Why the current drug law does not make sense: Agnieszka Sieniawska explains.
Joanna Cieśla: Which of the stories of your clients do you remember the best?
Agnieszka Sieniawska: Perhaps, it is the story of a young man who came to our legal counselling unit and brought an indictment for possession of 400 grams of marijuana. I thought: “That’s a lot, maybe he is a drug dealer?”. Then I went through the document and found out that the prosecutor had indicated the gross weight, together with the packaging. That package was a backpack, wherein the cannabis was 0.3 g!
The cases associated with health problems are also moving. A girl, Polish, bred marijuana as she used it for treatment of post-traumatic stress in California. There medical marijuana programs operate legally. She had a certificate. The judge did not consider it and sentenced her to pay a fine and the judgement costs – a total of 9 thousand zlotys.
A guy with the Leśniowski-Crohn disease wrote to us. It is a rare disorder of the intestine, associated with an acute diarrhea. His mother takes him to the Czech Republic, so he can legally smoke a joint. It allows him to reduce the dose of steroids used. But perhaps the most shocking for me was a case of a man who was sentenced to one year of imprisonment, suspended for four years for possession of 0.2 grams of marijuana. In the fourth year, the police found again 0.2 g on him. The Court sentenced him again for 6 months of imprisonment, suspended for two years, but then the first penalty came into force. The court rejected our request for postponement, arguing that this case will set an example for our client’s peers. He was 38 years old.
Did he go to jail?
He got a cell with 16 other people, could use the phone once a week. He was anguished, had attacks of anxiety, mentally he could not do any longer. He was a Rastafarian. He felt hurt by the system of justice, as he was not a criminal and still believed that he had not committed any crime. His mother learned from me about the fact that he was in prison because he was ashamed to inform both her and his girlfriend. After three months, the court considered our request for commutation of the sentence on electronic monitoring. When half a year past, or half of the punishment period, we applied for canceling the rest of it based on the argument that our client met all the conditions and complied with the legal terms. The court rejected the request just because the client did not feel guilty for committing a crime.
Why did he smoke, since he knew that it could get him into trouble? Why do people smoke at all?
Why do people drink alcohol, if they know that alcohol is unhealthy? People used to always intoxicate themselves and will always do. The backpack boy was detained with a small amount of drugs a year after. He wanted to be a steward: he had received the university degree, undergone appropriate training. However, because of a conviction for possession of cannabis crumbs the plan collapsed, because in case of this job the employer required a clean criminal record. The system of justice and the public opinion do not take note of what therapists say repeatedly: the mere use of narcotic drugs is not a problem. People use substances as a consequence of having various other problems. No need to look for a public enemy in drugs.
But people get addicted.
10 percent of people who use substances to feel differently, get addicted to their use. It is a different question whether this proportion is large. However, in order to protect those who might become addicted, we have created a system which exposes all the others to very serious consequences and violates the Constitution. Denying a person right to choose with what to intoxicate him or herself, if his or her conduct does not endanger the health and safety of others, is contrary to the constitutional imperative to respect the basic freedoms and rights. You are going to the office or to a meeting, and someone suddenly stops you, searches your handbag, looks into your purse.
Moreover, the system itself has a lot of inconsistency. It convicts people for a gram of marijuana in their pockets on the basis of Article # 62 of the Act on Counteracting Drug Addiction, although the law states that possession of drugs is not when someone just has a psychoactive substance, but when it can be proved that he or she intends to share it with others, for example, to sell. By law, the mere possession of a joint in general should not be punished. In Poland, however, there is a principle of judicial independence and the rule of free interpretation of the evidence. You can appeal against the judgments in the court to eventually reach the Supreme Court, but usually our clients do not want to fight. They rarely decide to appeal, feel weak. Moreover, such fight is associated with additional costs.
Are there a lot of such cases?
In 2011, 37 thousand persons were convicted for possession of illicit substances, including 35 thousand convicted for possessing small quantities. Last year, after the introduction of the Article # 62a, allowing to discontinue the criminal proceedings, the prosecutors and the judges dealt with 18.5 thousand cases. The prosecutors discontinued every tenth case on the basis of Article # 62a. I also received data of the Parliamentary Analysis Bureau, which showed that in November 2012 in prisons there were 2.8 thousand people convicted for possession of drugs. Its cost exceeded 12 million zlotys. Only two out of a hundred were on electronic monitoring instead of the prison sentence.
Also we examined the cases of our clients. Last year 346 persons from all over Poland turned to us. We randomly chose 97 cases on possession of illicit substances, which ended last year. More than 80 percent of them were related to marijuana possession, of which over 80 percent involved the amount of up to 3 grams. In almost every second case, judgments were convicting. Most commonly, judgments implied suspended imprisonment, a fine, and supervision of a probation officer. Plus, the entry in the register of criminal records, limiting not only the possibility of finding a job, but also, for example, receiving an entry visa.
Do these cases have any standard scenario?
Usually, the detention occurs during a routine monitoring of streets or roads, during walks, in the parks. In the evening. The policemen usually stop a person based on his/her appearance, age, and the kind of the place.
Every policeman can just search anyone on the street?
