FOR THE USER
The effects of punishment on the cannabis user who gets caught - the offender - were examined in personal, social, and economic terms. Costs incurred up to the time of court appearance and sentence were distinguished, whenever possible, from those which emerged in the subsequent year. Benefits pertaining to the user in the form of specific deterrent effects were also considered in both the initial contact with the sample of 95 offenders and the follow-up with 85 of them. Throughout the analysis, costs and benefits have been defined in the criminal justice context as the negative and positive effects associated with criminalization. That is, what are the harmful consequences attached to the acquisition of an official "criminal" status and what are the beneficial results in terms of dissuasion from the prohibited activity?
Briefly, the personal consequences of thinking of oneself as a criminal, after being labeled as such, were acknowledged by 6% of the sample immediately after court. Then, most offenders rejected this label for themselves, and viewed a majority of significant others, especially peers, as sharing this non-criminal perception of them. A year later, 20% of the sample considered themselves criminal, and the shift in self-identification was associated with further law-breaking activities of a criminal nature during the interim and with parental sharing of this definition. While the first official labeling of a cannabis offender rarely resulted in a criminal sense of identity, additional charges and convictions appeared to have a cumulative impact. The somewhat increased criminality of the respondents by the time of follow-up was indicated by the types of offenses committed and the more severe dispositions awarded. But this was not related to the nature of the sentence received for the earlier cannabis possession offense. The official intervention at that time may have contributed to the acquisition of attitudes conducive to other, more serious, violations of the law by some subjects, and thus may have contributed to the increased criminal involvement but, lacking a comparison group of similar but unlabeled cannabis users, the possibility that such activity would have occurred anyway cannot be discounted.
Since most of the sample members were young (average age21) and still in contact with their parents, negative effects on social relationships were most likely to emerge with reference to their families. A fairly tolerant, if not approving, attitude to marijuana use was said by a majority of respondents to be held by their parents, though a minority reported strong disapproval. The wish to keep the charge a secret or at least to choose the circumstances of the revelation, however, was shared by a large number of the offenders. They seemed to have had some degree of success in controlling the disclosure of the information about their court case. This was indicated at the one year follow-up when nearly 60% of parents knew about the charge, and most had been told by the subjects themselves. The greatest disruption in social relationships occurred when the revelation was unplanned and unexpected. While this occurred relatively infrequently, such adverse reactions were described as upsetting for all parties involved. For the minority of sample members who were older and in their own residences, the objects of concern in concealing their charge were more likely to be social or work associates, and again they seemed quite successful in doing so.
The economic consequences were documented as those relating to employment situations or prospects. Direct financial losses at the time of sentence affected three-quarters of the subjects and averaged about $70. More job casualties were associated with the pretrial period, when five subjects lost jobs for a reason related to the charge. At the time of follow-up no further losses were directly traceable to the existence of a criminal record. A few subjects thought it might have negatively affected their applications for new positions, but this could not be verified. However, in objective terms the sample's economic position as a group had declined in the post-trial year, with nearly twice the proportion neither working nor in school (21% compared to 11% at the time of sentence). Change in position, number of jobs held, and length of unemployment in the one-year interval were not related to the nature of the sentence awarded for the cannabis offense, so that those who received absolute discharges were no better (or worse) off economically than those fined or placed on probation. Those who did not receive an absolute discharge did perceive more severe sentences as a greater handicap. This was evidenced by their stronger preference that employers not learn of their legal history. Some support for this subjective evaluation was provided by a field experiment which showed that favorable responses from potential employers were less likely for someone convicted than someone discharged (Erickson and Goodstadt, 1979). Although a one year follow-up can reflect only the initial economic consequences of a criminal record, anxiety over its effects appeared to outstrip the demonstrable deprivations over this period. Leon has observed:
One of the most powerful consequences of a conviction or a discharge may be grounded in a fear ofthe unknown. 'That is, the individual is placed in a vulnerable position, possibly not knowing whether, or when, additional sanctions will be applied. (1979:345)
The subjects' reactions were consistent with this view.
It was suggested earlier (Chapter 3) that, whatever the valuation placed on these costs of criminalization, they reflected a minimal set of consequences, due in part to the relatively lenient sentencing practices of Toronto judges. This argument will be further developed with reference to the court setting, the characteristics of offenders, and the changing social definition of the crime.
