CHAPTER IV THE RANGE OF REFORMS WITHIN THE SYSTEM: SOFTENING THE PROHIBITION
This chapter reviews the existing reform models of cannabis control that have been implemented at national and sub-national levels around the world within the provisions of the existing international treaties and conventions. It describes the control regimes which have departed from a standard approach of full criminal prohibition, and reviews the evidence of the impact of these alternative regimes on cannabis use and other indicators. Before examining the details of the reform regimes, we clarify: the wider social, legal and practical context; how the alternative regimes have evolved; and the key concepts, terminology and typologies used.
While prohibitions of, or controls on cannabis began in some places in the early decades of the 20th century, cannabis was not formally integrated into international drug control efforts until the ‘International Opium Convention’ adopted in 1925 in Geneva (Zeese, 1999; Mills, 2003; Rødner-Sznitman et al., 2008). Following the Convention’s provisions, cannabis use became subject to criminal controls in nations subscribing to the Geneva Convention and its successor agreements. This included making illegal not only the production, distribution and sale of cannabis, but also of purchase, possession and use. Thus Article 33 of the 1961 Single Convention on Narcotic Drugs provides that “the parties shall not permit possession” of cannabis “except under legal authority”, and Article 36 enjoins each party, “subject to its constitutional limitations”, to make cultivation, transport, sale, purchase or possession “punishable offences when committed intentionally”. Since this wording was still seen as providing too much leeway for national variations, Article 3 of the 1988 Convention, without any allowance for constitutional limitations, specified that such acts should be established “as criminal offences under domestic law”.
Cannabis became the main target of drug enforcement in many Western countries in the 1960s when, for example, the number of arrests for drug offenses in countries like the US or Canada increased to unprecedented levels due to massive increases in arrests for cannabis use (Giffen et al. 1991; Bonnie & Whitebread 1974; Slaughter 1988). Arrests for possession and use figured large among the arrests. As a consequence, large numbers of predominantly young people were receiving criminal convictions, fines and in some cases, custodial sentences. This, in turn, triggered considerable social debate around the appropriateness of criminal cannabis use control in several countries in the latter half of the 1960s. One focus of this debate was a number of large-scale public inquiries or commissions over the following decade, with committees in Australia (‘Senate Social Committee on Social Welfare’, 1977), Britain (‘Report by the Advisory Committee on Drugs Dependence’, 1969), Canada (Commission of Inquiry into the Non-medical Use of Drugs, 1973), the Netherlands (Baan and Hulsman Commissions, 1970 & 1971) and the US (‘Shafer Commission’, 1973) reporting between the late 1960s and late 1970s (UKCIA, 2000). Most of these inquiries concluded in essence that many of the harms perceived for cannabis use were exaggerated, that the effects of the criminalization of cannabis use were potentially excessive and the measures even counterproductive, and that lawmakers should drastically reduce or eliminate criminal penalties for personal use of cannabis. However, in most jurisdictions – the Netherlands probably being the notable exception (Cohen, 1997) – these recommendations for cannabis law reform did not result in substantive policy reform in the short term.
Over the past couple of decades or so, however, several Western jurisdictions have seen changes to or reforms in the ways cannabis use is being controlled, departing from traditional approaches of criminal prohibition that have dominated cannabis use control regimes on national levels for most of the 20th century. Well-known earlier examples of such reforms include the Netherlands or several US states, where distinct changes to cannabis use control towards less punitive interventions were first implemented in the late 1970s (EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007; Single, 1989; MacCoun & Reuter, 1997). More recently, reforms have been implemented or proposed in an increasing number of countries, including countries of the European Union, Australia or North/Central America. Most of these changes have been assessed by expert commentators to be occurring within the bounds, i.e. within the parameters and requirements, set by the international drug control treaties as applicable to cannabis use control on national levels (e.g. Krajewski, 1999), although this point can be contested.
Conceptual Issues, Terminology And Typologies Of Reform
The alternative cannabis use control regimes that have evolved in different jurisdictions in recent years are characterized by considerable heterogeneity in their key characteristics. This complexity makes their analytical examination challenging. As in any analysis of law enforcement, one critical difficulty is that there are numerous discrepancies between the ‘law on the books’ and the ‘law in action’. In other words, the law has a ‘social dimension’, and the ‘making of crime’ is a process influenced by subjective factors (Chambliss, 1975; Ericson & Baranek, 1982; Boyd, 1986). Concretely, the enforcement of existing law – especially based on the power of discretion given to the various institutions of the criminal justice system, notably the police – often occurs selectively or arbitrarily, or even under dynamics of systematic bias (Weitzer & Tuch, 1999; Kellough & Wortley, 2002; Beckett et al., 2006). For example, considering cannabis use enforcement specifically, local police in a city may actively enforce standing law against many, only some, or no cannabis users, while practices elsewhere in the same country may be entirely different, or change from time to time. Such inconsistencies in enforcement can result from local or regional variations in enforcement practice, from the involvement of different levels of legislative or enforcement jurisdictions (e.g. the co-existence of federal, state and local law and police in the US), and from variations in enforcement priorities across time and place, or from differential approaches to perceived situational and individual offender characteristics (Smith & Visher, 1981; Bayley, 1994). Furthermore, both the prosecution and the judges in democratic systems of law have considerable discretion in their decision-making once a charge has been laid (Gottfredson, 1987; Kessler & Piehl, 1998). For example, the prosecution can decide not to prosecute a charge; the courts can decide to acquit the offender, or to impose any of a wide range of sentences (e.g. probation, community or intermediate sentence, fine, jail time) allowed by the applicable statute. These variables alone make existing cannabis use control provisions and practices a complex and often inconsistent area for examination.
