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Prison & probation
Written by Monika Frommel   


The limits of prohibitive norms that have impact on internal attitudes but not on external behaviour

Monika Frommel, Institute of Criminology, University of Kiel, Germany

Is it possible to criminalise the consumption of certain 'illegal' drugs within the framework of a liberal criminal law?

The concept of liberal criminal law, conceived in the 19th century, is a normative construction, which has never been put into practice completely. The debate in the 20th century shows us that this concept can be reconstructed under the conditions of a democratic society (Holmes, 1993; Honneth, 1993). Liberal criminal law distinguishes between'external behaviour' which may be 'detrimental to society', and 'moral convictions' which ought to be free and unregulated.

Habits of consumption are a matter concerning the individual's personality and thus the identity of those subject to norms. They are closely associated to the spheres of moral conviction and should not, according to the liberal model, be impeded by criminal law. However, since subcultural conduct leads to types of external behaviour that a prescriptive legislator may define as a criminal offence, we find ourselves entangled in the contradictions of this controversial issue of liberal criminal law. 1 do not think we should try to attempt an unambiguous dissection of conduct (at some abstract level) into external behaviour and internal attitudes. Each criminal ban is morally charged and, therefore, not exclusive to external behaviour.

However, the concept of liberal law tends to deregulate habits of consumption, whereas the preventive approach - the mainstream in the 20th century - tends to regulate habits of consumption where there is a public interest, e.g. to restrict drug use because it is a prerequisite of drug dealing.

At the end of the 20th century we know that prevention by criminalisation fails. The consequence is a lack of legitimation: neither the concept of liberal law nor the preventive approach can legitimate the criminalisation of drug use or dealing with harmless drugs such as cannabis.

We have to distinguish between drug use and drug dealing. Dealing affects external social spheres. Drug dealers can be penalised following the logic of the concept of liberal criminal law when the banned drugs can cause damage to health (this is why, in the case of cannabis, conservatives claim - ignoring this drug's nature - that the health risk 'cannot be disissed').

Of course, the dealers'customers act at their own risk, endangering themselves. However, with regard to a state's controlling policy, it can be justified! to define, albeit vaguely, a legal concept of'public health' (as a public interest).

Matters are different when we turn to consumption. Without doubt, consumption is associated with private conduct, subcultural orientation and, therefore, with the identity of the individual in question. In the case of drug addiction, it may have consequences for the mental and physical health of the individual. However, following the logic of liberal criminal law, putting oneself at risk, whether through one's own fault or not, ought to be tolerated. Alternatively, the goals of public health policy apply.

Repressive drug policy follows the illiberal preventive approach which gained acceptance in the 1968 as directed against the 'drugs culture' of the antiauthoritarian generation. The illiberal preventive approach is explicitly directed at 'dangerous' attitudes and a criminogenic environment. This approach ignores the ineffectiveness of prevention by criminal isation. In my opinion, the days of this strategy are over. The principle of help over punishment in the case of drug addiction becomis more and more acceptable.

Most drug addiction is brought about through one's own fault. However, this'fault'might be seen as deriving from a kind of error of conduct. In fact, drug addiction reduces or even eliminates any deed-associated guilt. Even if they wanted to, addicts are not able to comply with the ban of drug consumption at the present time nor in the near future without the fear of relapse. Any strict dogma of abstinence is therefore utterly unrealistic. Someone who has created a certain internal reality through drug abuse, behaves at a psychologically deterministic level and is, at best, only able to change this situation on a long-term basis.

A repressively enforced ban of drug consumption results logically and practically in a vicious circle. The strict enforcement of norms leads to pauperisation and degeneration of the overt drug scene. It leads to a dilemma. In the following, therefore, we will take a closer look at the goal of penal institutions for drugaddicted prisoners.

How can institutions involved in criminal prosecu, tion and programmes for drug abuse deal profes, sionally with the contradictions inherent in the criminal law of narcotics?