First, disclosure is a requisite for many of the personal, social, and economic consequences. The Toronto setting provided an anonymous courtroom in a central, large courthouse where the only spectators were likely to be fellow cannabis offenders. The daily papers seldom reported simple possession charges. Thus it was possible, to an extent unlikely in a smaller centre, for offenders to protect the secrecy of the event if they so wished, or to divulge it in a manner of their own choosing. The interview data clearly show that to many of the respondents, the confidentiality of the court appearance was very important. Successful secrecy appeared to be one factor in minimizing the consequences which they experienced.
Secondly, many of the offenders were economically disadvantaged to start with, by virtue of their youth, incomplete schooling, and lack of skills. Very few occupied professional careers or were en route to university. Their jobs tended to be those with a high turnover and required fewer skills. The possible existence of a criminal record was not routinely raised by their employers. That is not to say such respondents were not concerned about the effects of their records on employment opportunities - many expressed such anxiety - but rather that their criminal records were just one more handicap among several in a time of rising unemployment among young people. To have isolated it as the only liability was just not realistic for many of the subjects.
Thirdly, in the past decade moderate cannabis use has moved from highly deviant to merely "disreputable" behavior (Hagan, 1977:66), and for many youthful persons, cannabis use is acceptable and "normal" (Johnston, 1980; Smart et al., 1979). The majority of the respondents in this study were long-term, experienced users. They stated that they did not consider their cannabis use or themselves to be criminal and they perceived peer support for this view. They seemed to be attempting, often successfully, to replace the label "criminal" with the less pejorative term "cannabis user." To a lesser extent, they were also able to draw on examples of parental and employer acceptance of, or even participation in, this drug use activity in support of their redefinition of the court experience. Thus, it seems reasonable to suggest that cannabis offenders have become, on the whole, better able to cope with the possible adverse effects of criminalization than were their counterparts a few years earlier when the Canadian and American national commissions on drug use were preparing their reports.
The assessment of "high" and "low" costs is a matter of value judgment, and ultimately one for policy decision-makers to resolve. Costs must also be balanced against the weight of benefits. A review of recent literature showed very little evidence in support of the general deterrence of cannabis use by the policy of prohibition. In this study, specific deterrent effects, those displayed by criminally sanctioned users, were found to be minimal. After one year, 8% of the respondents reported no use of cannabis: almost all of them were the least frequent users of cannabis before their court appearance. While heavy consumption had declined somewhat among users, the reasons given related more to lifestyle changes rather than to the legal threat. Neither actual nor perceived severity of penalty was shown to be related to continuation or intensity of cannabis use. Although most users reported a number of precautions taken in an effort to avoid detection by the police, in the one-year interval 9% had been charged again with cannabis possession.
The adverse individual consequences of the application of criminal sanctions to cannabis users have been, at times, imprecisely stated and variously evaluated. This study has demonstrated that they do occur, and with a broad range of impact. Popular notions have not been sustained that those who escape incarceration, or even conviction, escape punishment. When compared to the negligible specific deterrent effects on these offenders, and the interests of general deterrence that such punishment is intended to serve, the balance of the equation may indeed be close to the "benefit-less costs" suggested at the Senate hearings of Bill S-19 by the Chairman of the Law Reform Commission of Canada.
FOR THE LAW
Proponents of the "overcriminalization" perspective have persuasively argued that the extension of the criminal sanction to activities which do no harm to the person or property of others, and which lack societal consensus on their wrongness, impose a burden on the overall role and tradition of the law (Law Reform Commission, 1976; Packer, 1968). Negative repercussions which may result include the overloading of the courts with concomitant pressure for legal shortcuts and disrespect for the law and legal institutions. The cannabis prohibition, which is widely broken and unevenly enforced,was the basis for one in every eight federal criminal charges laid in Canada in 1976. It provides a paradigm for illustration of the possible effects of this overburdening of the law.
The volume of cannabis possession cases (about 5,000 in Toronto in 1974) adds considerably to the court's load. The docket of one courtroom each day was devoted almost entirely to these cases. Features observed which expedited proceedings included a rapid turnover of cases, the routine waiving of the certificate of analysis (proof that the substance was cannabis), the predominance of guilty pleas, and usually the lack of legal representation. These common practices are out of keeping with the ideals of the administration of justice.
The development of disrespect was assessed by three possible manifestations: first, for the law in general; secondly, for the specific offense related to cannabis use; thirdly, for the operation of the criminal justice system. At both interviews, the subjects expressed conventional sentiments accepting the need for the law generally, and also exhibited quite conforming views about the relative seriousness of various crimes and appropriate penalties for their perpetrators. But nearly all the respondents disputed the legitimacy of the cannabis prohibition, both at the time of sentence and follow-up. The enforcement of the law produced negative attitudes towards the police in some of the subjects, particularly in response to aggressive or violent police practices during the arrest incident. Disrespect for the courts was displayed, which was based on perceived inconsistency and unfairness of sentencing. This was especially so in relation to the discrepancies between the awarding of absolute discharges and the other options. This perception was not at odds with the reality of sentencing in that penalties did not bear a consistent relationship to either the details of the offense or the character of the accused, but sentence was affected by the presiding judge and by whether a lawyer spoke on behalf of the accused.