One important analytic distinction between different types of alternative cannabis use control regimes is thus the differentiation between de jure and de facto reforms, with the former referring to reforms being written into and stipulated by the letter of the law, and the latter being realized by the way the law is used or applied in the various stages of the criminal justice system (McDonald et al., 1994; Fischer et al., 2003).
The longstanding debate around cannabis use control – in the wider context of drug law and policy reform - has included a number of terms which have not always been consistently applied or clear in their meaning. In general, criminal control or criminal sanctions refer to when cannabis use is defined as a criminal offence by a statute enshrined in criminal law, a criminal charge (e.g. a felony or a misdemeanour charge in the US system) is brought, and a public record (‘criminal record’) is kept following a conviction in court (Hall & Pacula, 2003). The confusion arises in the terms used for measures which in one way or another move away from full criminal sanctions - ‘decriminalization’, ‘depenalization’, and ‘legalization’. In this chapter, we follow Pacula et al. (2005) by using the term ‘depenalization’ to refer to any change of cannabis use control provisions in the letter or practice of the law that reduces the severity of the penalties – whether criminal or civil – imposed on the offender. The label of ‘depenalization’ therefore could include reforms that retain the criminal status of cannabis possession as an offense, yet remove or shorten the periods of incarceration, or reduce fine amounts, as possible sanctions. The term ‘decriminalization’, then, will be used only to refer to reforms which change the status of cannabis use from a criminal to a non-criminal (e.g. a civil) offense. Thus, reform measures of ‘decriminalization’ can be viewed as usually a sub-category of ‘depenalization’, although it can be that the civil penalties are more onerous than the criminal. Since ‘decriminalization’ in turn has often been misunderstood, the term ‘prohibition with civil penalties’ has been seen as preferable to ‘decriminalization’. The removal of all punitive sanctions from cannabis use is often described as ‘legalization’. However, alcohol Prohibition in the US never included criminalization of possession or use of alcohol, and it is not usually thought of as a “legalization” regime. Furthermore, it is likely that even if cannabis sale were legalized it would still be governed by different tools of regulatory law (e.g. public health, commercial or workplace laws).
Several observers have offered analytical frameworks for classifying cannabis use control reforms as they have occurred in different jurisdictions (Fischer et al., 2001; Hall & Pacula, 2003; McDonald et al., 1994; Pacula et al., 2005). There is considerable overlap between the different typologies, though they are useful tools to order and analytically examine the increasing number and variety of reform measures. In this chapter, our examination of cannabis use control reform is based on the typologies originally presented by McDonald et al (McDonald et al., 1994). Our analysis is thus structured around the following regime categories:
- Full prohibition (i.e., no reform)
- Prohibition with cautioning or diversion (‘depenalization’)
- Prohibition with civil penalties (‘decriminalization’)
- Partial prohibition, including:
a) ‘De facto legalization’ (e.g. prohibition with an expediency principle)
b) ‘De jure’ legalization
- Medical marijuana control
We provide exemplary illustrations and descriptions of cannabis use control reform regimes within these different categories as they have been occurring or proposed in different countries. In the next chapter, we turn to the available evidence on the impact of these reforms.
Cannabis Use Control Reform Regimes And Examples
In this section, we will briefly describe key features of the individual cannabis control reform regimes, and then provide examples and illustrations from jurisdictions in which such models have been implemented. It should be noted here that the list of examples given is selective and not exhaustive, and is mainly from established market economies, reflecting the availability of relevant data and information.
It should be noted that departures from the international prohibition regime, at least de jure, have primarily concerned the individual cannabis user. The main aim of the various regimes has been to lessen the burden of criminality on possession and use, and in some places on cultivation for one’s own use. Even in the most far-reaching regimes, there is no explicit legalization of production or distribution of cannabis products, which would involve numerous provisions of the international conventions besides those on use and possession.
Depenalization - Prohibition With Cautioning Or Diversion
Under some cannabis use control regimes that would formally be described as total prohibition, in that cannabis use is formally prohibited and punishable by criminal law, informal or intermediate justice measures – e.g. cautioning or diversion to alternative measures, including treatment – are applied at various stages of the criminal justice system (Baker & Goh, 2004; Erickson & Oscapella, 1999; Lenton et al., 1999; Bammer et al., 2002). Cautioning is typically applied by law enforcement in pre-arrest situations where an offence (e.g. a cannabis possession offense) is encountered and a formal arrest could be made, yet instead of an arrest, the matter is dealt with by warning or cautioning the offender about his or her behaviour and its possible consequences. Cautioning can occur fully ad hoc and informally based on law enforcement’s discretion in the specific circumstances of a situation, or on the basis of more formalized ‘cautioning schemes’, including procedural guidelines when to apply cautioning. These sometimes involve a written notice and/or record-taking, or possibly imposing an intervention in order to avoid more formal consequences (Macintosh, 2006). In the U.K., for instance, police cautioning is normally predicated on an offence being admitted, and is entered in police records. In its effects, such a procedure can be argued not to differ greatly from plea-bargaining to a lesser criminal charge in the US Diversion measures or schemes are usually more formalized procedures aiming to shift offenders from the criminal justice system and its mainly punitive consequences to education, treatment or other interventions typically aimed at changing behaviour (Bull, 2003; Ashworth, 2005; Sherman et al., 1998). Diversion can occur at various stages in the criminal justice process, including pre-arrest, pre-trial, pre-sentence or in the actual sentencing based on diversion schemes (Passey et al., 2006; Bull, 2005; Lattimore et al., 2003; Ulrich, 2002; Spooner, 2001).
