6. Evaluation of the options
All the options described in sections 4.2 and 4.3 involve the decriminalization of cannabis consumption and the preparatory and procurement activities associated with personal consumption. The discussion in Chapter 5 of the consequences of the options makes clear that every model involving easier access to cannabis has its attendant uncertainties and risks. The possible adverse consequences are not of a critical nature, however, and can be addressed by a suitable form of regulation. Moreover, the frequently made claim that legalization means easier availability of cannabis is open to question. The point has been made several times in the present report that in the present circumstances cannabis availability poses no difficulty whatsoever for anybody wishing to use the substance. Regardless of whichever option may be chosen, it is the unanimous view of the Commission that the prohibition on consumption and associated procurement activities should be lifted. Before proceeding to a comparative evaluation of the different options in section 6.2 below, it therefore appears appropriate first to list a series of key arguments, primarily of a legal nature, which have persuaded the Commission, albeit conscious of the uncertainties discussed in Chapter 5, to put forward only options which involve the removal of the prohibitions of consumption and of procurement for personal consumption.
6.1 Grounds for removing the prohibitions of consumption and of procurement for personal consumption
There are a host of arguments in favor of substantive decriminalization, of which only the most important are cited below 1 :
* Using the criminal law to prohibit a (possibly) self- endangering form of behavior is repugnant to the fundamental values of a legal system founded on personal liberties and is thus not part of the legitimate function of a criminal justice system supposed to uphold a system of that kind 2 . That applies to the consumption of all drugs but particularly so in the case of cannabis which, while it is not harmless, is nonetheless far less dangerous than the others. Accordingly, German legal commentators have of late increasingly tended toward the view that, because it violates the principle of proportionality, the prohibition of cannabis consumption is unconstitutional 3 .
* The argument based on the general preventive effect of the prohibition of consumption does not stand up – as has been shown in the earlier chapters – although this cannot be proved in the strict sense but only inferred as highly probable. Any such general preventive effect is already contradicted by the fact that the risk of penalty for a first- time user is practically nil, because of the absence of the most basic prerequisite for the detection of crime: reporting by the victim, there being no victim in this case. The proposition that dependent users would be deterred by the threat of sanction for consumption is entirely untenable. All the empirical evidence and statistical data, based on both international and intercantonal comparisons always point to the same conclusion (see also section 5.1.1): that there is no significant correlation between the prevalence of drug consumption and the – sometimes considerable – differences in prosecution and sentencing practices 4 . Particularly noteworthy in this regard is the fact that in the Netherlands, where de facto and in the public perception there has effectively been substantive decriminalization of consumption and procurement activities associated with personal consumption, cannabis consumption has fallen and is significantly lower than in Switzerland and in the USA 5 . The fact that approximately 25 percent of the 15- 30 age group have tried cannabis but only approximately 3 percent have taken opiates also contradicts the argument that prohibition of consumption has a general preventive effect. The law threatens both forms of behavior with (the same) penalty and ought therefore, if the argument were valid, to produce the same effect in each case.
Punishment of drug consumption can only ever affect an insignificantly small fraction of those who violate the prohibition 6 . It is therefore so highly selective that it is doubtful whether the criminal sanction has even a symbolic effect 7 . The opposite appears more likely: that the criminal proceedings (which, in addition, vary greatly from region to region) against those prosecuted are perceived as arbitrary acts of futile coercion, which virtually nobody really takes seriously any more. The consequence of this is that drugs policy as a whole loses credibility – including those aspects which are geared toward prevention by methods more appropriate than the criminal justice system.
It is argued that the prohibition of consumption acts as a sort of warning sign, drawing attention to the dangers of drugs. But prohibition is not necessary for that purpose. The same message can be communicated equally well and in a more appropriate way by means of prevention information and is already widely disseminated by virtue of the constant media coverage.
There is no merit, in the case of cannabis at any rate, in the criticism which is sometimes raised that it would no longer be possible to safeguard the public interest if the prohibition of consumption were lifted. What is at issue here are the 'adverse side effects’ of (public) drug consumption. These can be dealt with under suitable cantonal public order regulations (making use, where necessary, of general police powers) in exactly the same manner as such provisions are used to counteract similar side effects of prostitution (see Article 199 of the Penal Code). The fact that not all of the cantons have public order regulations providing the necessary police powers does not constitute a counterargument. Such powers could be introduced without any great difficulty. Moreover, where open consumption occurs there is usually drug dealing taking place as well, which means police intervention is possible in any case 8 .
