The War on Drugs

Overview: Courts play a central role in sustaining the punitive and racialized logic of the global War on Drugs, treating drug-related offenses as matters of moral failure and criminality rather than public health or social inequality. In doing so, they reinforce patterns of racist policing and disproportionately harsh punishment against racialized and migrantized communities, while largely ignoring the structural conditions–such as poverty, exclusion from the formal economy, and unequal access to care–that shape people’s involvement with drugs. Court observations reveal how judges draw on flawed and stigmatizing ideas about drug use to derive negative “social prognosis” assessments and justify harsh sentences, even in low-level cases. At the same time, recent legal reforms like the partial legalization of cannabis are applied unevenly, benefiting more privileged groups while leaving repressive practices intact for others. In this way, courts do not merely apply drug laws but actively reproduce a system that criminalizes, pathologizes, and marginalizes people–particularly those affected by racism and intersecting social forces–under the guise of legality and “help.”

By historical standards, the global prohibition of certain substances is a new phenomenon. The current system dates from 1961, when the Single Convention on Narcotic Drugs–now ratified by almost every UN Member State–was first adopted.¹ 65 years later, the global War on Drugs has failed to curb drug markets or to protect the health of communities.² But it has been remarkably successful as a tool to expand and normalize the punitive power of the state.

From the start, the global drug control system was rooted in deeply racist assumptions about which substances should be banned, and which not. For example, the 1961 Single Convention commits the entire international community to prohibit cannabis and the coca leaf, which have been historically grown and used by communities in the Global South, while tobacco and alcohol are left untouched. Since then, drug policies have continued to be designed and implemented along racial lines, at the international and local levels.³ Evidence of racist enforcement of drug laws on Black, Brown, and Indigenous people has emerged in every jurisdiction where data has been collected, including Canada,⁴ Singapore,⁵ the United Kingdom,⁶ and the United States.⁷ Disparities exist at every stage of the criminal legal system–in stop-and-searches, arrests, sentencing, and incarceration rates.

Drug laws and the “color line” in Germany

Germany has been no exception to the racist enforcement of drug laws. In Germany, people from racialized and migrantized communities are disproportionately policed and punished for drug-related offenses.⁸ This is driven by practices such as widespread racial profiling by police,⁹ and local laws that grant police authority to control people without individualized suspicion in self-designated “crime hotspots”,¹⁰ which tend to be in migrantized or racialized neighbourhoods.¹¹ Police concentrate resources on these neighborhoods, making it so that drug use and supply in these neighborhoods is more likely to be discovered; police also use drug law enforcement as a pretext for controls.¹² Of the total police-logged cases of drug law violations, 31.6% were against non-German citizens, which attests to the racialized (and racializing) disparities in drug law enforcement.¹³

Enforcement of drugs has targeted people from racialized and migrantized groups despite evidence of similar levels of drug use among groups in Germany.¹⁴ In addition, research shows that recreational drug users are most likely to buy drugs from friends or private dealers, in a market primarily served by German citizens.¹⁵ This means that the concentrated use of police powers in migrantized populations leaves untouched most drug supply.

Police agencies dedicate considerable resources to drug law enforcement. In 2024, the police logged approximately 151,000 drug cases.¹⁶ Ultimately, the state sentenced over 33,714 people to drug-related offenses that year.¹⁷

Our court observations reveal that drug cases are generally handled harshly, with stigma and racism driving severe sanctions, including the frequent use of pretrial detention, even in cases pertaining to low quantities of drugs. While migrants with insecure migration status are always vulnerable to the overuse of pretrial detention, in drug cases in particular courts judge harshly and are prone to use the blunt tool of locking people up, failing to grapple with the socioeconomic context of the case before them.

The 2024 Cannabis Act versus the prohibitionist paradigm

In 2024, the Cannabis Act (CanG) legalized the cultivation and possession of cannabis for personal use, and created a regulatory framework for its supply through non-profit cannabis associations.¹⁸ It is yet to be seen if this model will succeed in replacing the illegal market, but it marks a clear departure from the prohibitionist paradigm: for the first time since 1929, it is legal to possess and use cannabis in Germany, under certain conditions. The number of offenses related to cannabis logged by the police dropped by approximately 65% from 2023 to 2024, the year the law came into force.¹⁹

CanG also reduces penalties for people engaged in the illegal distribution of cannabis to adults, but prison penalties of up to five years as well as certain mandatory minimum sentences remain in place.²⁰ Before the law was adopted, Justice Collective denounced that CanG risked creating a two-tiered cannabis framework: On the one hand a legal supply chain structured through cannabis associations, served by and operated for white people; on the other, a still-criminalized market where racialized people would remain subject to policing and punishment.²¹

Several cases observed by Justice Collective took place immediately before or shortly after the adoption of CanG. In each of these cases, Justice Collective observed how prohibitionist logics around cannabis persisted, including after the law change. Judges, prosecutors and lawyers seemed to be vaguely aware of the new act but were not familiar with its content. In one instance (Case 35), the judge instructed the prosecutor to simply ignore that CanG had been passed, and to seek punishment as they would have under the old law, even though CanG had reduced the penalty range for the offenses at hand and should have been taken into consideration.

Throughout different cases we see that the courts are reluctant to engage with the new law, and more importantly, with its challenge to the prohibitionist paradigm. If cultivating, acquiring, and possessing cannabis is now legal in Germany, why imprison people who distribute it? Instead, the courts continue to offer strong moral condemnation for those who sell cannabis, with hefty fines and prison sentences on top. This persists even as more privileged people able to navigate the new cannabis association system can acquire cannabis without similar consequences.