Pre-trial diversion schemes, which operate in the time after a charge has been brought, but prior to the charge being dealt with in court, usually involve the offender engaging in certain assessment, education or treatment conditions as part of bail conditions or at the behest of the prosecutor. Pre-sentence diversion measures focus on the period after conviction, but prior to sentencing, or utilize diversion measures as an active substitute for conventional sentencing (e.g. fines or time in correctional institutions). These measures can involve the offender being put on remand while he or she attends assessment and treatment, and performance in this is usually taken into account when he or she is eventually sentenced. Diversion measures at the sentencing stage, i.e. in lieu of conventional sanctions, can occur in the form of community-based or rehabilitation measures (e.g. courses, information sessions, community service) or treatment programs. In recent years, for example, ‘drug treatment courts’ (DTCs) or so-called ‘therapeutic justice measures’, involving a combination of punitive tools and therapeutic interventions typically over longer periods, have become popular post-charge diversion programs for drug offenders in North America (Turner et al., 2002; Taxman & Bouffard, 2002; Belenko, 2001; Goldkamp et al., 2001). Cautioning or diversion measures have been introduced and increasingly applied in response to frustrations with the limited effects of conventional justice measures. They are also motivated by the desire for more ‘constructive’ or rehabilitative interventions, limiting the negative effects (e.g. labelling) of criminal justice involvement. They are used mainly for young or first offenders, but may also be available to others, such as repeat offenders. Other factors in promoting cautioning or diversion measures are cost-reduction considerations - cautions consume considerably less police time than arrests, and diversions may reduce expensive court or jail time (Justice Research and Statistics Association, 2000; Shepard & Blackley, 2007).
In France, cannabis possession is technically a criminal offense as stipulated by the narcotics control law. Available information suggests however that for personal cannabis possession offenses, “there might be no further action” (European Legal Database on Drugs, 2004b) in most instances, i.e. prosecution is waived in the context of an overall diminishing proportion (e.g. 10%) of cases of illegal drug possession ending up in prosecution. Furthermore, a range of diversion measures exist for illicit drug users coming into contact with the criminal justice system in France. It is suggested that “mere drug users are mainly dealt with by therapeutic alternatives” (e.g. by way of a ‘therapeutic order’) or a request to contact social or health services, and thereby avoid criminal prosecution. Furthermore, a new law from 1999 provides a range of diversion measures for “certain minor offenses, particularly related to mere drug use”, including a voluntary fine payment or community service, in lieu of criminal prosecution (European Legal Database on Drugs, 2004b). It is not clear, however, from the available data to what extent or how systematically these alternatives are applied in cases of personal cannabis possession.
Four of Australia’s eight states and territories (New South Wales, Victoria, Queensland, Tasmania) apply ‘prohibition with cautioning’ schemes for minor cannabis offenders, the other states applying ‘prohibition with civil penalty’ schemes (see below) (Baker&Goh 2004; Spooner 2001; Hall 2008). These former - cautioning - schemes are limited to minor possession and implement (bongs, pipes and other smoking equipment) offences, but not to cultivation of cannabis. To be eligible for a caution the cannabis offender must admit to the offence and agree to attend an education session on cannabis, an assessment session concerning drug use problems, or drug treatment, depending on the jurisdiction. Essentially when the offender agrees to a cautioning notice, prosecution for the offence is suspended for a set period (usually of 2 to 4 weeks) to allow the person to complete the intervention stipulated by the caution. Those who fail to successfully complete the requirement are charged with the original offence. Typically, those with a history of violent offences are excluded from the cautioning schemes. Depending on the jurisdiction, cautions may be applied to the first as well as to second or third cannabis offences, but not to subsequent offences, for which criminal sanctions then apply. Possession limits for which cautioning procedures may be used also vary from state to state, ranging from 15g to 50g, and may involve an intervention requirement including a mandatory assessment for drug treatment or a brief intervention.
Cannabis use in Canada is currently controlled formally by a regime of ‘full prohibition’ in which even small amounts of cannabis possession are followed by a criminal charge and possible penalties (up to a maximum of 6 months in jail and/or $1000 fine for a first offense) under the federal ‘Controlled Drugs and Substances Act’, CDSA (Fischer et al., 2003; Senate Special Committee on Illegal Drugs, 2002). Over the past decade, the number of arrests for cannabis possession offenses in Canada has roughly doubled, and they now make up about half of all arrests under the CDSA, emphasizing cannabis as the primary target of drug enforcement in Canada (Silver, 2007). However, a couple of relevant reform provisions or efforts concerning cannabis possession control have been introduced in recent years. One of these reforms involves the vehicle of so-called ‘Conditional Sentencing’ introduced into criminal law provision and practice in Canada in 1996. ‘Conditional sentencing’ is a sentencing diversion mechanism creating the possibility for offenders in certain specified offense categories (e.g. non-violent offenses) to be processed by intermediate sentencing following a guilty plea to the original criminal charge and subsequent conviction, and thus to reduce the extent or impact of penal sanction in favour of more rehabilitate measures (Roberts & Cole, 1999; Roberts & Cole, 1999).
Strictly speaking, Conditional Sentencing measures applied to drug offenses are thus not a measure of decriminalization, yet can result in depenalization effects (e.g. where a drug use offender would receive a treatment or community service order instead of a fine). Since its inception, the application of Conditional Sentencing in Canada has embraced a steadily increasing number of drug offenses, including some cannabis possession offenses, mainly imposing treatment orders in lieu of or in conjunction with other sentencing (Hendrick et al., 2003). Early evaluations show that in Ontario, between 1997 and 2001, the proportion of conditional sentence commencements for drug-related offences more than doubled (Hendrick et al., 2003). Later research illustrates that federally in 2003 drug-related crime (2,518) was the third largest category of convictions, in terms of actual numbers, for which conditional sentences were used, following property crime (4,215) and various forms of assault (2,565) (Statistics Canada, 2007). Its use, however, depends on discretionary decisions by the court. Unfortunately, no detailed data are available on the exact use, nature or outcomes of Conditional Sentencing measures specifically for drug offenders in Canada, and certainly the majority of cannabis possession offenders in Canada are currently being dealt with by standard criminal procedures and sanctions as outlined by the CDSA.