We know that as long as the prevention of criminal offences constitutes the goal of the penal system, and as long as illegal consumption of drugs remains a criminal offence to be 'fought', it is difficult to offer help at the same time. Prisoners are prevented from tackling their problem openly, even assuming they consider their drug addiction a problem at all. Thus their right to medical care cannot be implemented. This kind of repressive approach, which also focuses on drug use, will lead to irreconcilable contradictions within penal institutions at both a logical and practical level.

Even outside the walls of prisons, the orientation of criminal policy on the one hand, and the demands of adequate medical care on the other hand, lead to severe problems. In fact, the criminal law of narcotics does allow doctors to treat their drug-addicted patients. Yet it is not the criminal law of narcotics but its enforcement regulations that cause problems for doctors in Germany. These low-level regulations limit the number of recognised treatments without any consideration for their individual effectiveness. Reluctant doctors are relieved of their legal obligation to provide medical treatment, and those doctors who employ substitution therapy are burdened with financial risks. This is because health insurance companies, referring to these regulations and the corresponding guidelines, only refund the actual costs in part or not at all.

In all other situations, doctors are obliged to provide adequate assistance whenever illness occurs. In the case of drug addicts, however, they can choose whether to help or not. If they decide on what they consider to be a reasonable course of treatment, such as substitution, they are entirely free to do so according to the principle that grants them freedom of choice to select a therapy. Typically, however, the costs incurred will not be refunded due to the restrictive guidelines, imposed by a panel of doctors and health insurance companies, which permit the refusal of finance for this kind of therapy.

The legislation tolerates the fact that the association of health insurance companies stipulates far more restrictive conditions than those required by the criminal law of narcotics itself. It is not so much the framework of criminal law that creates these problems, as much as a delegated body of rules, an executive law, that causes the desolate situation of programmes for drug abuse in Germany. In a dernocracy based on the separation of powers, this is an intolerable situation which creates a serious impediment to programmes for drug abuse, even outside penal institutions.

Within the penal system in Germany, it is not so much the question of costs that have rendered adequate medical care impossible, but a far too crude theory ofhow to prevent relapse. Therefore, it is necessary to analyse the prevention of relapse (alsocalled recidivism) as the most important goal of imprisonment.

In its 1994 ruling on cannabis, the Bundesverfassungsgericht, the German Federal Constitutional Court, exempted the purchase of small amounts of drugs for individual consumption from strict punishability (applying to all drugs, not just cannabis) and laid down the approach of diversion.

Disregarding the dispute as to what constitutes a small amount, an unusual principle adies from this ruling: a ban without the pursuit of a convict-ion. Delegitimising drug use, it relaxes in minor cases the requirement of compulsory prosecution.

Those favouring the legalisation, or at least decriminalisation, of cannabis and other harmless drugs were disappointed with this half-hearted ruling. Still, those who are willing and able to deal with compromises cleverly may develop this formula further. Applied to penal institutions it means that, for drug addicts, the goal of imprisonment must not be the strict prevention of relapse, that is the sanctioning of consumption in prisons. If, outside prison walls, consumption is not prosecuted but only delegitimised as'banned', it cannot be the task of prison authorities toprevent the consumption of drugs atall costs.

At present, the staff in prisons follow the dogma of abstinence and the goal of strict prevention of relapse in drug use. They regularly examine urine specimens and check cells for any utensils of drug consumption, including sterile syringes. When indications of illegal drug consumption are found, this leads to direct and indirect sanctions within the institution. The granting of extra privileges, for instance, as provided for by the law of prison administration, may be denied. Whether unwittingly or deliberately, this practice follows the dogma of abstinence as formulated in 1968. Since this dogma, however, turns out to be utterly unrealistic for drug addicts, it will neither avoid relapse nor guarantee basic medical care for the prisoners.

Since the ruling of the German Federal Constitutional Court of 1994 these practices cannot be accepted any longer. Given the newly established principle that criminal prosecution authorities are obliged to abandon any prosecution for drug use (the non-presentation of charges), we can attempt to transfer this to the interpretation of the goal of imprisonment. It then follows that drug use by itself does not warrant any sanctions (and therefore no checking either). Drug consumption has to be tolerated, within limits, provided no drug dealing is taking place at the same time. (Consumption, however, does not substantiate any justifiable suspicion of dealing.) 1 am fully aware that reality in prison is entirely different from my interpretation. But 1 think it is not unrealistic to establish this principle for the future.