Nor is it a convincing objection that without the prohibition of consumption effective action against drug trafficking would no longer be possible. The consumer can still be interviewed as a witness and is then bound to answer questions and to tell the truth, which is not the case where the consumer is interviewed as a suspect. Obviously, in both scenarios, he or she will usually be little inclined to reveal his source of supply. The consumption of narcotics constitutes an infraction. In the case of this category of offence, however, pretrial detention cannot be ordered. If, on the other hand, dealing is also suspected, the legalization of consumption will have no effect on the investigative process.
What is more, real successes in the fight against drug- trafficking cannot be achieved without protracted investigations in any case and are primarily the result of undercover and surveillance operations rather than the interrogation of users, who very often know only the small- time dealer and not the real drug barons 9 . Lastly, even if that were not so, there remains an objection of principle: a prohibition of consumption can be justified only on the basis of considerations of public health and not for the purpose of facilitating criminal investigations. Otherwise, the prohibition in question should be legally classified under the heading of offences against the administration of justice. The removal of the prohibitions against consumption and preparatory activities with a view to personal consumption would be compatible with the international Conventions which have to date been ratified by Switzerland. The Single Convention of 1961 does not require consumption to be made illegal. In addition, the unanimous view is that it requires the prohibition of purchase, possession etc. only where there is an intention to deal (possession for illegal distribution), but not where it is for an individual’s own use (possession for personal consumption) 10 . The position is different, however, under the terms of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988, Article 3( 2) of which requires signatory states to make the possession, purchase or cultivation of narcotic drugs for personal consumption a criminal offence also. Consequently, if Switzerland were to proceed to ratify that Convention it would have to make a reservation, if only on the basis that this obligation is expressed to be subject to the contracting state’s ”constitutional principles and the basic concepts of its legal system”.
6.2 Objectives of cannabis policy
While the models for a cannabis policy described under Chapters 4 and 5 above share the common feature of not prohibiting consumption or preparatory activities, in other respects they are considerably different from one another. In order to appraise them with clarity it is therefore useful to consider what are the aims of cannabis policy in a society in which cannabis consumption has become part of social reality for broad sections of the population.
The overall objective of cannabis policy consists of creating conditions calculated to prevent adverse effects of consumption both on consumers and on society as a whole.
In this regard, a 'cannabis policy’ can draw on the many years of accumulated experience of alcohol policy, which was and still is required to address similar problems. In what follows, possible subgoals under this overall objective are described. After that, the Commission gives its view of what changes vis- à- vis the status quo (improvements or changes for the worse) would be entailed by the models described in Chapters 4 and 5 above.
Subgoals which a cannabis policy must pursue:
6.2.1 Protection of the young
The protection of the health of young persons is one of the foremost priorities of any drugs policy. To safeguard the physical health and the psychosocial development of young people, regulation together with suitable information and prevention measures must be put in place in order to prevent consumption of cannabis by individuals under a given age. The issues to be addressed here are the same as those which arise in relation to legal stimulants, such as, for example, in policy towards alcohol. Technical considerations would favor an age limit of 18. But before opting for that limit, one would need to weigh up the extent to which this would be likely to preserve the black market, which would be less likely a prospect if an age limit of 16 were adopted.
6.2.2 Consumer protection
Like the consumer of alcohol, for example, the cannabis consumer ought to be informed of the composition and origin of the product.
6.2.3 Promotion of health awareness
This subgoal involves getting across the message that the consumption of psychoactive substances is never risk- free. In addition – and as is the case with other substances – measures should be taken to promote awareness that the use of psychoactive substances is not an appropriate means of dealing with personal problems. Regular national campaigns should be mounted as one channel for disseminating these messages.
6.2.4 Minimization of problem consumption
In the case of all users, and not just young people, it is necessary to prevent consumption patterns which hamper character development or are detrimental to the interests or rights of non- users. A model must provide for appropriate counseling and early detection facilities.
6.2.5 Prevention of consumption- related criminalization and stigmatization of young persons
The status quo leads to the criminalization and stigmatization of young people for offences of mere consumption. This can, in some circumstances, have negative consequences.
6.2.6 Relieving the police and criminal justice system of the need to investigate and prosecute petty offences
A model should lessen the workload of the police and criminal justice authorities by doing away with the obligation to investigate and prosecute cannabis users.
6.2.7 Uniform enforcement of the applicable law
The disparities in the manner in which the applicable law is enforced in the cantons, described in section 2.7 above, effectively give rise to a situation of unequal justice. A model should provide for uniform enforcement of the applicable law.
6.2.8 Credibility of drugs policy
Different provisions or sanctions should not be employed against the consumption, possession and supply of psychoactive substances which carry a similar risk. Cannabis policy should, among its other aims, aspire to consistency. Provisions capable of being construed as sending out contradictory signals must be avoided.