Pressure for reform of British cannabis laws increased during the 1990s as the public became increasingly tolerant of cannabis use, and law enforcement practice was increasingly making use of discretionary cautioning over arrests (Collison, 1994). In 2000, an independent Inquiry into the Misuse of Drugs Act of 1971 recommended that cannabis should be reclassified from a Class B to a Class C drug, resulting in lessened criminal control over personal use and possession of the drug. Reasons given were that cannabis was less harmful to health than most other Class B drugs; and the reclassification, which would make cannabis a non-arrestable offence, would remove the burden of criminalisation from a large proportion of young people. Following a further inquiry, advice being sought from the Advisory Council on the Misuse of Drugs and a ‘successful’ trial of a cannabis warning pilot scheme in the borough of Lambeth in 2001, the British government reclassified cannabis as a Class C drug on 29 January 2004 (Ellison, 2004; Pearson, 2007). However, in an apparent attempt to balance calls for reform against increasingly vocal opposition, reclassification was preceded by an amendment to the Police and Criminal Evidence Act (PACE) 1984 making possession of a Class C drug an arrestable offence (May et al., 2007), and thus eliminating this key de-penalizing element of the re-classification. Concurrent with reclassification, the London Metropolitan Police issued an operations notice to officers stating that, in cases of cannabis possession for personal use where no aggravating factors were present, based on the officers’ discretion the individual should not be arrested. An accompanying Police Standard Operating Procedure postulated a presumption against arrest for adult cannabis possession, with a decision in favour of arrest requiring justification. Further, adults who were arrested could be dealt with by no further action, caution or charge as appropriate (Leigh, 2007). The various changes in the legal control of cannabis use in a relatively short period apparently caused some confusion among the British public with regard to the status of the drug, and also considerable inconsistencies among law enforcement practices. Pearson (2007) reports on a multi-site study after the re-classification that, while a majority of officers proceeded with street warnings when encountering a cannabis use offense, a proportion of mostly senior officers used arrests as the main intervention. As noted in Chapter 1, in 2008, against the advice of the Advisory Council on the Misuse of Drugs, the government reclassified cannabis back to Class B.
While overall the US, through its various layers of drug control laws, is characterized by a full prohibition regime, it is widely documented that eleven US states “enacted legislation during the 1970s that reduced the criminal sanctions associated with possession of small amounts of marijuana” (Pacula et al., 2003, 4 ; see also Single, 1989). Predominantly, these state laws downgraded the legal status of marijuana possession offences, defining possession of small amounts as a misdemeanour, i.e. reducing the severity of penalties following violations while retaining them formally as criminally sanctioned offenses under this offense rubric.
Thus, while these reforms have widely been labeled as ‘decriminalization’, it has been suggested that this may have been a misnomer in strict terms, and these reductions are more appropriately described as ‘depenalization’ (Pacula et al. 2005). Currently, several US states (e.g. Oregon, Colorado, Ohio, Maine, Minnesota, Mississippi, New York, Nebraska, Connecticut, Louisiana, Massachusetts, New Jersey, Nevada,Vermont, Wisconsin, and West Virginia) – including nine of the original so-called ‘decriminalization’ states – carry reform legislation de-penalizing personal possession of marijuana. However, formally most of these statutes also today do not meet formal ‘decriminalization’ standards, and furthermore differ in key features. For example, while most US reform states process marijuana possession as a misdemeanour, others have these offenses categorized as a ‘civil violation’ or a ‘petty offense’ (National Organization for the Reform of Marijuana Laws (NORML), 2008). Fine amounts for possession offenses vary from state to state (e.g. ranging from $100 to a maximum of $1000 in some states), while in some states jail sentences are possible in theory for subsequent or even first offenses. Some of the US states featuring cannabis depenalization regimes also include provisions for diversion measures, for example probation, community service, drug education programs or probation with mandatory treatment (NORML 2008).
Another approach to depenalization was adopted by popular referendum in California in 2000, under Proposition 36, the Substance Abuse and Crime Prevention Act. While the measure applies to non-violent possession offenses for any drug, some affected cases involve cannabis. The Act permanently changed state law to allow qualifying defendants convicted of non-violent drug possession offenses to receive a probationary sentence in lieu of incarceration (Fratello, 2006). As a condition of probation, defendants are required to participate in and complete a certified drug treatment program. If the defendant fails to complete the treatment program or violates other aspects of their probation, probation can be revoked and the offender may be required to serve an additional sentence possibly including incarceration. While some 250,000 drug offenders have been processed under the initiative to date, evaluation data from various years and counties since Proposition 36 was enacted show that offenders with marijuana as their primary drug of offence have consistently been a minority of approximately 12% - 14% of offenders (Fosados et al., 2007; Appel et al., 2004; Longshore et al., 2003). Approximately one in three offenders diverted complete their treatment; however, one third of these completers are re-arrested for another drug offense within one year. It should be noted that Proposition 36 is a post-conviction diversion measure focusing on sentencing measures; it does not eliminate the principal legal status or consequences of a conviction for a cannabis use offense. In cases where incarceration is replaced by treatment - and such treatment is successfully completed – as part of the sentencing imposed for a cannabis use conviction, the severity of punishment imposed is considerably reduced, or a depenalization effect is realized, although this in practice appears to occur only for a minority of offenders included in this program.