Modifying the goal of imprisonment in this way facilitates the next step - the assessment of relapse prevention versus programmes for drug abuse. The dilemma turns into a problem that may be handled pragmatically. It becomes possible to deal openly with the problem of drug addiction in prisons and to develop and provide relevant help schemes. The requirement for adequate medical care follows from the principles of the welfare state, as well as from the specific obligation to provide for prisoners. Accordingly, prisoners have a de jure enforceable right to basic medical care.

Not abstinence but controlled drug use must be the goal guiding prison administration. This means that all prisons must offer various substitution therapies, as otherwise it is impossible for the addict to become used to regulated drug usage. In the long term, one might aim at allowing the prescription of heroin and other illegal hard drugs under controlled conditions, in order to offer drug addicts a realistic perspective of improving their situation. At any rate, the current situation in prisons is in conflict with the principles for prison administration law as developed here, applying the constitutional court ruling mentioned above.


The dilemma can be solved. It is irreconcilable when the goal of imprisonment is defined as strict prevention of relapse. But the German Federal Constitutional Court relaxes the requirement of compulsory prosecution in minor cases, as such drug use is defined. However, as soon as the dogma of abstinence is abandoned, because it is inconsistent with the principles of the welfare state and the fundamental right of prisoners to basic medical care in imprisonment, one gains the necessary scope of action.

Although strict adherence to norms may be required contrafactually in society (symbolic prohibition), it cannot be implemented. The goal of penal institutions, defined in compliance with the constitution, is not the strict prevention of relapse but a step-by-step improvement of the prisoners' prognosis. Minor criminal offences such as the mere consumption of illegal drugs have to be tolerated. The dilemma must be solved in favour of improved programmes for drug abuse, given that medicarcare is a fundamental right. The state, however, maintains an interest in the ban of drug consumption as an arbitrary goal of criminal policy which can be modified by legislation at any time.


Behind prison walls it is typically the same people who are burdened with two conflicting tasks. On the one hand, they are there to help the prisonersolve his other problems. On the other hand, they are in charge of law, order and safety within the institution and are expected to enforce goals as defined by criminal policy. This latent contradiction turns into a manifest problem if one sees - 1 think, realistically - drug consumption as a prerequisite of drug dealing in high amounts, which in my solution can be sanctioned. One and the same person cannot prevent drug dealing and, at the same time, react adequately to the problems of drug addicts. Therefore, the functions have to be divided among different groups of institution staff.

Let us then look at definite improvements. For example, the approach presented here is compatible with the requirementfor low-dosage availability, disposable syringes and easy access to them. This puts the staff to a severe test. It should only be considered once the medical service has handed out sterile syringes over a trial period and only if adequate substitution therapy is available. The prison staff too must follow the maxim'learning by doing'.

But even before the learning by doing starts, typical basic conditions will have to be modified. The staff must be instructed by their superiors not to carry out any inspections aimed solely at establishing drug consumption. According to the view discussed here, urine analysis and inspections as they are carried out at present are not consistent with the penal goal. They contravene the principles of the welfare state to reduce negative consequences of imprisonment and to guarantee fundamental rights of the prisoners, and they are inadequate or disproportionate since they impede programmes for drug abuse without preventing drug consumption. Drug use as such must not be declared an offence against'order'or'safety'of the prison. Since programmes for drug abuse must be the primary concern, the conventional dogma of abstinence is not an adequate organising principle.

It is, of course, implicit in the logic of imprisonment that these principles and regulations cannot be implemented without circumvention and only by degrees. For this reason, programmes for drug abuse ought to be left in the hands of the medical staff or people who run external programmes for drug abuse. In practice, this will lead to a larger number of external welfare workers and external doctors working in prisons.


Holmes, S (1993). The Anatomy of Antiliberalism. Cambridge/Mass: Harvard University Press.

Hormeth, A (Hrsg) (1993). Kommunitarismus. Frankfurt/New York: