A number of countries have decriminalised the possession and use of cannabis without creating the ‘drugs-free-for-all’ predicted by prohibitionists.
Various countries around the world have experimented with liberal reforms away from full criminal prohibition towards less severe penalties for personal use. The principle of ‘less severe penalties’ is based on changing either the quality (e.g. whether criminal or non-criminal) or the quantity (e.g. amount of fine) of the penalties imposed. In many instances, however, traditional forms of punishment have been replaced by other behavioural requirements of the user, for example, diversion to either education or treatment.
Whilst reforms have taken place there has been no explicit legalisation of production or distribution of cannabis, as this would directly violate certain elements of the UN Drug Conventions. The Conventions do not clearly allow the decriminalisation of use and possession of substances that appear within the Conventions themselves; and they do not allow the establishment of a regulatory regime for the production and sale of these substances in a domestic market. Therefore the Uruguay proposal for a legalised, regulated market for cannabis – and the recent votes by the citizens of the states of Colorado and Washington in the United States to establish a similarly regulated and taxed market for cannabis – are world firsts, and if successfully established would be a direct challenge to the UN Conventions.
While a number of countries have implemented reform measures targeting cannabis use control, few have addressed the issue of supply, often for political reasons (Uruguay’s original ballot draft being a notable exception). The use of cannabis requires that the product is obtained either by one’s own cultivation, by trade or by purchase. In traditional criminal control systems, and many reform systems, these activities are subject to heavy penalties and hence potentially expose the cannabis user to these consequences for supply activities, while the penalties for consumption are reduced.
The link between use and supply thus remains a major policy challenge.
There is a vast amount of confusion regarding the terms ‘decriminalisation’, ‘depenalisation’, ‘legalisation’ and ‘regulation’.
Legalisation: A relaxation of the law that removes an act from all penalties (i.e. it is no longer illegal); no countries in the world have legalised cannabis, although the recent votes in the state ballots of Washington and Colorado (see USA) and the Uruguayan proposals for a legalised and regulated market for cannabis – if carried through – would allow legalisation, in that cannabis would be taxed and regulated like alcohol and cigarettes.
Decriminalisation: A relaxation of the law that removes an act from criminal penalties (i.e. prison sentences etc), but leaves other penalties in place (eg. fines) to dissuade people from the act; Portugal is currently the only country in the world to decriminalise all drugs, but many countries have some form of decriminalisation in place (see New Approaches)
Depenalisation: A relaxation of the law that retains the act as a criminal offence, but applies reduced penalties (e.g. cautions rather than criminal prosecution).
Prohibition: A strengthening of the law that means an illegal act will be met with full criminal punishment.
Options for Reform:
A previous Beckley Foundation commissioned Report, Cannabis Policy: Moving beyond Stalemate, has shown that there are five main regime reform categories:
i) Full prohibition (i.e. no reform);
ii) Prohibition with cautioning or diversion (‘depenalisation’);
iii) Prohibition with civil penalties (‘decriminalisation’);
iv) Partial prohibition, including:
a) ‘De facto’ legalisation (i.e. possession remains technically illegal by law, but members of law enforcement/the judiciary may decide whether or not to enforce the law on a case by case basis);
b) ‘De jure’ legalisation (i.e.the non-punishment of cannabis use is written into national law or cannabis possession is removed from the law governing illegal drug use – e.g. medicinal marijuana);
What happens after reform?
Many lessons can be learned from countries that have experimented with liberal reforms to drug control.
Countries such as Brazil and France that have moved towards depenalisation have removed the burden on the criminal justice systems for ‘minor’ possession offences. This has enabled more resources to be devoted to targeting suppliers and dealers. Decriminalisation maintains the current illegal status of cannabis, but substitutes the criminal consequences of minor drug offences towards non-criminal punishments.
Countries such as the Netherlands that have implemented partial-prohibition, in which cannabis use and possession is no longer illegal have found that they are better able to separate drug markets, preventing cannabis users from coming in to contact with ‘harder’ drugs.
Spain’s experiment with ‘De jure’ legalisation has led to the development of small cooperatives that produce and supply enough cannabis to meet user’s personal needs; this approach has been shown to have several benefits in terms of removing revenue from black markets, creating jobs and tax revenue.
Most importantly, analysis carried out on the effects of reform in these countries shows that there is little change in use of cannabis.
Overall, it seems that legislation surrounding cannabis has little effect on the numbers of people who will use it, and only has an effect on the harms that they will face.
It is clear that there are many alternatives available to governments seeking alternatives to the current prohibitionist approaches to drug policy that have been tried, tested and found to work better than the current system in many countries around the world.