In 2006, Brazilian legislation removed the possibility of a jail penalty for possession of drugs. Previously, those caught possessing small amounts of drugs faced between six months and two years in prison, but the new law substituted one or more of the following penalties: treatment, community service, fines, or suspension of the offender’s driver’s license. In the same law, the minimum penalties for drug traffickers and sellers were increased, and a new crime was created of being a "narcotrafficking capitalist," punishable by between eight and 20 years in prison (Drug War Chronicle, 2006). In March 2008, a Sao Paulo appeals court ruled that Brazil’s drug law was unconstitutional with respect to punishing drug possession. It is not yet clear what the effect of this ruling will be (Drug War Chronicle, 2008).
PROHIBITION WITH CIVIL PENALTIES (E.G. FINES AND ADMINISTRATIVE SANCTIONS)
Under this cannabis control reform regime, possession or use remain explicitly outlawed. However, legal control frameworks have been implemented in which specifically defined forms of cannabis possession (typically limited to possession of cannabis for personal use) are exempt or sheltered from criminal control provisions. Instead, a non-criminal punishment (e.g. a civil citation or infringement notice), a monetary penalty (e.g. a limited fine), or some other administrative sanction (e.g. temporary revocation of one’s driver’s license) is levied, with no further criminal consequences or involvement of the criminal justice system. Activities relating to larger-scale possession and production, as well as sale or other supply activities of cannabis, usually remain subject to conventional criminal control procedures and penalties.
Civil penalty schemes aim to reduce the punitive impact (e.g. stigmatisation or criminalisation) and public costs or resources associated with traditional criminal control of minor cannabis possession (Erickson, 1980; Erickson & Murray, 1986; Lenton & Heale, 2000; Lenton et al., 2000b). This is done while maintaining the principle of the illegality of cannabis, to maintain a clear normative stance that cannabis use is wrong and any general deterrence effects against cannabis use, and to stay arguably within the bounds of the international conventions. In systems where small-scale cultivation or purchases of cannabis products for personal use are included in the non-criminal exemptions, the inclusion aims to steer users away from illicit markets, including the likelihood of exposure to non-cannabis substances typically offered in illicit drug markets (Lenton et al., 2000a; McDonald et al., 1994; Priori et al., 2002).
In Belgium, there appears to have been a lack of legislative clarity and consequently some confusion among the general public as to what its cannabis control laws mean (see (Gelders & van der Laenen, 2007). However, prohibition with civil penalties applies, and it is reported that adults found in possession of up to 3g of dried cannabis or resin or one plant for personal use without aggravating circumstances or signs of problematic use are eligible for a simple warning involving a police fine of 15 to 25 euros (Dorn, 2004; EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007). Furthermore, it appears that the 2003 ‘aggravating circumstances or signs of problematic use’ provisions – used as possible grounds for more punitive, i.e. criminal enforcement procedures - were subsequently annulled as ‘unclear’ by the Belgian constitutional court and are currently not used in practice (EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007).
Italy was one of the first countries to depenalize cannabis (and other illicit drug) use, doing so in 1975. It has, however, changed its control policy approach several times since, repenalizing personal drug use in 1990 and depenalising again in 1993 (Solivetti, 2001; van het Loo et al., 2003). Currently, in Italy, cannabis use is regarded as an administrative offence. For cannabis use, a warning is given for the first offence on the presumption that the offender does not intend to repeat the offence in the future. For subsequent offences, an administrative penalty (such as suspension of driver’s license) is given (Dorn, 2004; EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007; Solivetti, 2001)
The Czech Republic abolished offences of possession of illegal drugs for personal use in 1990. However, drug possession was again made illegal by law in 1999. In 2003, after a 2001 evaluation which showed that this policy had failed, the Czech Parliament considered legislative re-classification of drugs based on an assessment of their danger to health (Zabransky, 2004). Subsequently, in March 2006, the draft law which distinguished cannabis from other psychoactive drugs in terms of its harm consequences, and therefore provided for limited penal consequences for its use, was rejected. Czech law, as it currently stands, predominantly applies administrative sanctions to cannabis possession – as well as to the possession of other illegal drugs - if the quantity in question is small (about 10 doses or 30mg THC for cannabis products), subject to a fine or warning imposed by police. Criminal offences and jail terms of 1-5 years apply to larger possession offences (EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007).
Cannabis use control reforms enacted in Portugal have involved elements of both prohibition with civil penalties and diversion schemes. Portugal decriminalized – i.e. removed from the ambit of criminal control - the personal possession, use and acquisition of all drugs including cannabis in 2001. The reforms, which however maintained the formal illegality of drug offences, introduced a system of referral of offenders to Commissions for the Dissuasion of Drug Addiction (CDTs), under which treatment is offered in cases where the individual is identified as having a cannabis use problem. The CDTs are established on a regional basis and comprise a three-person panel (medical professionals, social workers and legal advisers). Police refer the offender to the CDTs, where they must appear within 72 hours. The commission’s primary aim is to support dependent users in attending treatment, but they can also impose penalties such as fines, community service, and suspension of professional practice, and can place bans on the person attending designated places (Hughes & Stevens, 2007). In other circumstances, administrative penalties apply for personal amounts of cannabis defined as up to 10 daily doses, e.g. up to 25g of marijuana or 5g of resin (EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007; Hughes & Stevens, 2007).
As with all psychoactive drugs made illegal by law in Denmark, cannabis possession offences are punishable by a fine or imprisonment of up to 2 years at the maximum, a fine being the standard response in practice. Warnings can be issued at the discretion of the Chief Public Prosecutor’s office for amounts of up to 10g of resin or 50g of cannabis plant material, yet a 2004 change to the law included the directive that warnings for cannabis possession offenses are only to be used in limited circumstances, and that a fine would be the norm (EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007). Amounts for a ‘police fine’ range up to 135 Euros for possession of an amount between 50g and 100g (EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2005).
