The Global Initiative For Drug Policy Reform

Partial Prohibition

De Facto or De Jure ‘Legalisation’ of Cannabis Use

Under Partial Prohibition reforms, personal cannabis use and possession are no longer illegal, but commercial activities such as large-scale production, supply and possession of large amounts are prohibited. Within this system, the legality of personal use amounts is usually limited to adults, and often excludes the so-called ‘aggravating circumstances’ which are specifically defined (e.g. use near a school or involving minors, etc.)[1].

Partial prohibition regimes of cannabis possession control are brought about by two fundamentally distinct approaches, namely either ‘de facto’ (1) legalisation of cannabis use or ‘de jure’ (2) legalisation of cannabis use.

  1. Within the model of ‘de facto’ legalisation, cannabis use is formally prohibited by criminal law, yet applicable laws are not enforced or suspended in practice and thus not sanctioned by any punitive interventions. Examples of countries that have implemented this reform include the Netherlands and Germany.

  2.  Within the model of ‘de jure’ legalisation, the non-punishment of cannabis use is either explicitly written into the relevant drug control statute or the scope of the law governing illegal drug use does not extend to cannabis possession. These reforms have so far predominantly been aimed at selected places (e.g. the home) or at specific populations (e.g. medical marijuana users). However, such provisions are most likely to be in violation of the international control treaties. Examples of this legislative reform have taken place in Alaska, Spain and the Medical Marijuana provisions in parts of the US and Canada.

 These two reforms have taken place mainly in jurisdictions where: law and policy makers were confronted with the persistent reality of cannabis being a popular and prevalent drug across the population, the risks or harms of cannabis use were not seen as being disproportionately greater than those of alcohol or tobacco, and the approach of partial prohibition was seen as a possible way to separate cannabis use from other (more dangerous) illicit drug cultures and/or markets as well as to save criminal justice resources related to the criminal control of the drug [2].

 Example Case Study 6: ‘De Facto Legalisation’ in The Netherlands

In Holland, Cannabis possession is technically illegal and prohibited under the Dutch drug control law. However, the prosecution may decide whether or not to enforce the law against certain offences on the basis of whether this action would be ‘in the public interest’ [3]. This approach has resulted in a system of de facto legalisation of cannabis use in the Netherlands, where personal cannabis use is actively tolerated within specific parameters (i.e. not followed by sanctions or interventions). These include the home, and also the unique institution of officially sanctioned and regulated so-called coffee shops existing in numerous Dutch municipalities, where cannabis can openly be consumed and small amounts of cannabis for personal use can be purchased (e.g. up to 5 g per day) [4]. Cannabis use or sale outside of the regulated spaces of coffee shops is followed by police warnings or fines. In other words, personal cannabis use and supply to the end consumer in the Netherlands is regulated similarly to alcohol or tobacco use in many jurisdictions.


One of the major benefits cited for the legally tolerated provision of cannabis through the coffee shop system is that it is effecting a ‘separation of drug markets’, that is, that cannabis is largely traded in an environment not featuring the availability of so-called ‘harder drugs’, hence reducing cannabis users’ possible exposure to them [5]. There are national guidelines about the running of the cannabis coffee shops, yet decisions about how they are implemented are made at the local level by a local board usually involving the mayor, the chief prosecutor, and the head of police. This ‘three pillars’ system means that the details of local cannabis use control policy differ from area to area, and, at least in theory, are responsive to local community concerns and interests.

Yet, the Netherlands has been subjected to pressure from some of its European neighbours, the European Union, the United Nations Drug Control Program, the United States, and other countries which adopt a more prohibitionist approach to cannabis, to change its drug policy[6]. The pressure has been justified on the grounds that the Netherlands policy ‘undermines domestic drug policy’ (e.g. in the United States), stimulates cross-border drug tourism, and undermines international collaborative efforts to reduce illicit drug use, production, and trafficking. However, in order to reduce such issues as drug tourism, recent legislative reforms mean that Holland will introduce a ‘weed card’ for cannabis users that will make it illegal for coffee shops to sell marijuana to anyone without the card [7].