The discharge provision was originally introduced, in 1972, with the formal legislative objective of reducing the individual costs of conviction while retaining criminal penalties. In this study, personal, social, and economic consequences did not differ according to whether absolute discharge, conditional discharge, or a fine was imposed on offenders. Nor were specific deterrent effects related to the type of sentence received. However, this additional and unevenly exercised sentencing alternative of absolute discharge may have contributed to an even greater sense of injustice and disrespect for the courts among offenders, particularly among those who received more severe sentences. Thus, the guidance that might be offered from these results for the ongoing debate on penalty changes is that all cannabis possession offenders should receive the least costly absolute discharge option. There are no appreciable gains in deterrent effectiveness fromapplying the sanctions of fine or probation. As well, conditional discharge involves additional public expenditure for probation services. And some loss of respect for the law in relation to court practices of inconsistent sentencing does occur.
While the federal government may have given tacit support to a more lenient sentencing policy of discharges for possession (by introducing the discharge provision in conjunction with guidelines to federal drug prosecutors not to oppose discharge), judges nationally still award it in a minority of cases. Judges have voiced opposition to limitation of their discretion by mandatory sentences and, indeed, to expand sentencing options and then restrict judges' freedom to exercise them does seem contradictory. The ramifications of an obligatory discharge for possession offenders extend beyond the cannabis issue to the realm of sentencing philosophy and law reform generally.
Similar reservations can be expressed about the proposal that pardons be automatically given to cannabis possession offenders (such as in revised Bill S-19) in order to soften the harmful effects of a criminal record. The Chairman of the federal Law Reform Commission offered this comment at the Senate hearings on cannabis:
Parliament can do that of course, but ... why did the machinery bring the person through the whole criminal justice system into a position where he was convicted, in the first place, when there are many other methods of coping with and dealing with the situation?(Senate, 1975)
Further, such a policy seems to contradict the fundamental meaning of a pardon, that of clemency, and may devalue its worth for the truly rehabilitated criminal who seeks to regain his or her legitimate status in the society. As this study has shown, most cannabis offenders are unlikely to be repentant about their drug use. To award pardons automatically to all such offenders would seem to be more in the form of amnesty rather than a unique expression of mercy to the individual wrongdoer.
Attempts to reduce the consequences of a criminal record and achieve fairness in sentencing, through modification of existing laws, are subject to various limitations and contradictions. The overcriminalization perspective directs attention to a reconsideration of the proper scope of the criminal law, suggests that the criminal sanction should be applied less rather than more, and proposes that alternative means of dealing with problems be developed. The legal costs shown in this study indicate that cannabis control might benefit from such a reevaluation. Hagan summarizes this point of view:
This does not mean that we condone marijuana... abuse, it simply means that the criminal justice system is not the place to demonstrate our sentiments of condemnation. (1977:198)
Widespread use of cannabis in the face of criminal prohibition has posed complex problems for western countries, Canada among them. Society has yet to strike a balance between the adverse consequences of the use itself and the costs resulting from the control policy. While this study has focused on one aspect of costs - the effects of criminal sanction on users - policymakers must consider other costs of prohibition as well. Some of these, elaborated on elsewhere, include the creation of an illicit market with large profits for organized crime (Le Dain, 1972; Glaser, 1978), the abrogation of civil liberties through special police powers and aggressive enforcement tactics (Solomon, 1980; Manning and Redlinger, 1978), and the economic costs of the resources required to process thousands of offenders through the criminal justice system (Bryan, 1979; Single, 1980).
This study has provided hitherto unavailable evidence on the costs; and benefits related to punishing individual users. The overall amount of criminalization for cannabis use in Canada was assessed in both the official sense of the numbers acquiring records as well as variation in the social aftermath. Meagre support was demonstrated for assigning distinct gradations in social effects to the alternative sanctions of absolute discharge, conditional discharge, and fine. Most adverse consequences were associated primarily with the fact of criminalization - from arrest through to court appearance and imposition of a criminal label. Although no subjects were imprisoned, it seems likely that the distinction between custodial and non-custodial outcomes is more decisive in any immediate or short term impact on offenders' lives than variation in non-custodial alternatives.