6.2.9 Protection of other sections of the community
A model must be capable of protecting the community from undesirable consequences of consumption (nuisances, road safety etc.)
6.2.10 Eradicating the illegal cannabis markets
The different models must also be judged against the criterion of whether they are likely to weaken substantially the illegal cannabis markets or, ideally, eradicate them altogether.
6.2.11 Cost effectiveness of drug policy measures
The models must be capable of redressing the unfavorable ratio of costs to benefits which applies under the present regime (See Annex 3 of "Drug Policy Scenarios" 11 ).
We have deliberately refrained from expressing a view as to the consequences of the various models for medical use. The Commission is of the opinion that cannabis and cannabinoids should be permitted for therapeutic purposes (where their effects are scientifically proven). In any case, the use of these substances in self- medication (as is the case with other substances) eludes any form of control. Consequently, any model for change would represent an improvement on the present situation.
The question as to whether international compatibility should be an objective of a future cannabis policy is discussed as part of the overall conclusions (section 6.4).
6.4 Overall conclusions
The following situation assessment by the Commission does not purport to be scientific, but reflects the consensus view arrived at by the Commission:
Regardless of whether it is decided to retain the status quo or to adopt one of the models described here, an improvement in general health promotion and specific prevention measures is necessary. But under the status quo such measures would have to contend with credibility problems, since the law’s unequal treatment of legal and illegal drugs is increasingly bringing the system into disrepute.
A key issue with all models (including the retention of the status quo) is the protection of the young. The need to set an age limit, in the case of the legalization models, raises the difficult problem that the technically most convenient age limit of 18 would likely entail the continued existence of a black market. A single age limit for all the relevant stimulants (alcohol, tobacco, cannabis) should be pursued.
All models represent an improvement compared with the status quo. While free availability would present advantages in a number of respects, these would be set at nought by uncertainties regarding the protection of the young and other vulnerable groups of users. This model does not satisfy the criteria for a credible drugs policy and, accordingly, is not discussed further in what follows.
All the legalization models entail a need for regulation if they are to be capable of achieving the policy goals. Regulation must be tight enough for objectives such as the protection of the young to be adequately realized; but they must also be flexible enough to leave little incentive for the operation of a black market. Both the licensing model and the controlled purchase model depend greatly on how they are fleshed out in detail. A combination of elements of both is a possibility.
The strength of the legalization models lies in the fact that they raise the credibility of state drugs policy (which in turn creates a more propitious environment for prevention measures) while restoring clarity and lessening the workload of the police and prosecution authorities. In addition, the taxation option could be a source of increased funding for prevention and therapy. The biggest drawback with these models is the fact that they are incompatible with international conventions.
The available literature (see Chapter 5) indicates that the introduction of legalization models may lead to a rise in consumption, albeit temporarily. But all the empirical evidence shows that ultimately consumption levels bear no relation to the existence or otherwise of criminal sanctions.
The medicinal use model should be considered in isolation from the other models and has no bearing on these. However, the option of making cannabis available on a doctor’s prescription for non- medical purposes was not considered further on the ground that it is probably contrary to medical ethics. The use of cannabis and cannabinoids should be permitted both as therapeutic drugs, where their effects have been scientifically proven, and in controlled studies for research purposes.
1 For further arguments - positive consequences ”from a health and social policy perspective” - see experts' report (footnote 3), 50 f.
2 For a comprehensive treatment of this point see, among many other commentators: Albrecht, Art. 19a N. 3 ff.; Jenny 1992,168 ff.; Schultz 1972, 234 ff.
3 See Büttner, 153 ff.; Nestler, § 11 N. 49 ff., where further references may be found.
4 See Rüter 1992, 157 ff.; Killias/ Grapendaal, 100 footnote 21.
5 See section 2.1 above "Epidemiology”; Rüter 1992, 158, 165; Cedro Press Release 5/ 1/ 99, 1.
6 As to the reasons for this see Albrecht, Art. 19 N. 9 ff.; Jenny 1992, 172; 1997, 294 f.; Killias/ Grapendaal, 107.
7 A point already made by Schultz 1972, 235; 1973, 67 f.
8 See also experts' report 1996 (footnote 3), 51 f. with footnote 6.
9 See also experts' report 1996 (footnote 3), 51.
10 See Büttner, 179 f. (with references); Schultz 1991, 244.
11 Sub- commission for Drugs Issues of the Federal Narcotic Drugs Commission: Drug Policy Scenarios, June 1996