 

Example Case Study 7: ‘De Jure Legalisation’ in Spain

In Spain, possession or use of psychoactive drugs, including cannabis, is technically prohibited by law, yet does not result in enforcement or punishment, especially when involving small amounts and/or use in private places.[8] Rulings by the Spanish Supreme Court in 2001 and 2003 established that cannabis possession, even of large quantities did not constitute a crime if there is no clear intentino of trafficking.

Since 2002 Cannabis Social Clubs (CSCs) have appeared in the country. These are “non-commercial organisations of users who get together to cultivate and distribute enough cannabis to meet their personal needs without having to turn to the black market”[9].

In Catalonia and the Basque country, they have achieved legal recognition and legitimacy. Club members rent a greenhouse where the cannabis is cultivated and harvested. Every member has a right to receive a fixed amount for personal consumption, at a price set lower for medicinal than for other users; members agree not to pass on cannabis to third persons.

According to one report, CSCs have “…enabled several thousand people to stop financing the black market and to know the quality and origin of what they are consuming, whilst creating jobs and tax revenue” [9]. Estimates, based on a roll out of CSCs across Europe, indicate that 7,500 direct jobs and around 30,000 indirect jobs could be created in Spain alone. At a European level, it could create 8.4 billion euros of revenue for member governments. [10]

Since, 2002 it is estimated that Cannabis Social Clubs have enabled several thousand people to stop financing the black market and to know the quality and orgin of what they are consuming, whilst creating jobs and tax revenue.

 

References:

[1] McDonald et al., 1994; Reinarman, C., Cohen, P.D.A. &Kaal, H.L. (2004). The limited relevance of drug policy:Cannabis in Amsterdam and in San Francisco. American Journal of Public Health, 94(5): 836–42.; MacCoun, R. & Reuter, P. (1997). Interpreting Dutch cannabis policy: Reasoning by analogy in the legalisation debate. Science, 278(3): 47–52.

[2] Chatwin, C. (2003). Drug policy developments within the European Union: The destabilizing effects of Dutch and Swedish drug policies. British Journal of Criminology, 43: 567–82; Duncan, D. & Nicholson, T. (1997). Dutch drug policy: A model for America? Journal of Health and Social Policy, 8: 1–15

[3] Chatwin, C. (2003). Drug policy developments within the European Union: The destabilizing effects of Dutch and Swedish drug policies. British Journal of Criminology, 43: 567–82; Duncan, D. & Nicholson, T. (1997). Dutch drug policy: A model for America? Journal of Health and Social Policy, 8: 1–15.

[4] Chatwin, 2003; MacCoun& Reuter, 1997; Van Dijk, J. (1998). The narrow margins of the Dutch drug policy: A cost-benefit analysis. European Journal on Criminal Policy and Research, 6: 369–94.

[5] MacCoun& Reuter, 1997 Pakes, F. (2004). The politics of discontent: The emergence of a new criminal justice discourse in the Netherlands. The Howard Journal, 43: 284–98.; Reinarman& Cohen, 2004; Van Vliet, H.J. (1990). Separation of drug markets and the normalization of drug problems in the Netherlands: An example for other nations? Journal of Drug Issues, 20: 463–71.

[6] Boekhout Van Solinge, T. (1999). Dutch drug policy in a European context. Journal of Drug Issues, 29: 511–28.; Chatwin, 2003 Chatwin, C. (2007). Multi-level governance: The way forward for European illicit drug policy? International Journal of Drug Policy, 18: 494–502.; Lemmens, P. &Garretsen, H. (1998). Unstable pragmatism: Dutch drug policy under national and international pressure. Addiction, 93: 157–62.

[7] Strauss, J., ‘ Fear and Loathing Surrounds Decriminalisation’, Al Jazeera, 18 June 2011.

 [8] Van het Loo, M., Hoorens, S., van’t Hof, C. & Kahan, J. (2003). Cannabis Policy. Santa Monica: RAND Europe.

[9] Barriuso Alonso, M. ‘Cannabis social clubs in Spain: A normalizing alternative under way’, TNI Series on Legislative Reform of Drug Policies, Nr. 9, January 2011.

[10] Alonso MB 2011: Cannabis Social Clubs in Spain: A Normalising Alternative Underway: Transnational Institute and Federation of Cannabis Associations: Series on Legislative Reform of Drug Policies no 9: January 2011 http://www.druglawreform.info/images/stories/documents/dlr9.pdf