Regulating Cannabis: Options for Control in the 21st Century

Given the importance which is assigned to setting clear goals for any major social policy, it is surprising how infrequently discussion of drug policy is preceded by a precise specification of what the policy is intended to achieve. Too often, goals are either global (e.g. to reduce drug use) or unattainable (e.g. to eliminate drug use), and as such they allow for many interpretations. Similarly, goals are often stated in such a way that they could be achieved through a number of quite contradictory strategies and at vastly differing costs.

Accordingly, it is useful to be as explicit as possible about what are the objectives of cannabis policy. In this context, it is important to address the issue of drug policy, as well as drug legislation. The link between policy, legislation and implementation is important and must be factored into these considerations. The development of policy and legislation relating to cannabis can usefully take into account the following issues:

1. Arguments that apply to the most appropriate control regime for one drug need not and often do not - apply to others.
2. Drug policy should be crafted to take account of the different patterns and types of harms caused by specific drugs.
3. The details of control regimes are crucial determinants of their outcomes. Such details should not be left undefined.
4. Any analysis of control regimes should attempt to estimate their effects on both consumption levels and patterns of use.
5. Control regimes should not be considered in isolation from the problems of implementation and enforcement.
6. Arguments about the consequences of drug use should be separated from arguments about morals.
7. Options should be evaluated on the basis of evidence relating to the extent and nature of the harms they seek to reduce and be commensurate with the observed levels of harm.
8. Any policy should recognize the changing nature of drug problems and be able to change with it. Additionally, all policies should be reviewed periodically to ensure that they are still relevant to current circumstances.
9. Policy should be made in the light of the costs of controls, as well as the benefits.
10. The goals of drug policy should be realistic.
11. Discussion of policy options should include a specification of which harms they are intended to reduce.
12. Discussion of cannabis policy (and drug policy generally) should recognize the existence of multiple and sometimes contradictory goals.
13. Policies to discourage cannabis use should be shown to be effective or be changed.
14. The harms caused by the control regimes themselves should not outweigh the harms prevented by them.

The application of these principles in a given situation should lead to the development of explicit policy goals relating to cannabis. It is likely that priorities will need to be assigned between the available goals, as they are frequently inconsistent. Nevertheless, the explicit specification of the goals which policy and legislation are intended to achieve is essential if they are to be properly articulated and evaluated.

A range of options for cannabis regulation exist

The cannabis policy debate too often turns into a stand-off between the legalizers and the prohibitionists; people adopt positions at the extremes and fail to communicate. A tool for dealing with this, in the policy development context, is to make explicit the wide range and variety of policy options that exist for cannabis regulation. One can look back to the 1972 Canadian Le Dain enquiry, the 1978 South Australian Sackville enquiry and the 1994 Australian National Task Force on Cannabis enquiry to see lists such as the following:

• Total prohibition with more-or-less full enforcement of the criminal law relating to cannabis
• Legislative prohibition with an administrative decision that it is inexpedient (not in the public interest) to prosecute all or certain cannabis offences
• Legislative prohibition with an administrative decision to caution certain categories of offenders, and/or to divert them into treatment programs, rather than to subject them to criminal prosecution
• Prohibition with sanctions other than criminal convictions and imprisonment, e.g. 'on the-spot' financial penalties
• Partial prohibition, i.e. maintaining criminal sanctions for some cannabis-related behaviour (e.g. trafficking) while removing other behaviours (e.g. possession of small quantities) from the purview of the law
• Regulation, i.e. having government agencies, or agencies licensed by government, responsible for controlling the production, distribution and sale of the drug under a regime similar to current alcohol, tobacco and firearms controls
• Free availability, i.e. no controls, no offences.

A policy of non-enforcement of the criminal law: The Netherlands and Australia

Considerable international interest has been shown in the Dutch approach of differentiating drugs according to their potential for harm and applying a formal policy that it is inexpedient to use criminal justice system resources for the detection and prosecution of certain minor cannabis offences. This option was canvassed in Australia three or four years ago. The conclusion then, based on the views of senior legal advisors to Australian Governments, was that such an approach is not viable in Australia; it is inconsistent with the nation's legal culture. We must give the police a single, simple message, the argument ran. Awful complications would arise if we took the approach of having criminal law in the books but an administrative instruction to police not to enforce the law.

Since then, however, things have changed. With the agreement of State Governments, a number of Australia's State Police Services have introduced policies of nonprosecution, linked to various types of diversionary schemes. Details will be provided at the Symposium. This reminds us that legal systems can be flexible; policies, the law and its enforcement are not infrequently inconsistent.

A worrying conflict exists between the stated policies on policing cannabis in many societies (going after the high level growers and traffickers rather than users and low level user/dealers), on the one hand, and emerging patterns of policing, especially C zero tolerance' policing, on the other. At the heart of 'zero tolerance' policing is the removal of police officers' discretion as to how to proceed when they become aware of an offence. Nations or localities can easily find themselves in a position where high-level policy is to leave the minor cannabis offences alone, coupled with local police decision making to apply 'zero tolerance' tactics which target minor offences (including cannabis use and possession) and public disorder.

The stated goals of 'zero tolerance' policing are generally to reduce crime, public disorder and fear of crime. When minor offences and public disorder are key targets of policing, massive scope exists for abuses of human rights and for undoing much of the good work that has been done in developing patterns of community policing which are linked to community strengthening.

Both the UNDCP/INCB and the Government of the USA have explicit policies that other nations should apply their (prohibitionist) approaches to drugs in society. The provisions of the international treaties recognising that legislation and its enforcement may reflect the cultures of individual nations is generally ignored. In this context, it is worrying that many nations have incorporated the Conventions into domestic law without critical examination of (1) the implications of doing so and (2) the potential usefulness, for individual nations, of the provisions which apparently permit deviation from total prohibition where this reflects local cultures.

In the Asia/Pacific region (and presumably elsewhere) officers of the US DEA make regular visits and speak with their counterparts and opinion leaders in the nations. In some of the Pacific Island nations, for example, I have been advised that DEA officers have told indigenous senior police officers and policy makers that their nations are obliged, being signatories to the Conventions, to criminalise cannabis possession and use, and even to introduce mandatory imprisonment for such offences.(2) These nations frequently do not have the resources to develop home-grown drugs legislation, and frequently use legislative packages provided the 'off-the-shelf by these international drug warriers. Such packages do not embrace harm minimisation but, indeed, frequently work in the opposite direction.

The tying of national drug policies to international trade and development assistance funding is one of the most problematic features of the international drugs policy scene.

Notes:

1. Adapted from D. McDonald et al., Legislative Options for Cannabis in Australia, National Drug Strategy Monograph No. 26, AGPS, Canberra, 1994. It draws upon M. Kleiman & A. Saiger, 'Taxes, regulations and prohibitions: Reformulating the legalization debate', in Drug Policy in the Americas, ed. P. Smith, Westview Press, Boulder, 1992. (Back)
2. Mandatory imprisonment for the use of cannabis or the possession even of small quantities is found in legislation in some nations of the Asia/Pacific region. It is a source of corruption of the criminal justice system and has devastating consequences in the prison systems where HIV/AlDS is endemic. (Back)