Racialized disparities frequently come to the surface. In Case 22, the actions of the defendant are explicitly scandalized on account of him not being from Germany. In contrast, when a white native German speaker is caught with 15 small bags of cannabis, the court accepts the person’s account of possession for personal use (Case 37). The difficulty and discretionality of distinguishing possession for personal use from possession for distribution when small quantities are involved underscores the need to decriminalize both.

Reducing people to their drug use

Justice Collective has observed several cases in which a person is charged with theft and has a history of drug use. These cases reveal a complex interplay between drug use and socioeconomic circumstances, which courts flatten. The cases show the stigmatizing significance that courts attribute to drugs, particularly when the defendant is racialized.

For judges, prosecutors, and lawyers, virtually all forms of drug use are inherently problematic and appear to increase the likelihood of criminal offenses. This perspective fails to account for the reality that only a small percentage of people who use drugs experience a dependence, a percentage estimated at under 14% in a 2022 report.²² It also pathologizes every drug use, ignoring that using psychoactive substances is for a large part of the population a valuable personal choice, a strategy to manage the struggles of one’s own life, as well as enjoyed for its pleasures.

Courts see drug use as the all-explaining, self-evident cause for a person’s involvement in a criminal offense.²³ The criminal legal system reduces people who use drugs to their drug use only, ignoring other circumstances in their life. Structural factors such as poverty, lack of housing, or experiences of violence or discrimination become practically irrelevant. It is only the incapacity to “say no” to drugs that counts (Case 31).

Drawing attention to a person’s drug use is a risky strategy in court. Its implications will shift from case to case, at the discretion of the judge. In some instances, drug use will be a mitigating circumstance, as it diminishes the culpability of the defendant. But it will often become an aggravating factor. In these cases, drug dependence or recurrent drug use indicate a bad “social prognosis”; that is, a sign that a person is not showing improvement, and that they are likely to continue breaking the law (Case 32).

Taking responsibility or passing the buck

Drug use is also a clear sign of moral failure for the court, reflecting a failure to take responsibility for one’s own life. The courts are very clear that finding care and support is exclusively the responsibility of the defendant, not of the state. The specific challenges that may be faced by migrant persons who use drugs in finding treatment, including legal barriers to accessing services, poverty, and isolation are ignored.²⁴ Remarkably, in one instance (Case 29) the judge admits that treatment may not be accessible to the defendant due to language barriers, but she scolds him all the same.

These practices are contrary to Germany’s obligations under international human rights law. UN human rights bodies have made clear that under the International Covenant on Economic, Social, and Cultural Rights, states must provide services that are continuously available, accessible to everyone, acceptable to each person, and of sufficient quality.²⁵ The obligation lies with the state, not the person. But when a migrant uses drugs, human rights are turned upside-down, and the state passes the buck.

Punishment = help?

Too often, courts refuse to recognize that social and economic factors determine the consequences of a person’s drug use, and their access to treatment and care. If somebody has a problem with drugs, it is taken to be simply because they lack the will to stop using, or to seek help. According to this logic, coercion becomes a measure of first resort, and prisons become a preferred means to ensure that people get help.

In one instance (Case 32), a prison sentence is justified to ensure that the defendant continues to be in opioid agonist treatment. In another case (Case 29), the prosecutor asks for a prison sentence in order to avoid the risk of “relapse” into drug use. The criminal legal system becomes a direct threat to health and a barrier to accessing care, although it still seeks to justify itself under these terms.

Instead of investing in systems of care and support that are tailored to the needs of every person, the state threatens people with punishment unless they undergo a predetermined treatment, normally requiring total abstinence.²⁶

Escaping the prohibitionist logic

Whilst the global War on Drugs continues to target communities along racial and economic lines, alternatives to its prohibitionist and punitive logics are gaining traction worldwide.

Harm reduction describes a set of policies and practices that aim to minimize the negative health, social and legal impacts of drug use and of drug policies themselves.²⁷ Harm reduction has often been identified with services that do not require a person to abstain from drug use, such as safer injecting or inhaling kits, opioid agonist treatment, drug checking, or drug consumption rooms. However, it should be seen as a holistic approach that looks at people beyond their drug use, and seeks to address structural factors such as isolation, homelessness, or poverty.

Harm reduction is now recognized by UN human rights experts as a central element of the right to health of people who use drugs,²⁸ and it is endorsed–on paper, if not in practice–by drug strategy documents in over 110 countries.²⁹ The activist group My Brain My Choice identifies a number of unmet harm reduction needs in Germany including broader, community-centered access to open-ended support that does not require abstinence, including in prisons and for migrants; support for peer work; clean drug use supply dispensing; access to naloxone and much more.³⁰

Whilst support for harm reduction continues to grow, 39 countries have now also adopted some form of decriminalization of drug use and possession for personal use, for at least some drugs. But many such models make wide use of administrative sanctions and mandatory treatment, and continue to criminalize possession and use in public spaces. In almost all cases, like with Germany’s CanG, the supply of drugs remains a serious criminal offense.

That said, in recent years we have seen the emergence of efforts to legally regulate drugs like cannabis through a racial justice prism, particularly in certain US states. This includes decriminalizing possession and use of cannabis in public spaces, expunging prior cannabis convictions, establishing a fair and equitable legal industry, and creating targeted investment programs that benefit communities affected by the War on Drugs.³¹

Some results are remarkable. As of 2025, it is estimated that over 2 million cannabis criminal records have been sealed or expunged across the United States.³² In New York, cannabis possession arrests dropped from over 43,000 in 2012 to less than 1,000 in 2023.³³ The remaining arrests continue to impact Black and Brown people disproportionately, a clear indication of the racist structure of the criminal legal system, and of the need to define the scope of decriminalization as wide as possible. But nevertheless, these developments point to the possibility of using drug policy as an engine of social welfare, rather than harm.

We thank Adrià Cots Fernández for valuable contributions to this finding.