The policeman should have the reason to do it. For example, a serious suspicion of committing a crime. Appearance itself is not a sufficient reason. But people do not protest and let the search because the authority says so. They extract the wallet, show the contents of their pockets and bags. If policemen find illegal substances, they seize them and take the person to the police detention unit. There they draw a detention report. In all such reports I saw it is written: “The suspect had – for example – 0.5 g of marijuana. There is a risk that the suspect will destroy the evidence and try to flee, therefore he is to be arrested”. It is also groundless. When the police finds drugs, it already has the evidence, so the suspect cannot cover the tracks. Despite this, the police applies 48 hour detention as a standard procedure.
Because drugs are a convenient enemy for the authorities. This enemy can be presented as a menacing, inhuman, frightening – and thus can help to impose their will on society. Only such an explanation convinces me.
What happens at the time of the detention?
Typically, the house is being searched, which itself is an absurd. What is more, the police searches the place of the registration of the suspect, for example, his/her parents’ house in Mielec, while the suspect studies and lives in Warsaw. And it is a double absurd.
They search assuming that someone who is carrying 0.5 grams of marijuana can have a whole storage at home?
The police uses this argument: such procedures allow to identify dealers. This is naive. The real dealers do not store drugs at home. Nowhere in the world the drug-related crime units use similar tools. They use operational methods, often work undercover inside the criminal groups.
In the report you cite the testimony of a man who was beaten by the police during the interrogation. Does it happen often?
At the beginning I thought it was an isolated incident, and now I see that in the course of the police interrogation the power is being notoriously abused. The police beats, threatens, trying to obtain information which is useless from the point of view of fighting the organized crime, but brings statistical effects . For example, they ask who else from among the suspect’s acquaintances smokes. This knowledge will serve the purpose to detain more people possessing a small amount of illicit substances and improve the statistical performance of detection. Eventually, the policemen convince the detainee to voluntarily submit to the penalty: the person has been already identified so the policemen want to finish and forget about the case. Prosecutors would offer from six months to a year’s imprisonment , suspended for a period of two to four years. The detainee would agree and leave the detention unit, but already with the criminal records.
Can I refuse to be searched?
Already at the time of detention we have a lot of mechanisms that protect us against the convicting machine. You can definitely ask what are the reasons for detention: it cannot simply be suspicion of possessing psychoactive substances.
If the police officer finds, say, a joint of marijuana, you should ask for respecting your rights. The detainee has the right to make a phone call on demand, for example, to contact parents and the lawyer. Our hotline is operating 24 hours and we can help you during the detention.
After the drugs are found you should demand to be released. If the policemen refuse and write in the report that there is a risk of fleeing, you should demand to contact the prosecutor. You can refuse to testify. Usually, detainees are frightened and able to say things which may harm them later, so you better act calmly, refuse to testify, and testify later during the interrogation by the prosecutor. If the prosecutor does not discontinue the criminal proceedings at once, nevertheless he/she must appoint an expert to examine whether the suspect is addicted or is a problematic user of psychoactive substances. In none of the cases we studied the expert had been appointed.
Intuitively we behave in a different way: if I submit, I will be treated better.
In this case it does not work. If the officer notices that you do not submit easily, the sooner he lets you go. This is what happens in reality, unfortunately.
You work in the organization funded by the state budget and instruct people how to resist the police.
Well, there is a certain contradiction here: the position of the government is adamant as far as the changes in drug policy in Poland are concerned. On the other hand, the government is funding our program and the activity of the Ombudsman for the rights of drug addicted people in order to alleviate the negative consequences of the barbaric law. Although you can simply change the law. Aleksander Kwaśniewski signed a law introducing a penalty of up to three years in prison for possession of any amount of illegal substances, and recently he apologized for having done so. I believe it was right.
But in 2008, the Deputy Prime Minister Grzegorz Schetyna established departments to combat drug crime in all municipal police offices.
During the first semester of operation, two-thirds of the detected crimes concerned possessing of small amounts of drugs or sharing. Only 35 percent were related to serious crimes: trafficking, smuggling, and manufacturing!
Do the changes introduced last year to facilitate the discontinuation of the criminal proceedings in case of small amount of drugs, move in the right direction?
The new rules were created based on the German model, there it took 30 years after the law adoption to shape a good practice. But to improve the application of the Article #62a, it is enough to make a small step: adopt a drug amount reference tables so to define which amount of an illegal substance can be considered “minor”.
Is it feasible?
Not in this Parliament. The draft amendment which stipulated this change was submitted by a group of 13 members of the Palikot Movement and three members of the Civic Platform. Janusz Palikot trivializes the problem, reduces and transforms it into a performance. Civic Platform resistance to it is astonishing. The draft lays in the drawer of the Parliament Speaker. I rely on Aleksander Kwaśniewski: if he engages in politics he may bring about the change of the drug law, preceded by a thorough debate.
Does the draft amendment also include the possibility of medical use of marijuana?
Yes, it does. Although the procedure to authorize THC for medical use is conducted separately. Sativex, a drug that contains THC and another substance deriving from marijuana, was included in the list of registered medicines. But in the case of many diseases cannabis only works when it is smoked. Besides, if pharmaceutical companies are given this market , they may lobby that THC can be permitted only in medicinal products. But cannabis can be grown in the garden. Of course, it is a substance that changes perception and its use has negative consequences, for example, can cause anxiety. But we need to start talking about it normally. Currently what we see is hysteria, performances, breaking peoples’ biographies, and improving the statistics of productivity.