about the utility and efficacy of employing threshold quantities for drug trafficking. For those that choose to use threshold quantities, they argue that they ensure fairness, reduce costs, deter current and future drug traffickers and increase public confidence in the criminal justice system. As summed up by the UK Sentencing Council (2011, p. 4) the principal aim is to ensure sentencing of drug offenders is fair, consistent and proportionate to the offence committed. Concern is that without drug thresholds, there will be more inconsistency in sentencing and opportunity for prosecutorial abuse which will lead to minor players receiving draconian sanction and major players going un or under-sanctioned (MCCOC, 1998b). Through more certain sanction thresholds are also deemed to increase deterrence of current and would-be drug traffickers and in turn to increase public confidence in the criminal justice response to drug offenders (Harris, 2011b; Sentencing Council, 2011). On the other hand, opponents argue that threshold quantities can unwittingly lead to inappropriate or unjust sentencing. The most infamous example of this followed the introduction of the United States Anti-Drug Abuse Act of 1986 at the time of the crack cocaine epidemic. The decision to enact a 100 to 1 discrepancy in threshold quantities for cocaine and crack cocaine which trigger mandatory minimum sentences fueled over-imprisonment of crack cocaine traffickers, mass racial disparities and the need to not only amend but also retroactively reduce sentencing inequities (United States Sentencing Commission, 2011; Yeh & Doyle, 2009). Fleetwood (2011) has demonstrated how thresholds can also lead to excessive punishment of those who have the lowest levels of culpability in drug trafficking drug mules and how by getting mules to carry large quantities, major players deliberately displace their risk of serious sanction. More generally critics have argued that thresholds foster sentencing practices that fail to fit the true culpability, intent or harm from drug trafficking offences (Harris, 2011b; Sevigny, 2006; Sevigny, 2009). Of particular concern to opponents is that the specification of thresholds for drug trafficking will increase disproportionate and unjust responses towards drug users, through charging and imprisoning users who possess large quantities for an offence of drug trafficking (Harris, 2011b; Walsh, 2008). Many reasons have been put forward for why users may legitimately carry large quantities, including to reduce contact with the drug market (i.e. reduce risk of criminal justice detection) or to compensate for a higher tolerance. Yet, there remains scant evidence of actual or potential risks to users. The main exception to this is a US study by Sevigny & Caulkins (2006) which showed that in % of US federal and 15.6% of state inmates convicted of drug trafficking were self-reported to be a user /possessor at the time of the offence. 2

3 The limited evidence base is of concern as the methods by which existing quantitative thresholds have been devised have been largely ad hoc or based on historical artefact and in a non-transparent manner. As summed up at an international meeting on threshold quantities: How these figures were set... is not a calculation for which the workings are generally in the public domain, nor, did some jurisdictions retain their workings out even in the private domain (Harris, 2011b, p. 9). This dramatically increases the probability of poor design and the likelihood of deleterious impacts for users and/or traffickers. Research into drug trafficking thresholds to date has been stymied by the absence of specific tools for analysing thresholds, which has fostered ad hoc methods of analysis. Equally if not more importantly, while there is a huge diversity of threshold approaches, most analyses have focused on particular threshold systems (most notably the United States). This reduces capacity to systematically examine and compare and contrast risks to users or traffickers under different threshold systems. In an environment in which research is increasingly showing that design is one of the key determinants of the level of unintended policy outcomes (see for example research on drug diversion by Hughes & Ritter, 2008; Sevigny, Pollack, & Reuter, 2013), this is potentially short-sighted and reduces capacity to build a solid evidencebase on the worth and utility of such tools and to identify if there may be ways to mitigate the level of risk posed. In 2010 Hughes and Ritter put forward the first set of evidence-informed metrics for evaluating drug trafficking threshold design. Arising out of a unique opportunity to provide advice into threshold decision making five metrics were developed and applied based on Australian and international research evidence on drug user behaviour and drug markets (Hughes & Ritter, in press). Application to one Australian setting (the Australian Capital Territory) showed the thresholds blurred the boundaries of serious and minor trafficking offences. Equally, if not more importantly, they also blurred the boundaries of personal use and trafficking, with users of ecstasy able to consume or purchase more than twice the for trafficking in that drug. Yet, questions remained as to whether threshold systems in other parts of Australia would place users at the same level and type of risk. In this study we extend this analysis to evaluate and compare and contrast the risks of unjustified charges for trafficking across six different states of Australia. 