The Norwegian decriminalization model (proposed bill)
On February 19th this year, Norway's government presented a bill for drug decriminalization based on recommendations made by an expert committee in December 2019. The details may have to be modified for the bill to pass, since at least one of two undecided opposition parties must support it. Below is a summary of the most important ones prior to modification:
Offenses regulated by the new model
The new model regulates the use, possession and acquisition of any drug on the narcotics list in a limited amount, provided that the drug is for personal use. Possessing or acquiring a drug with the intent to sell or share it with others falls outside of the scope of the model, as does producing drugs, cultivating plants on the narcotics list and acquiring drugs by smuggling or mail order from abroad, even if the amounts are small and for personal use.
For the offenses included in the new model, criminal sanctions such as fines, imprisonment and community service are replaced by mandatory counseling sessions in a municipal drug unit staffed by health and social workers. In addition to providing information about drug use and drug laws in a mandatory lecture, the units may enter into further dialogue with users, assess their needs and aid them in getting treatment, provided that they consent. Minors must as a general rule report for counseling accompanied by a parent or other legal guardian, who may consent to treatment on their behalf if they are below the age of 16.
The new model regulates the use, possession and acquisition of any drug on the narcotics list in a limited amount, provided that the drug is for personal use. Possessing or acquiring a drug with the intent to sell or share it with others falls outside of the scope of the model, as does producing drugs, cultivating plants on the narcotics list and acquiring drugs by smuggling or mail order from abroad, even if the amounts are small and for personal use.
For the offenses included in the new model, criminal sanctions such as fines, imprisonment and community service are replaced by mandatory counseling sessions in a municipal drug unit staffed by health and social workers. In addition to providing information about drug use and drug laws in a mandatory lecture, the units may enter into further dialogue with users, assess their needs and aid them in getting treatment, provided that they consent. Minors must as a general rule report for counseling accompanied by a parent or other legal guardian, who may consent to treatment on their behalf if they are below the age of 16.
Reactions for different drug amounts
The use of a drug, as well as possession and acquisition of amounts up to a threshold limit (see list below) are non-criminal offenses in the new model. These may not incur any administrative sanctions, nor appear on a criminal record or be kept record of in any other register used for employee background checks.
Users apprehended by police for these offenses must report for counseling, with failure to do so being a sanctionable (albeit still non-criminal) offense that may result in an administrative fine of about 2,400 NOK. The fine shall be waived for socially disadvantaged individuals, and attempts shall first be made to reschedule the session. If a minor or their legal guardian fails to report for counseling, child welfare services will be notified, and the legal guardian can be fined individually.
First tier of threshold limits – amounts for which the possession or acquisition of up to three different drugs is decriminalized if the drug is for personal use:
Cannabis: 10 g
Heroin, (meth)amphetamine, cocaine: 2 g
GHB/GBL: 0.5 dL
MDMA: 0.5 g
LSD: 1 blotter or 1 mg
Magic mushrooms: 20 g
Pharmaceuticals: 15 times an intoxicating dose*
Khat: 500 g
*Defined in jurisprudence as 15 mg diazepam, 30 mg oxycodone etc.
Possession and acquisition of amounts in a second, higher tier remain criminal offenses in the new model, but are subject to diversion. This means that prosecutors may decide not to indict users on the condition that they report for counseling. Failing to report for counseling in these cases shall not incur administrative fines, but may trigger indictment. However, the court shall consider waiving the penalty or making it suspended on certain conditions. The prosecution's decision not to indict a user can be unconditional if counseling is deemed unnecessary, for instance if someone is already receiving treatment for a drug problem. Also, possession or acquisition of amounts above the second tier of threshold limits may still be met with diversion in special cases.
Second tier of threshold limits – amounts for which the possession or acquisition of up to three different drugs is criminalized, but subject to diversion if the drug is for personal use:
Cannabis: 15 g
Heroin, (meth)amphetamine, cocaine: 5 g
GHB/GBL: 1 dL
MDMA: 1 g
LSD: 3 blotters or 2 mg
Magic mushrooms: 50 g
Pharmaceuticals: 25 times an intoxicating dose
Khat: 2 kg
Police powers and standards of proof
When investigating non-criminal offenses in the new model, police will have limited powers. They may search suspected users' pockets and clothing, bags, vehicles or public lockers, while body cavity searches, forced drug tests, cell phone/computer searches and home searches are prohibited on these grounds. However, the criminal procedure act allows police to search third parties for evidence of a criminal offense. Thus, users' cell phones, computers or homes can still be searched for the purpose of securing evidence against a drug trafficker, provided there is good reason to believe that such evidence can be found.
The standard of proof for initiating non-criminal searches is a preponderance of evidence, i.e. more than 50 percent likelihood. This is the same as the standard of proof for initiating searches in criminal cases. Police may also examine suspected drug users for symptoms of intoxication by checking for abnormal pupil response, pulse, psychomotor ability et cetera. Initiating this examination requires less than a preponderance of evidence.
Importantly, a preponderance of evidence is also the standard for proving non-criminal offenses in the new model, which is made possible by the absence of both criminal and administrative sanctions. (Mandatory counseling is not a sanction, and failing to report for counseling is a separate offense.) This differs from the Portuguese model, wherein non-criminal offenses may incur administrative fines that require a higher standard of proof.
The low standard of proof in the Norwegian decriminalization model means that limited police powers are sufficient for investigating non-criminal offenses, since a positive drug test will no longer be necessary to prove use (but users may ask to take one if they claim to be wrongfully accused), nor will finding a drug on someone's person be necessary to prove acquisition or possession in some cases. It also means that more users will receive a formal reaction than in a model with a higher standard of proof, as fewer cases will be dropped due to insufficient evidence and/or police resources.
The absence of sanctions for the non-criminal offenses also means that users may be obliged to testify in court in some cases, as speaking about non-criminal drug use or acquisition does not involve a risk of self-incrimination. However, they may still be excused if there is reason to believe that testifying would put them at risk of reprisals.
Restorative measures
The current proposal does not entail expungement of users' criminal records for past offenses that would be non-criminal under the new law, nor pardons for convictions occurring in the interim between the bill being passed and the law entering into effect.
The use of a drug, as well as possession and acquisition of amounts up to a threshold limit (see list below) are non-criminal offenses in the new model. These may not incur any administrative sanctions, nor appear on a criminal record or be kept record of in any other register used for employee background checks.
Users apprehended by police for these offenses must report for counseling, with failure to do so being a sanctionable (albeit still non-criminal) offense that may result in an administrative fine of about 2,400 NOK. The fine shall be waived for socially disadvantaged individuals, and attempts shall first be made to reschedule the session. If a minor or their legal guardian fails to report for counseling, child welfare services will be notified, and the legal guardian can be fined individually.
First tier of threshold limits – amounts for which the possession or acquisition of up to three different drugs is decriminalized if the drug is for personal use:
Cannabis: 10 g
Heroin, (meth)amphetamine, cocaine: 2 g
GHB/GBL: 0.5 dL
MDMA: 0.5 g
LSD: 1 blotter or 1 mg
Magic mushrooms: 20 g
Pharmaceuticals: 15 times an intoxicating dose*
Khat: 500 g
*Defined in jurisprudence as 15 mg diazepam, 30 mg oxycodone etc.
Possession and acquisition of amounts in a second, higher tier remain criminal offenses in the new model, but are subject to diversion. This means that prosecutors may decide not to indict users on the condition that they report for counseling. Failing to report for counseling in these cases shall not incur administrative fines, but may trigger indictment. However, the court shall consider waiving the penalty or making it suspended on certain conditions. The prosecution's decision not to indict a user can be unconditional if counseling is deemed unnecessary, for instance if someone is already receiving treatment for a drug problem. Also, possession or acquisition of amounts above the second tier of threshold limits may still be met with diversion in special cases.
Second tier of threshold limits – amounts for which the possession or acquisition of up to three different drugs is criminalized, but subject to diversion if the drug is for personal use:
Cannabis: 15 g
Heroin, (meth)amphetamine, cocaine: 5 g
GHB/GBL: 1 dL
MDMA: 1 g
LSD: 3 blotters or 2 mg
Magic mushrooms: 50 g
Pharmaceuticals: 25 times an intoxicating dose
Khat: 2 kg
Police powers and standards of proof
When investigating non-criminal offenses in the new model, police will have limited powers. They may search suspected users' pockets and clothing, bags, vehicles or public lockers, while body cavity searches, forced drug tests, cell phone/computer searches and home searches are prohibited on these grounds. However, the criminal procedure act allows police to search third parties for evidence of a criminal offense. Thus, users' cell phones, computers or homes can still be searched for the purpose of securing evidence against a drug trafficker, provided there is good reason to believe that such evidence can be found.
The standard of proof for initiating non-criminal searches is a preponderance of evidence, i.e. more than 50 percent likelihood. This is the same as the standard of proof for initiating searches in criminal cases. Police may also examine suspected drug users for symptoms of intoxication by checking for abnormal pupil response, pulse, psychomotor ability et cetera. Initiating this examination requires less than a preponderance of evidence.
Importantly, a preponderance of evidence is also the standard for proving non-criminal offenses in the new model, which is made possible by the absence of both criminal and administrative sanctions. (Mandatory counseling is not a sanction, and failing to report for counseling is a separate offense.) This differs from the Portuguese model, wherein non-criminal offenses may incur administrative fines that require a higher standard of proof.
The low standard of proof in the Norwegian decriminalization model means that limited police powers are sufficient for investigating non-criminal offenses, since a positive drug test will no longer be necessary to prove use (but users may ask to take one if they claim to be wrongfully accused), nor will finding a drug on someone's person be necessary to prove acquisition or possession in some cases. It also means that more users will receive a formal reaction than in a model with a higher standard of proof, as fewer cases will be dropped due to insufficient evidence and/or police resources.
The absence of sanctions for the non-criminal offenses also means that users may be obliged to testify in court in some cases, as speaking about non-criminal drug use or acquisition does not involve a risk of self-incrimination. However, they may still be excused if there is reason to believe that testifying would put them at risk of reprisals.
Restorative measures
The current proposal does not entail expungement of users' criminal records for past offenses that would be non-criminal under the new law, nor pardons for convictions occurring in the interim between the bill being passed and the law entering into effect.