‘Prohibition with civil penalty’ schemes operate in four Australian jurisdictions - South Australia (since 1987), the Australian Capital Territory (since 1992), the Northern Territory (since 1996) and Western Australia (since 2004) (Lenton et al., 1999; Lenton, 2005). Currently these schemes apply to minor possession, as well as to small-scale cultivation and trafficking offences in some of these jurisdictions. There is no uniformity in the eligible amounts of cannabis for these civil penalty provisions, or in the fines imposed. Thus, at the time of writing, fines ranged from $A50 to $A200 per offence. The amount of harvested cannabis eligible for an infringement or expiation notice ranged from 30 grams in Western Australia to 100 grams in South Australia. Plant limits ranged from 2 plants (hydroponic or not) in the Northern Territory to 1 non-hydroponic plant in South Australia. However, over recent years in some jurisdictions there have been reductions in the number of plants and exclusion of hydroponic cultivated plants from the infringement notice schemes. For example, South Australia’s original 10 (hydro or non-hydro) plant limit was reduced to 3 plants in 1999 (reflecting concerns about increases in yield due to increases in hydroponic cultivation), to 3 plants and further down to 1 plant in 2000, and to 1 non-hydroponic plant in 2001 (Swensen, 2007b). After the West Australian cannabis infringement notice (CIN) scheme’s legislative review at the end of its first 3 years of operation, a proposal is before the WA parliament to reduce the amount of harvested cannabis eligible for an infringement notice from 30g to 15g, to make cultivation of 2 non-hydroponic plants no longer eligible for an infringement notice and to increase the financial penalties which apply (Swensen, 2007a). Typically in these schemes there are no special provisions for repeat offenders, although in the WA scheme, those issued a notice on more than three occasions in a two-year period do not have the option of paying the fine, but must attend the education session to expiate their infringement notice. In some jurisdictions (e.g. South Australia) police are required to issue an infringement notice if the person is eligible, whereas in others (e.g. Western Australia) police have the discretion to issue a notice or a criminal charge, although issuing a notice would be the norm unless the person is simultaneously charged with a serious other offence or is suspected of drug dealing (Lenton 2005).
PARTIAL PROHIBITION (DE FACTO OR DE JURE ‘LEGALIZATION’ OF CANNABIS USE):
Under Partial Prohibition reforms, personal cannabis use and possession activities are no longer illegal, but commercial activities such as large-scale possession, production and supply of large amounts of the drug are prohibited. Under this system, the legality of personal use amounts is usually limited to adults, and often excludes so-called ‘aggravating circumstances’ which are specifically defined (e.g. use near a school or involving minors, etc.) (Macintosh, 2006; McDonald et al., 1994). Importantly, partial prohibition regimes of cannabis possession control are brought about by two fundamentally distinct approaches, namely either 1) legalization of cannabis use by way of an expediency principle (‘de facto legalization’) or 2) de jure legalization of cannabis use. In the first model, cannabis use is usually prohibited by criminal law, yet formalized procedures of enforcement practice (i.e., either at the law enforcement or prosecution level) have created a situation in which personal cannabis use is reliably and predictably not sanctioned by any punitive interventions. In the second model, the legality of personal cannabis use is defined by the letter of the respective law, i.e. 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. Importantly, de jure legalization of cannabis use is not dependent on the way the law is applied in practice. The rationales for such reforms in the jurisdictions where they occurred all include similar elements: 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 (McDonald et al., 1994; Reinarman & Cohen, 2004; MacCoun & Reuter, 1997).
DE FACTO LEGALIZATION (I.E., PROHIBITION WITH AN EXPEDIENCY PRINCIPLE)
Cannabis possession is technically illegal and prohibited under the Dutch drug control law enshrined in the country’s criminal code. Under the ‘expediency principle’ applying to criminal procedures, the prosecution may decide whether or not to enforce the law against certain offenses on the basis of whether this action would be ‘in the public interest’ (Chatwin, 2003; Duncan & Nicholson, 1997). This approach has resulted in a system of de facto legalization 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 (e.g. up to 5g per day) for personal use can be purchased (Chatwin, 2003; MacCoun & Reuter, 1997; Van Dijk, 1998).
Cannabis use or sale outside of the regulated spaces of coffee shops are 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, and it has been suggested that this ‘regulation’ scheme applied may result in a tighter way of controlling where and how cannabis is used than punitive prohibition (Uitermark 2004).
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’, i.e. 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 (Pakes, 2004; Reinarman & Cohen, 2004; MacCoun & Reuter, 1997; van Vliet, 1990). 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, is responsive to local community concerns and interests.
Whilst the guidelines for the retail of cannabis through the coffee shop, such as no sale to minors, no public nuisance and no sale or use of other illicit drugs, have been tightened over the years and appear to work without major problems, problems have been reported with the control of the wholesale supply to the vending outlets (Uitermark 2004; Polak, 1998). Often referred to as the ‘backdoor problem’ of Dutch cannabis policy, grower and supplier networks have formed to meet the existing cannabis demand, yet do not operate in a legally endorsed space or activity (de Kort & Cramer, 1999; Pakes, 2004).
This tenuous basis of the cannabis supply business is difficult for suppliers, in that they do not have access to loans or insurance or tax credits, and for regulators and enforcement, who find it hard to police a phenomenon that is necessary to respond to the tolerated personal consumption of cannabis, yet is illegal and violating standing law at the same time (Lenton et al., 2000a). Furthermore, the Netherlands has been subjected to pressure from some of its European neighbours, the European Union, the United Nations Drug Control Program, the USA, and other countries which adopt a more prohibitionist approach to cannabis, to change its drug policy (Lemmens & Garretsen, 1998; Chatwin, 2003; Boekhout Van Solinge, 1999; Chatwin, 2007). The pressure has been justified on the grounds that the Netherlands policy ‘undermines domestic drug policy’ (e.g. in the USA), stimulates cross-border drug tourism, and undermines international collaborative efforts to reduce illicit drug use, production and trafficking.