1 The purpose is to: 1. Evaluate whether the Australian trafficable thresholds allow the prosecution and the judiciary to properly distinguish drug users from traffickers; 2. Compare and contrast threshold design across Australia taking into account interstate differences in current legal thresholds and drug markets; 3. Determine whether the problems identified with the ACT drug trafficking thresholds are common across Australian state systems. Australian drug trafficking thresholds As in many parts of the world drug trafficking in Australia is deemed a high stakes and high harm offence. Accordingly, legislators and courts have ruled general deterrence is paramount and little mercy should be shown to drug traffickers (Clune [1989] VR 567, O Bryan and Marks JJ, 576). Reflecting the seriousness with which drug trafficking is viewed, the statutory maximum penalty for drug trafficking in Australia is high. This is particularly true in NSW, SA and VIC where the maximum penalty is life imprisonment (Controlled Substances Act 1984 (SA); Drug Misuse and Trafficking Act 1985 (NSW); Drugs, Poisons and Controlled Substances Act 1981 (Vic)), placing it in the gravest category of offending after murder. Yet, in a policy environment of harm minimisation where ever since the adoption of the Australian National Campaign Against Drug Abuse there has been an emphasis upon avoiding serious sanction of users (Department of Health, 1985) a principal challenge has remained how to effectively differentiate and sanction participants in the drug trade: particularly how to 1 Risks of disproportionate sanction of Australian drug traffickers across the six states are examined elsewhere. 3

4 differentiate traffickers from those who solely purchase or consume illicit drugs (MCCOC, 1998b). Drug trafficking thresholds operate across Australia, including at the Commonwealth (for offences involving importation etc) and in each of the eight states and territories. The Australian system of drug trafficking thresholds is unique, both in terms of the decision to employ thresholds and in their design. Each Australian jurisdiction employs 2-5 thresholds, which trigger increasingly severe penalty ranges. The most important for the current analysis is the trafficable threshold that distinguishes crimes of trafficking versus possession for personal use (Hughes, 2010b). The trafficable threshold varies by jurisdiction, drug type and whether the is specified including added ingredients such as sugars and binding agents (mixed drug) or in active principal only (pure drug). Nevertheless, as shown in Table 1, in most jurisdictions possession of 2 or 3 grams of heroin, methamphetamine, cocaine or ecstasy (in whatever condition it is sold on the street i.e. mixed drug) will constitute grounds for trafficking. Table 1: Trafficable threshold quantities (in grams) in Australia by drug type, system (mixed or purity based) and jurisdiction Heroin Cocaine Ecstasy/MDMA Cannabis Meth/ amphetamine Mixed based system NSW NT SA Tas Vic WA Purity based system ACT Qld Mixed = Total mass including any added ingredients such as fillers and binding agents. Pure = 100% pure drug: excludes buffers or glucose. All Australian drug trafficking thresholds are attached to deemed supply laws which reverse the traditional burden of proof from prosecutors onto defendants. Such laws mean that possession of the trafficable threshold amount will constitute a presumption of trafficking placing the onus on the alleged offender to prove that the possessed amount was not for the purposes of trafficking ( deemed supply ). For example as noted in Victoria: Where a person has in their possession not less than a traffickable of a drug of dependence, the fact of possession provides prima facie evidence of trafficking (Drugs, Poisons and Controlled Substances Act 1981 (Vic), Section 73(2)). Such provisions are unique relative to most other drug trafficking threshold systems across the world, where deemed supply laws are explicitly avoided (Harris, 2011a; Hughes, 2003; Walsh, 2008) and also differ to most other serious crimes in Australia, including murder, robbery and dangerous driving (see for example MCCOC, 1998a), where it is expressly upheld that accused people do not need to prove their innocence (Woolmington v DPP [1935] AC 462; He Kaw Teh v R (1985) 157 CLR 523; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249) (Judicial College of Victoria, 2012a, Sect (5)). As with most drug trafficking threshold systems the explicit rationales for adopting a mixed or purity based systems and the actual quantities adopted are unclear. Nevertheless, it appears that the reversal of the standard criminal justice principles for the offence of drug trafficking has been intentional due to beliefs it was essential to enable effective enforcement and prosecution of Australian drug traffickers. This is evident from the 1998 discussions of the Australian Model Criminal Code on Serious Drug Offences: Compromises which weaken or abandon the principle that individuals are innocent until proved guilty require compelling justification when the consequences of conviction are severely punitive, as they are in the trafficking offences. In the discussion paper which preceded this report, 4