Reducing sentencing severity in law by replacing conviction with discharge seemed to have little demonstrable effect in the one year follow-up period. Since the number of persons subjected to official intervention for cannabis possession has continued to grow, the overall amount of criminalization has been increasing without effective mitigation by more lenient sentencing. In terms of the model of criminalization presented in Chapter 2, the impact of official criminalization appears more significant than the social criminalization related to sentence in determining the consequences of criminal labeling. It would follow that a much greater impact on totalcriminalization would be achieved through a reduction in the numbers being arrested for this crime.
A major concern is that adverse health effects of cannabis use would be significantly, though indirectly, magnified by the reduction or removal of criminal penalties. This result would be demonstrated only if use levels were substantially altered upwards by law reform. Certainly evidence has been mounting that the use of marijuana and hashish, particularly since it has become available in more potent forms, poses hazards to health (NIDA, 1980). While those potentially at risk because of heavy, chronic use or membership in a vulnerable group, represent a minority of all users (e.g. approximately 10% of those aged 18-29 report use of cannabis more than once a week; Rootman, 1979), the widespread nature of use makes it probable that long-term, large-scale studies on humans eventually will show, with greater specificity, the extent of likely health problems in the population of users (Fehr et aL, 1980).
Continued reliance on the criminal law as a public health measure has not stopped the dimensions of the potential problem from expanding. It is important to recall that the present criminal prohibitionist policy was not designed to protect the health of Canadians from the demonstrated harm of marijuana use, but was rather inherited as an historical accident that linked cannabis with the opiates during the 1920s. But perhaps even more now than when the Le Dain Commission made the comment (1972:291), decision makers cannot startde novo to design the best cannabis policy, but must deal with the current situation at the start of the 1980s.
A realistic approach might be to accept that some health costs of excessive or inappropriate use are inevitable (unless the trend of the last decade is dramatically reversed) and to question whether these should be compounded by the continued costs of criminalization. Prohibition has been a high cost, low benefit policy for controlling the demand for cannabis. A related issue is the degree of tolerance of diversity in lifestyles and recreational pursuits that a society should embody in its criminal law, Cannabis use in Canada, as in the United States, has been occurring on a scale that implies an ever-increasing level of social acceptance, especially among the young. The assertion that criminal prohibition can be justified because it discourages a sufficiently high amount of use in the population at large has been called into question by steady growth in use and by recent studies of general deterrence. The failure of cannabis prohibition has been attributed to a combination of the low actual risk of detection, the perception that certainty of punishment is remote, and the low or absent social condemnation of the behavior (Erickson et al., 1977; Meier and Johnson, 1977; Silberman, 1976). Concern about harmful health effects, peer disapproval, and judgments about the "wrongness" of the activity have been shown to far outweigh legal threats inpreventing use. Users are not oblivious to the physical and mental hazards of various forms of drug-taking. However, they assess the health risks of cannabis as relatively low (Johnston, 1980; Erickson, 1981). Thus, it is suggested, a concern with adverse health effects does not provide a justification for retention of the status quo, but instead requires a consideration of alternate measures that recognize the public health implications of widespread cannabis use. Such a redefinition would open the door for the development of various strategies to minimize harmful use in place of the moral condemnation and legal stigma inherent in the criminal process.
For the users, then, the implications of the cannabis prohibition are that they are in a situation of double jeopardy: they are at risk both from the possible adverse physical effects of drug-taking and from the harmful individual consequences of criminalization. For the more than 200,000 Canadians so far who have received criminal records of discharge or conviction for cannabis possession, the label is a reality to be coped with. For the as yet undetected users, criminalization presents a potential hazard.
For the law, in the context of the ongoing debate over reducing penalties for simple possession, the absolute discharge is preferable-to the fine or probation alternatives - it does not substantially reduce costs to the individual but neither does it increase the likelihood of continued offending. If a minimal benefit is being attained through the sanction, it is more rational to apply the least costly form of it. Society has yet to come to terms with the increasing and widespread use of a criminally prohibited drug.
Far-reaching debates will no doubt continue in the public and legislative forums until, and even after, a new cannabis policy has been implemented. In Canada, the point at which the present law is considered adequate has been passed. Policyrnakers are now deliberating the next step to take. The purpose of this study was to provide systematically derived data on the adverse individual costs and specific deterrent benefits associated with criminalization. The offenders' perceptions of their experiences of becoming "cannabis criminals" have been presented to add substance to the statistical information. It is hoped that the effects of punishment on the aggregate of criminalized users will be one of the crucial components considered in shaping future policy in this area.