These pressures in recent years have also led to modifications towards considerably tighter regulations regarding the operation of coffee shops, a reduction in their numbers, as well as a more stringent enforcement approach towards cannabis use outside of the tolerated areas of cannabis consumption in the Netherlands. Furthermore, commentators have observed that the current model of Dutch cannabis control policy may not be tenable or desirable in the long run, since it is based on a fundamental disjuncture between normative law and control practice, and hence the law should either be revised to reflect the given liberal practice, or be enforced in the spirit of its prohibitive norms (Uitermark 2004).
In German law, cannabis-related offences - like all offences relating to illegal psychoactive drugs - are prohibited by the country’s federal narcotics control law, and punishable by a fine or up to 5 years imprisonment. However, following the so-called ‘cannabis decision’ of the German Constitutional Court in 1994, subsequent to an appeal citing the disproportional approach of criminalizing cannabis use next to the legal availability of alcohol and tobacco, Germany embraced a predominant approach of de facto legalization of cannabis use. The main basis for this approach are chief prosecutors’ directives in most of Germany’s states – based on the so-called ‘opportunity principle’ enshrined in the German legal system - for non-prosecution of small amounts of personal cannabis possession under the drug control law. As a result of these developments in Germany, police have increasingly abstained from proactive cannabis use enforcement, even though German law obliges them to consistently enforce the law as written, and only the prosecutor holds the formal discretion to decide against prosecution (Bollinger, 2004).
While the drug control law is a matter of federal jurisdiction, the states (‘Länder’) are responsible for the administration of justice, and there is a considerable variation between jurisdictions in the guidelines defining how minor cannabis offences are processed under the new non-prosecution practices (Pacula et al., 2005). Recent research has furthermore documented that the application of these differential guidelines has been producing rather heterogeneous outcomes (Aulinger, 1997; Schafer & Paoli, 2006). For example, while the maximum amount of cannabis eligible for non-prosecution for possession ranges from 3 grams (Baden-Württemberg) to 30 grams (Schleswig-Holstein), several states’ directives require non-prosecution for these amounts, whereas in the majority of states this is optional and at the discretion of the prosecutor’s office on a case-by-case basis. On these grounds, it has been found that the proportion of cannabis possession cases which continue to be prosecuted despite being eligible for non-prosecution has ranged from 10% to 60% across states in Germany (Schafer & Paoli, 2006). The decision as to whether prosecution should take place has been found to be most strongly influenced by the offender’s criminal record, the number of previous offenses, substance amounts involved, and other circumstances of the offense (Schafer & Paoli, 2006). The proportion of cannabis possession cases which are not prosecuted without any further requirements (e.g. treatment orders etc.) also varied widely, ranging from 26% to 73% across the states. The authors thus conclude that a “consistent application” of current cannabis non-prosecution practices in Germany only exists in a small minority of very specific case scenarios where the offender is “at least 20 years old, has no criminal record and the offense was not characterized by aggravating circumstances” (Schafer & Paoli, 2006).
In Austria, similarly to Germany, cannabis possession is, in technical terms, criminally prohibited by the narcotics control law. However, on the basis of prevention and treatment clauses introduced into the drug law, prosecution will not take place, especially if the person has not previously come to police attention for cannabis use and is not seen as in need of treatment. This renders personal cannabis possession largely legal on a de facto basis (European Database on Drugs, 2004a).
In Spain, possession or consumption of illegal 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 (van het Loo et al., 2003). Possession and use in a public place is subject to administrative sanction (e.g. suspension of driver’s licence) or a fine (EMCDDA European Monitoring Centre for Drugs and Drug Addiction, 2007). According to Gamella and Rodrigo (2004), this is the result of changes introduced in 1983 which decriminalised the use of all drugs and established a two-tiered legal system for production and supply of illegal drugs based on their perceived harmfulness, with cannabis in the ‘softer drug’ tier. However, since 1992 those carrying cannabis in public run the risk of being apprehended by police and fined. This is thought to be a key driving force behind the increasing popularity of home cultivation of cannabis since the mid-1990s (Gamella & Rodrigo, 2004).
‘DE JURE’ LEGALIZATION
In 1975, the Alaska Supreme Court ruled that the state constitution’s privacy protections barred the state from criminalizing adults possessing and consuming small amount of marijuana in the privacy of their homes. The legal decision thus stipulates a form of spatially restricted ‘legalization’ of personal use within this context. In the long legal and legislative struggle which has ensued, the courts have not strayed from this position, despite a voters’ initiative to overturn it in 1991 and 2006 legislation to recriminalize possession. The issue is again back before the state Supreme Court in 2008. (http://www.alternet.org/drugreporter/81118/?page=entire)
In Colombia, the personal possession of small quantities (e.g. <20 grams) of any psychoactive drug is legal by law, following a Colombian Supreme Court ruling in May, 1994 that the law infringed on a person’s constitutional right to self-development and expression. However, as in Alaska, the political process moved to limit the effects of the decision, passing “a series of decrees banning drug use later that same month ... The decrees ban drug use almost everywhere except in the home” (Gouvis Roman et al., 2005:69).
In Switzerland, the currently existing federal narcotics law makes cannabis possession and use a criminal offense. The law’s enforcement with regards to cannabis use differs between cantons, yet in recent years has become more restrictive, with increasing numbers of charges for personal use/possession (Eidgennossische Kommission fur Drogenfragen, 2008; van het Loo et al., 2003). In 2006, more than 33,000 arrests for cannabis use offences have been reported, constituting approximately 70% of all arrests under the narcotics law (Bundesamt für Polizei, 2007).