5 a majority of the Committee recommended against inclusion of trafficable presumptions in the serious drug offences... On publication of the discussion paper, prosecutorial authorities and police were virtually unanimous in their protests that the presumptions were essential to law enforcement. Reconsideration of the issue, in the light of these representations, persuaded the Committee to the view that reliance on the trafficable presumption was an unavoidable element in effective law enforcement (MCCOC, 1998b, p. 81 emphasis added). Legislators today appear equally committed to retaining such provisions. For example the Victorian Attorney General noted the widespread suffering caused by the social evil of drug trafficking, the particular difficulties for prosecutors in investigating and proving knowledge and the ensuing demands to provide prosecutorial assistance for countering drug trafficking (R v Momcilovic (2010) VSCA 50). The erosion of standard criminal justice principles make the consequences of a user unwittingly exceeding the trafficable threshold that much more severe. Methods In this study we evaluated the drug trafficable thresholds in the six Australian states: NSW, Victoria, Queensland, South Australia, Tasmania and Western Australia against drug user behaviour and knowledge of Australian drug markets. The Australian Capital Territory and the Northern Territory were excluded from this analysis for two reasons; the prior analysis of the ACT (Hughes & Ritter, in press) and lack of adequate data on illicit drug use and purchasing for the Northern Territory. The lack of adequate data on the Northern Territory was in large part a reflection of drug use patterns; licit substances such as alcohol and petrol are the predominant drugs of choice and prevalence of illicit substance use is low (Taskforce on Illicit Drugs, 2001). Analysis concentrated on five different drug trafficable thresholds: heroin, methamphetamine, cocaine, ecstasy/mdma 2 and cannabis (leaf, not whole plant form) (as outlined in Table 1). These constitute the most commonly used illicit drugs in Australia (Australian Institute of Health and Welfare, 2011), and are also the drugs for which there is most research evidence to draw upon. The approach replicated the approach of Hughes and Ritter (in press). Accordingly, thresholds for the one jurisdiction that adopted a purity-based threshold system (Queensland) were converted into a mixed-based gram equivalent. This was necessary to apply the research data (generated using retail market conditions) and to compare the fit of thresholds with other states. Thresholds were converted using median purity estimates from the Illicit Drug Data Report on all Queensland seizures <2 grams in (Australian Crime Commission, 2012). For example the median purity of heroin in was 18.6%, which meant 2.0 grams of pure heroin was equivalent to 10.8 grams of mixed heroin. Each of the 30 trafficable thresholds (from 6 states and 5 drugs) was then evaluated against two metrics of the of drug a user is likely to possess for personal use alone: Metric 1: User patterns of use i.e. of drugs that a user is likely to possess for a single session of personal use. Metric 2: User patterns of purchasing i.e. of drugs that a user is likely to purchase for personal use. Data was derived using three different national drug monitoring systems: the Illicit Drug Reporting System (IDRS), the Ecstasy and Related Drugs Reporting System (EDRS) and the National Drug Strategy Household Survey (NDSHS). The IDRS and EDRS are national monitoring systems that survey regular (at least monthly) drug users on an annual basis. They have been designed to target different populations regular injecting users, predominantly heroin (IDRS) and regular ecstasy users (EDRS). In 2011 a total of 868 users participated in IDRS (Stafford & Burns, 2012) and 693 in the EDRS (Sindicich & Burns, 2012). The NDSHS is a representative sample of the general Australian population that is conducted 2 The chemical composition of MDMA tablets vary greatly and may actually contain no MDMA. It is for this reason that tablets are commonly manufactured, sold and consumed as ecstasy. Given this is the term most often adopted by drug users and researchers we will also adopt it in this paper. 5

