Threshold quantities (TQs) for drug law and policy are being experimented with across many jurisdictions. States seem attracted to their apparent simplicity and use them to determine, for example, whether: a possession or supply offence is made out (e.g. Greece); a matter should be diverted away from the criminal justice system (e.g. Portugal); or a case should fall within a certain sentencing range (e.g. UK).

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Looking at examples from the EU and beyond, however, it is becoming clear that there are no ‘magic numbers’ in drug policy and that this tool brings its own complications and pit-falls. This briefing will therefore seek to provide an overview of the current discussion around TQs and will explore the mechanism of TQs including their benefits and drawbacks as a policy and legal tool.

Key Points

• TQs recommend themselves to policy-makers as a legal short-hand that has the potential to save time and money, but they should be used with caution as they also carry the risk of wrongful conviction, disproportionate responses, and impracticality in the field.
• The key factors for gauging an appropriate response to drug use and trafficking are intention, culpability, and harm as regards which TQs can only be indicative and not decisive.  TQs should be used within a system of active discretion that takes into account all the circumstances of an offence or offender.
• The presumption of innocence is a fundamental tenet of international law.  As such, TQs should never be used to reverse the burden of proof i.e. they should not be binding or presumptive and above the TQ the presumption of innocence should continue to apply.
• TQs have least disadvantages when used to ‘downscale’ a State’s response to drugs and to activate exemption or diversion away from the criminal justice system as a broad package of health-oriented reforms supported by training, investment and infrastructure.

CONCLUSION

In an ideal world, appropriate charging decisions and sentencing would be decided by an incorruptible and indiscriminate agent of the state on a case by case basis taking into account all the relevant circumstances and based on an objective, evidence-based index of harm.  Ours is not, however, an ideal world, but an arbitrary and often discriminatory or corrupt one and always one of stretched resources where any short hand that can save the time of the police officer on the street or the judge at court is welcome to policy-makers.  

In this regard TQs do not import any magic but are an imperfect tool, importing their own risk of wrongful conviction and disproportionate response or simply being impractical in the field.  In addition, there are clear gaps in the research and rational that underpins TQs not least because the lack of an objective evidence-based harm index (were such an index even possible bearing in mind the importance of local factors).

The value and utility of TQs will depend on the robustness, integrity and resources of a State’s institutions. Where there is an appetite for this policy tool, the international case-studies provide some tips for best practice:

1. TQs have least disadvantages when used to ‘downscale’ a State’s response to drugs and to activate diversion away from the criminal justice system as a broad package of health-oriented reforms supported by training, investment and infrastructure. 
2. The presumption of innocence is a fundamental tenet of international law.  As such, TQs should never be used to reverse the burden of proof i.e. they should not be binding or presumptive and above the TQ the presumption of innocence should continue to apply. 
3. TQs should be indicative only and always used within a system of active discretion, that takes into account all the circumstances of an offence or offender. 
4. TQs should be informed by objective scientific advice and open consultation with all interested parties.
5. There should be information sharing between States as to their setting of thresholds, their aim in so doing, and the indices of harm used. There should be moderation of policy outcomes with data collection. 
6. TQs should be set within primary legislation, containing a sunset clause that provides for review by experts at regular intervals in order to keep pace with the changing nature of evidence as to drug harms and drug use and the development of local factors as well as to allow responsiveness where negative unintended consequences emerge. 
7. TQs should be practical and pragmatic, matched to the resources and abilities of those actors tasked with implementing and enforcing them. In particular: they should be based on general mass rather than purity albeit provisions should be made for purity- analysis in cases which are challenged; and, they should be set at a high enough level to provide a safeguard against the need to re-divert cases and moreover, to leave no danger of wrongful conviction or excessive sentence for the legitimate user.

In short, flexibility, practicality and scrutiny should accompany any TQ scheme and policy makers should not lose sight of what is really significant – intention, culpability, and harm.

This paper is indebted to the interventions made at the TNI-EMCDDA Expert Seminar on Threshold Quantities in Lisbon on 20 January 2011, and the exhaustive data collection and comparative analysis undertaken by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA), from which much of the data and country examples are taken.

See also: How to determine personal use in drug legislation: The “threshold controversy” in the light of the Italian experience, by Grazia Zuffa, Series on Legislative Reform of Drug Policies Nr. 15, August 2011