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The joint submission to the Committee on the Elimination of all form of Racial Discrimination (CERD) provides valuable feedback on the first draft of the General Recommendations N. 37 on racial discrimination in the enjoyment of the right to health. Among other things, the submission provides evidence of the role of drug policies as a driver of racial discrimination and urges the Committee to recognise explicitly in the draft that contact with the criminal legal system is a social determinant of health, and that States have the obligation to reform criminal laws, policies, and practices with racially discriminatory outcomes - including drug-related laws, policies, and practices. The submission was co-signed by IDPC, Amensty International, Centre on Drug Policy Evaluation, Centro de Estudios Legales y Sociales, Drug Policy Alliance, Release and Harm Reduction International.
Discriminatory impact of drug laws
Overwhelming evidence shows that people of African descent, Indigenous people, and other racial and ethnic minorities are disproportionately targeted in all phases of the enforcement of drug laws and policies, from stops and searches to arrests, prosecutions, or incarceration.
People of colour and ethnic minorities are searched, arrested, and incarcerated mostly for minor drug offences such as drug possession and personal use. In the UK, the discriminatory practice of stop-and-search is carried out ‘on reasonable grounds’ of simply ‘carrying’ a drug, which has no relation to any trafficking activity. In the US, the leading cause of arrests are drug charges, which comprise over 1.5 million arrests per year; data between 2008-2018 consistently show that possession of drugs comprise over 80% of drug arrests. In the European Union, out of the 1.5 million drug offences reported in 2021, 64% of them concerned possession of drugs rather than trafficking. In 2002, the UN also estimated that out of the 3.1 million people arrested for a drug-related activity, 61% were arrested for mere drug use.
The higher rates of searches, arrests, or incarceration for possession of drugs are not justified by a higher prevalence of drug use amongst communities of colour; rather they reflect law enforcement’s greater focus and greater use of violence and force in urban areas, lower-income communities, and communities of colour. In the US, the 2021 National Survey on Drug Use and Health found similar rates of illegal drug use amongst Black (24.3%) and white (22.5%) people.22 More generally, the UN Office on Drugs and Crime has noted that ‘the wealthier sectors of society have a higher prevalence of drug use.
Criminal system and Social determinant of health
Evidence shows that contact with the criminal legal system is a critical social determinant of physical and mental health. While most research has been done on the consequences of incarceration, a growing body of evidence shows that this happens in every form of contact with the criminal legal system, and that encounters with the police and arrests have negative impacts on mental health and well-being.
There is also abundant evidence on the specific health harms of criminalising drug use and possession for personal use. A literature review focusing on nine countries (Canada, China, India, Malaysia, Mexico, Russia, Thailand, Ukraine, and the US) found that policing is associated with higher risks of HIV infection among people who inject drugs and with higher HIV risk behaviours, including avoidance of harm reduction services. A global analysis published in 2021 by Georgetown University showed that the criminalisation of drug use or possession for personal use was associated with 14% lower rates of both people who knew their HIV status and people who had suppressed their HIV viral charge. A survey of 731 women who inject drugs in Indonesia found that being exposed to policing and arrest was linked with a 29.6% reduction in past-month access to needle and syringe programmes.
Access to Harm Reduction Services
Racial discrimination and structural inequalities have hindered access to harm reduction services for Black, Brown, and Indigenous people who use drugs; including on access to opioid agonist therapy, needle and syringe programmes, and viral hepatitis treatment.
Suggestions for the first draft
In view of the foregoing, we respectfully suggest the incorporation of a new paragraph immediately after current para. 19, in order to recognise that contact with the criminal justice system is a social determinant of health, and its relevance to freedom from racial discrimination in the enjoyment of the right to health. The following draft language is presented for consideration:
‘Criminal laws have been disproportionately used against racial and ethnic minorities. Contact with criminal legal systems at any stage, including stops and searches, arrests, prosecution and incarceration, is associated with worse outcomes in physical and mental health, and should be therefore considered as a social determinant of health. Involvement with the criminal legal system is also associated with violations of the right to be free from non-consensual medical treatment, including in the form of compulsory or coerced treatment imposed by ordinary judicial bodies and drug courts. Therefore, criminal laws, policies and practices that have discriminatory outcomes or that disproportionately impact people of African descent, Indigenous peoples, or other ethnic groups, including drug-related laws, policies and practices, violate freedom from racial discrimination in the enjoyment of the right to health.’
We also respectfully suggest the inclusion of the following paragraph to section IV.(A), concerning recommendations on legislative and policy related matters:
‘In order to comply with their obligations to protect people from racial discrimination in the enjoyment of the right to health, States should recognise that contact with the criminal legal system is a social determinant of health, and should move to tackle the discriminatory application of criminal law at every stage, including by prohibiting racial profiling, and reforming drug-related policies, laws and practices with discriminatory outcomes, including laws that criminalise drug use and possession for personal use. States should discontinue drug courts or other diversion programmes that coerce people into medical treatment, and ensure that any drug treatment is voluntary and safeguarded by informed consent. Furthermore, States should redirect resources from the billions spent on drug control to fund evidence-based, non-discriminative, and tailored harm reduction and other health and social services for the people impacted by drug policy.’