6 every 4 years. In 2010 more than 26,000 people from all Australian jurisdictions aged 12 and over were sampled, of whom 3523 constituted recent users (Australian Institute of Health and Welfare, 2011). The key demographic and drug use features of the samples are listed in Table 2. This indicates that the EDRS population were somewhat younger than the IDRS and NDSHS populations but that the levels of unemployment and current drug treatment access were substantially higher amongst the IDRS population. The rates of recent drug use were consistent with the sampling methods: with recent use of any illicit drug 6.8 times higher amongst the IDRS and EDRS populations. The IDRS and EDRS populations also reported higher frequency of drug use. For example, 81.4% and 67.5% of the IDRS and EDRS populations respectively reported at least weekly use of cannabis, compared to 33.9% of the NDSHS population. Table 2: Demographics and drug use patterns of IDRS, EDRS and NDSHS samples (at national level) IDRS 2011 (n=868) EDRS 2011 (n=693) NDSHS 2010 (n=26,000) Demographics Age (mean) 38 years (17-65) 24 years (16-57) 38 years (12-98) Gender 66% male 69% male 57% male % unemployed 79% 22% 7.8% % in drug treatment 49% 5% - Drug use Recent drug use Any illicit drug 100% 100% 14.7% Cannabis 79% 85% 10.3% Methamphetamine 66% 60% 2.1% Cocaine 17% 46% 2.1% Ecstasy 14% 100% 3.0% Heroin 62% 7% 0.2% To calculate Metric 1, a number of steps were undertaken. First, data on consumed was extracted from the three surveys (by drug and state). Data were sourced from the 2011 IDRS and EDRS on two variables; average session and heavy session over the 6 months prior to interview. For example, for the average (or typical) session, participants were asked, by drug type, What is the average amount you have used in a session in the last six months? A session is defined as a continuous period of drug use without sleep, and is a more pertinent time period than a day as some drugs can be used for a number of days continuously. This was supplemented with data from the 2010 NDSHS for recent users specifically (n=3523 people who had used at least one illicit drug in the last 12 months) on consumed during a typical session. Quantity consumed during a heavy session was not assessed. Second, dosage conversions were applied to convert common drug dosage units into grams. This was necessary given users often reported consumed in terms of drug dosage units such as a cap or a pill, rather than in grams. For example 58% of the 2011 EDRS reported ecstasy use in terms of number of pills (Sindicich & Burns, 2012). Conversions were based on common gram estimates for dosage units as reported by the Australian Illicit Drug Data Report (Australian Crime Commission, 2012), Shearer et al. (2005), Fowler et al. (2007), McKetin et al. (2005), Moore et al. (2005), Maher and Dixon (1999), Norberg et al. (2012) and Mackenzie et al. (2010). These were then supplemented with more detailed analysis of forensic data from one police agency (Victoria Police) 3 on the weight of seizures for the most common units: a pill of ecstasy, a point of methamphetamine crystal and powder and a cap of heroin. The resulting dosage conversions were 1 ecstasy pill = 0.29g, 1 heroin cap = 0.2g, 1 cocaine line = 0.1g, 1 crystal methamphetamine point = 0.2g and 1 powder methamphetamine point = 0.3g. 3 Victoria Police is one the largest police agencies in Australia and the only agency where every illicit drug seizure is subject to analysis of weight and purity. 6

7 Third, mean, median and a range of quantities was calculated and the upper quantities checked with key experts (n=6) to verify if they were within the maximum range that could be consumed in a single continuous session of use without sleep. Those quantities deemed implausible were removed e.g. reported consumption of 20 grams of heroin which would be toxic. The final quantities were then compared against the actual trafficable thresholds to identify for each drug and state two things: first, whether most users consumed less than the threshold (using median and mean estimates); and two, whether any users consumed more than the trafficable threshold for personal use alone (using maximum estimates), i.e. whether there was a risk to any users of an unjustified charge/conviction. A similar process was adopted for Metric 2. First, data for the 2011 IDRS and EDRS were extracted on the variable of last purchase amount. Participants were asked, by drug type, how much they had paid for their last purchase over the 6 months prior to interview. Unfortunately purchasing practices were not assessed through the NDSHS hence there was no data available on the quantities purchased by the general population. The data was also limited to last purchase only: not typical and heavy purchase. This leads to a potential under-estimation of the maximum amount that may be purchased by users for personal use alone. Second, dosage units were applied and data was cleaned to eliminate all estimates from known dealers (for whom it is reasonable to assume purchases may not have been intended for personal use). To do this we excluded all estimates from regular users who reported any dealing for cash profit in the last month. This led to the removal of 27% (n=237) of the national IDRS sample (n=868) and 28% (n=160) of the national EDRS sample (n=574). One limitation is that individuals who shared drugs with friends would not be removed from this sample, even though this would be regarded by the law as trafficking. Nevertheless, given drug trafficking thresholds are aimed principally at commercial dealers this provides increased certainty that they were removed from the sample. Mean, median, range and maximum were then calculated, by drug and state, and quantities compared against the current trafficable thresholds. Results A large amount of data was derived, crossing five drugs, six states, three data sources, two metrics and multiple indices (mean, median, minimum and maximum ). Here we compare trafficable thresholds to the median and maximum quantities (used and purchased) only. It should however be noted that the mean and median quantities used or purchased had a high level of concordance. Table 3 outlines the results for heroin and methamphetamine. This and subsequent tables outline the median and maximum for a typical session of use; median and maximum for a heavy session of use; and median and maximum obtained in the last purchase. The final column is the trafficable threshold for that state/drug. Examining data on heroin specifically, all of the median quantities of heroin used, either in a typical session or a heavy session, fell below the trafficable threshold quantities (see Table 3). The same is true for the median of heroin that was last purchased. However, using the more stringent measure of maximum, under heavy sessions regular heroin users in two states (NSW and Vic) reported consuming a maximum of heroin that exceeded the trafficable thresholds (with heroin users in NSW consuming up to double the current threshold). Heroin users in NSW and Vic also reported that on their last purchase, the maximum obtained exceeded the trafficable threshold (albeit by a small degree). This indicates that most heroin users will have no chance of exceeding the thresholds for personal use, but under high use/purchase conditions heroin users residing in NSW and Vic could exceed the trafficable thresholds by virtue of their consumption or purchasing behavior alone. All of the median quantities of methamphetamine used or purchased were again below the current trafficable thresholds (see Table 3). However, the maximum of methamphetamine used or purchased exceeded the trafficable thresholds in two states for a typical session of use (NSW and SA), four states for a heavy session of use (NSW, SA, Vic and WA) and three states for last purchase (NSW, SA and Vic). Indeed, in a heavy session regular methamphetamine users reported consuming up to 3.5 and 3.2 times the current threshold in SA and NSW respectively. This indicates regular methamphetamine users in such states can carry quantities for their personal use that greatly exceed the current thresholds. Interestingly the data also indicate that some irregular methamphetamine users 7

8 can also carry more than the trafficable threshold. Indeed, in a typical session occasional methamphetamine users in NSW, SA and Vic reported a higher maximum consumed than their regular using counterparts (e.g. 7g for NDSHS in NSW vs 4g for IDRS). Table 3: Quantity of heroin and methamphetamine used or purchased (grams), by session (typical or heavy), sample (IDRS, EDRS and NDSHS) and state, compared to the trafficable threshold Sample/ State Typical Session of Use Heavy Session of Use Last Purchase Trafficable Threshold Quantity # Low numbers reporting (<10 responses). Heroin IDRS NSW Vic Qld SA WA Tas # 1.00 # 25.0 Methamphetamine IDRS NSW Vic Qld SA WA Tas EDRS NSW Vic Qld SA WA # 1.00 # 2.0 Tas NDSHS NSW Vic Qld SA WA Tas KEY: Under threshold Equal to threshold Over threshold Cocaine users consistently reported that they used or purchased a median of cocaine that was less than the current trafficable threshold (see Table 4). But the maximum used exceeded the threshold in four states for a typical and heavy session (NSW, SA, Vic and WA), with cocaine users reported consuming up to 2.5 and 2.3 times the current trafficable thresholds (WA and NSW respectively). Data on cocaine purchasing was limited, but also indicated cocaine users could exceed the current thresholds in NSW (albeit by a small amount). Most ecstasy users reported consuming less than the trafficable thresholds (based on median used or purchased), but there were two noticeable exceptions: in NSW the median used in a heavy session and median in the last purchase exceeded the trafficable threshold for ecstasy (see Table 4). Moreover, the maximum used or purchased by ecstasy users exceeded the thresholds in two states for a typical session of use (NSW and SA), in four states for a heavy session (NSW, SA, Vic and WA) and in all six states for last purchase. Indeed, ecstasy users reported consuming up to 4.6 times the current threshold in a typical session and 8.9 times the current threshold in a heavy session (NSW data). The consequence is that when undertaking a typical session 35.7% of regular ecstasy users in NSW possessed more than the current threshold for personal use alone and 77.6% in a heavy session. Data on purchasing specifically showed that while in their last purchase 8

9 the median was 1.16 grams (4 pills) ecstasy users in five different states reported a maximum of 29 grams or more. This meant they purchased quantities that were up to 19 times the current trafficable thresholds (NSW and Vic data). Table 4: and maximum of cocaine and ecstasy used or purchased (grams), by session (typical or heavy), sample (IDRS, EDRS and NDSHS) and state, compared to the trafficable threshold Sample/ State Typical Session of Use Heavy Session of Use Last Purchase Trafficable Threshold Quantity # Low numbers reporting (<10 responses). Cocaine IDRS NSW Vic # 1.00 # 3.0 Qld 0.38 # 1.00 # # 1.00 # 1.00 # 10.5 SA 0.50 # 5.00 # 0.35 # 3.00 # 0.55 # 1.00 # 2.0 WA 0.52 # 1.00 # 2.05 # 4.00 # Tas # 0.50 # 0.50 # 1.00 # 1.00 # 25.0 EDRS NSW Vic Qld SA # 1.00 # 2.0 WA 1.00 # 1.00 # 1.00 # 2.00 # Tas NDSHS NSW Vic Qld SA WA Tas # 25.0 Ecstasy EDRS NSW Vic Qld SA WA Tas NDSHS NSW Vic Qld SA WA Tas KEY: Under threshold Equal to threshold Over threshold Finally, there was no instance where the median of cannabis consumed or purchased exceeded the current thresholds (see Table 5). Indeed, examining the maximum consumed in a typical and heavy session and maximum last purchased with only one exception (SA) all estimates were under the trafficable threshold. This indicates there was next to no risk in any of the six states of cannabis users exceeding the trafficable thresholds for personal use alone. 9

10 Table 5: and maximum of cannabis used or purchased (grams), by session (typical or heavy), sample (IDRS, EDRS and NDSHS) and state, compared to the trafficable threshold Sample/ State Discussion Typical Session of Use Heavy Session of Use Last Purchase Trafficable Threshold Quantity # Low numbers reporting (<10 responses). Cannabis IDRS NSW Vic Qld SA WA Tas ,000.0 EDRS NSW Vic Qld SA WA Tas # 28.4 # 1,000.0 NDSHS NSW Vic Qld SA WA Tas ,000.0 KEY: Under threshold Equal to threshold Over threshold It has long been feared that threshold quantities for drug trafficking may lead to unjustified charge of users for an offence of drug trafficking. Yet the likelihood of this ensuing has been rarely examined. By evaluating thresholds in six different states of Australia against data on patterns of drug use and purchasing this study provided the opportunity to assess and compare and contrast the risks of unjustified charge across different threshold and drug market conditions. The approach taken is subject to the limits of currently available data. The sample sizes for a number of estimates were small which likely reduces their reliability. A number of desirable indices such as purchases under heavy conditions were also unavailable. This reduces in particular the likely utility of Metric 2. Furthermore, the analysis has evaluated potential risk rather than actual consequences for users, something that demands additional analysis using police, court and correctional data. Nevertheless, as the first inter-jurisdictional threshold analysis this provides considerable insight into the risks posed to users by drug trafficking threshold systems. On the one hand the analysis showed that whether examining regular users or less frequent users most median quantities Australian drug users reported consuming or purchasing were lower than the trafficable thresholds. This indicates that the average Australian drug user is unlikely to exceed the trafficable threshold. On the other hand, the maximum that a user may legitimately consume or purchase for their personal use exceeded the trafficable for most states and most drug types. This indicates that most drug trafficking thresholds within Australia carry some level of risk to users of an unjustified charge or sanction. That said, the level of risk was shaped by three factors: state, drug and drug use patterns (with those at heightened risk being regular not irregular users and those engaged in heavy not typical use). Comparing threshold design across Australia it is clear that inter-state differences in legal thresholds and drug markets did matter. For example, Tasmania had almost no evidence that users exceeded current thresholds for personal use alone. There were also negligible instances of users in Queensland exceeding the current thresholds, but it is important to 10

11 remember that this conclusion was based on an assumption that all quantities consumed or purchased were of median purity. Under conditions of the highest purity recorded in threshold quantities could be as little as 2.4g for ecstasy, cocaine and methamphetamine and 2.5g for heroin (Australian Crime Commission, 2012), and consequently the maximum used or purchased would have exceeded the trafficable thresholds for all four drugs. That said this is unlikely to be a frequent occurrence. At the other extreme, there were two states in which the maximum quantities used or purchased consistently exceeded the trafficable thresholds: New South Wales and South Australia. In both states users risked exceeding the thresholds by virtue of use and/or purchasing for three or four different drugs: ecstasy, methamphetamine and cocaine (SA) and ecstasy, methamphetamine, cocaine and heroin (NSW). The different risks from the current threshold systems can be attributed in part to the actual threshold quantities for example Tasmania clearly has the highest threshold quantities and NSW the smallest threshold for ecstasy. But, the risks to users differed even across states with the same threshold quantities. Of note here are South Australia and Western Australia which have the same threshold quantities (excepting cannabis). This indicates that the most important determinant of risk is whether the threshold systems reflects the drug market practices in their jurisdiction. Yet, it is also clear that there is common and systemic problem in all state threshold systems, namely the relative risk of unjustified charge for users of different illicit drugs. For example, in every state ecstasy users reported consuming and/or purchasing quantities for personal use that exceeded the trafficable threshold. Moreover, given the maximum quantities were times over the current thresholds for their personal use alone (and up to 77.6% of users exceeded threshold for heavy use sessions), this shows a greatly increased risk for users of this drug. On the other hand across the six states there were no instances where a cannabis user consumed more than the trafficable (either in a typical or heavy session) and only one instance where the maximum purchase amount exceeded the trafficable threshold. Indeed, with one exception, the maximum quantities reported by cannabis users were times under the threshold. This provides strong evidence that consistent with the findings from the ACT ecstasy users in every state of Australia are disproportionately placed at risk of unjustified charge. The differential risk reflects again in part the current thresholds: with ecstasy users in the state with the lowest threshold quantities (NSW) clearly being at the greatest risk of unjustified charge. Yet, the heightened risks to ecstasy users also reflects that the current Australian drug trafficking thresholds do not account for the legitimate reasons why users of this drug (and not others) may use or purchase in larger quantities. For example, ecstasy is a drug that is used infrequently, with even regular users reporting consumption on a fortnightly basis. However, when used, binging is common, with a session lasting 48 hours or more (thereby increasing the consumed) (Degenhardt & Hall, 2010). Moreover, the closed nature of the ecstasy market and the high fluctuations in pill purity mean that unlike other drugs e.g. heroin, ecstasy purchasing patterns are highly planned (often occurring well before the time of consumption) and/or involve bulk purchases (for the purpose of stockpiling for future low quality periods) (Fowler, et al., 2007). The systemic problem with ecstasy thresholds carries particular concern as ecstasy has long been the second most used illicit drug in Australia, with for example 9.9% of those aged having used ecstasy in the last 12 months (Australian Institute of Health and Welfare, 2011). Moreover, it is naive to think only ecstasy users would be placed at risk from the disproportionately low threshold for ecstasy given the high prevalence of poly-drug use and drug substitution amongst regular and occasional users alike (Chalmers, Bradford, & Jones, 2010; McKetin, et al., 2010). Equally importantly, of all of the drugs including in the current threshold analysis, ecstasy is by far the least harmful, with negligible risk of dependence, economic cost, risk of family breakdown or involvement in other forms of criminal activity (Nutt, King, & Phillips, 2010; van Amsterdam, Opperhuizen, Koeter, & van den Brink, 2010). Moreover, users of ecstasy are highly integrated. For example, 77% of regular ecstasy users in the 2011 EDRS had completed year 12, 46% tertiary qualifications and 61% were generating income through wages or salary (Sindicich & Burns, 2012), rates that are consistently higher than amongst other regular illicit drug users (Fowler, et al., 2007). Such 11

12 factors dramatically increase the potential harm from an erroneous charge and sanction for an offence of ecstasy trafficking. Finally, the data suggest that beyond these specific instances there may be less a problem with the trafficable threshold quantities per se, than with the combination of the threshold quantities and the deemed supply provisions. This is because the average user appears unlikely to exceed the threshold for personal use alone, but those that do find themselves to be deemed to have supplied the drug. While deemed supply has been justified in terms of the importance of effective responses to drug traffickers, the evidence herein that this provision places users across all states in positions of having to prove the absence of intent provides grounds for questioning whether such judicial constraints can continue to be justified, particularly given legislators have clearly recognised that an unjustified conviction for dealing will often impose social and individual harms which far exceed the harm associated with the drug in question (MCCOC, 1998b, p. 87). We can also now show that for drugs like heroin the users who find themselves at the margins of the drug trafficking thresholds are those most likely to be marginalised and unemployed (Stafford & Burns, 2012) which decreases chances of successfully negotiating the minefield of an unjustified criminal justice charge. The supremacy of the principle of prosecutorial burden of proof that is retained even for offences of murder and manslaughter (MCCOC, 1998a) has been for good reason: to avoid the potential for the types of injustice indicated in this study, and it is difficult to not conclude that is one of the most concerning aspects of the current Australian drug trafficking threshold system. The findings hold clear implications for Australian legislators. While they show that most illicit drugs users are not at risk of unjustified charge from the current threshold systems, they also reveal particular groups of Australian drug users are being placed at (considerable) risk of unjustified charge. Given such evidence it is hard to conclude that in their current form Australian trafficable thresholds do allow the prosecution and the judiciary to properly distinguish drug users from traffickers. Three reforms are therefore urgently needed: First, increase threshold quantities for ecstasy across all Australian states to reflect the heightened quantities that such users can be expected to legitimately possess for personal use. Second, increase threshold quantities (for heroin, methamphetamine, cocaine and/or ecstasy) in South Australia and New South Wales to reflect the actual drug market practices in each jurisdiction. Third, abolish deemed supply provisions from the Australian drug trafficking threshold system so as bring crimes of drug trafficking into closer alignment with other drug trafficking threshold systems and legal rules on serious crimes and require that police and prosecution either supplement with actual proof of trafficking (or intent for preparation for trafficking), such as scales or multiple bags, or in their absence lay charges of simple possession. Such steps will not eliminate all risks, but they have the potential to significantly ameliorate the most burdensome risks from the current threshold system. Beyond the Australian context this analysis adds to the evidence base and debates on drug trafficking thresholds by showing that fears of risks to illicit drug users from drug trafficking thresholds are with founding, and that many different sub-groups of users can be placed at risk. Yet the analysis also shows that risks to illicit drug users can and do vary. This carries considerable policy significance as it suggests that while not possible to eliminate, risks to users can be significantly mitigated by better design. The analysis adds, albeit tentatively, to the evidence base that threshold systems that curtail judicial discretion such as the interlinking of US federal threshold quantities with mandatory minimum penalties (Sevigny, 2009) increase the likelihood of disproportionate harm, showing that the interlinking of thresholds with deemed supply provisions also increase the likelihood of disproportionate harm. Finally, the findings show that those most disproportionately affected by drug trafficking thresholds are not necessarily the poor and marginalized (as per the dominant findings from the US Crack Cocaine 100:1 discrepancy). Instead, they can also be highly integrated users (ecstasy). This suggests that thresholds will not necessarily impact upon the same types of drug offenders, with risks shaped by factors including but not limited to the implicit and explicit assumptions on which thresholds were designed. This increases the need to better understand how thresholds came about, and more importantly, particularly given evidence of the former is so scant, to expand analysis of drug trafficking thresholds in other contexts and settings such that erroneous assumptions can be exposed and challenged. 12

13 In conclusion, evaluating and comparing six different Australian drug trafficking threshold systems shows that drug trafficking thresholds are by their very nature imbued with the potential for unjustified or inequitable sanction for users. Of greatest concern was the finding that Australian drug trafficking thresholds in all six states disproportionately placed ecstasy users (but not necessarily other illicit drug users) at risk of unjustified charge for an offence of trafficking. Yet, given thresholds systems that better reflected current drug market practices (that is patterns of use and consumption within the state) placed users at much less risk, this also gives hope that risks to users can be significantly reduced, by steps including increasing threshold quantities for ecstasy across Australia. This demonstrates why inter-jurisdictional threshold analyses are important so as to hold drug trafficking thresholds in other contexts to the same degree of scrutiny, to unearth and mitigate where possible instances where users are placed at risk and to feed into discussions about the worth and optimal design of thresholds for drug trafficking. Acknowledgements This study was funded by a grant from the Commonwealth of Australia: the Criminology Research Grants. The views expressed are the responsibility of the authors and not necessarily those of the Commonwealth. This study was conducted at the Drug Policy Modelling Program (DPMP), which is located at the National Drug and Alcohol Research Centre (NDARC), the University of New South Wales. DPMP is funded by the Colonial Foundation Trust. NDARC is supported by funding from the Australian Government. Professor Alison Ritter is a recipient of a National Health and Medical Research Council Fellowship. Sincere thanks are due to the providers of the principal data sources on which this study was based, most notably the Drug Trends team at NDARC and the Australian Institute of Health and Welfare. Sincere thanks are also due to Dr Matthew Sunderland for statistical assistance. 13

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