A government proposal for a comprehensive reform of the narcotics control law was to introduce de jure changes exempting personal cannabis possession and use from any penalties and also to allow some cultivation and trade for personal use under certain conditions (Schweizer Bundesrat, 2001). This proposal was introduced into the Swiss Parliament in 2003 (van het Loo et al., 2003) (Kapp, 2003), but rejected in 2004 (Geiser, 2007).
This proposed initiative for the reform of legal control of cannabis use in Switzerland may be considered unique in Western countries, in that it provided for an explicit framework that sheltered personal cannabis use from any punitive consequences by law (Fischer et al., 2003). However, the initiative in the end did not find the necessary political and public support, in a situation with some indications of rising cannabis rates, e.g. among Swiss teenagers, over the period of the past decade (De Preux et al., 2004).
More recently, the Swiss ‘Hemp Initiative’ – an effort mainly driven by NGOs and diverse interest groups in the drugs field in Switzerland – drafted a proposal which again proposes to legalise personal cannabis use as well as to create a system of government-regulated cannabis distribution. Under the unique Swiss political system, this proposal needed to be put before a parliamentary vote and a public referendum. In March 2008, the initiative was barely defeated by both chambers of the Swiss parliament, and it is also expected to be rejected by the Swiss public in the upcoming referendum (NZZ Online 2008; Geiser, 2007).
In response to the Hemp Initiative’s cannabis law reform proposal, the Health Committee of the Swiss National Council (federal government) announced a counter-proposal in January 2008, which also intended to stipulate that personal cannabis possession and use for adults without risk to others to be exempt from any penalties, i.e. proposing a framework of de jure legalization for personal cannabis use (NZZ Online, 2008). However, this proposition also did not find sufficient support within the government, and hence did not go forward. These various failures of initiatives for cannabis law reform in Switzerland mark a decade-long period of such reform efforts without concrete successes, and commentators suspect that material reforms are unlikely to come in the near future (NZZ Online 2008).
There are long traditions of use of cannabis in various forms in India for religious and medical as well as sociable purposes. The 1961 Single Convention provided for a 25-year grace period by which time nonmedical use was to be discontinued, and accordingly the Indian Narcotic Drugs and Psychotropic Substances Act of 1985 outlawed customary use of cannabis, with the exception that drinks made from cannabis leaves (bhang) were allowed (Charles et al., 2005). Use of such drinks is particularly associated with the celebration of the festival Holi in March and Baisakhi in April (Wikipedia, 2008). Bhang is sold in a number of Indian states; travel guides list the states of Uttar Pradesh, Rajasthan, Madhya Pradesh, Uttarakhand and Orissa (Wikitravel, 2008). Bhang lassi, a yogurt- or milk-based drink, is the most common form, but cookies, chocolate, curries and a smokable form can also be found on sale in shops marked as “Government-authorized bhang shops”. As with alcohol shops in some Indian states, authorizations to run these shops are periodically sold by auction as a control measure and source of state revenue.
A SPECIAL CASE: MEDICAL MARIJUANA USE CONTROL
In recent years, the regulation of so-called ‘medical marijuana use’ (MMU), particularly by US state provisions, has contributed to some notable legal reform arrangements of cannabis control specifically for sub-groups of individuals using cannabis for medicinal – as distinct from recreational – purposes (Hall & Degenhardt, 2003). These developments have occurred primarily in the cannabis-prohibitionist contexts of North America (e.g. Canada and several US states), more than in other Western countries. Reasons for this geographically isolated phenomenon may include that the MMU debate may not have been as salient outside of North America, as access to cannabis (purportedly) for treatment of medical conditions is more easily facilitated in the context of the cannabis reform arrangements that have occurred in many systems outside of North America (Joy et al., 1999).
In essence, the main modus operandi of the MMU provisions in Canada and the United States is that they protect, or exempt, recognized medical marijuana users from the enforcement of standing cannabis control law that would render their cannabis use illegal and result in punishment otherwise. In other words, they establish a sub-system of ‘de jure’ legalization vis-à-vis MMU frameworks (an exception is the state of Maryland, where the exemption does not eliminate criminal punishment yet allows for fines, i.e. relies on the use of ‘administrative penalties’). Previously, MMU laws which had existed in several US states were largely symbolic. The state of California enacted the first of the ‘new wave’ of MMU state laws in 1996 (Pacula et al. 2002). The law – as most of the ones to follow in, to date, 12 states covering approximately 20% of the US population – stipulated that individuals who received a recommendation from a medical doctor for marijuana use for medical purposes are allowed to grow, possess and use limited amounts of marijuana. The law also protects specified “caregivers” who assist in the above-mentioned activities, as well as shields doctors from federal prosecution for discussing or recommending marijuana use. The 11 other MMU states (i.e., Alaska, Colorado, Hawaii, Maine, Montana, New Mexico, Nevada, Oregon, Rhode Island, Vermont, Washington) have created similar laws in the following years, most of which define a list of specified illnesses for which medical marijuana use might be recommended and hence result in protection from enforcement. Some of the states by now also operate formal registry programs of sanctioned medical marijuana user (Marijuana Policy Project, 2007).
In Canada, the so-called ‘Medical Marijuana Access Program’ [MMAP] was established by the federal government in 2001 in the wake of a ruling by the Ontario Superior Court concluding that the blanket prohibition of cannabis use violated constitutional rights for individuals deriving medical benefits from marijuana use (Lucas, 2008; Manfredi & Maioni, 2002). Through the MMAP, medical marijuana users need to apply – on the basis of medical documentation – for exemption from criminal prosecution for both personal use and production of limited quantities of marijuana. In 2003, the Canadian MMAP was – again through the ruling of a higher court – forced to establish a government-sponsored supply or marijuana for individuals approved for medical use who were unable to find other ways of legally obtaining the drug (Lucas, 2008). Since its inception, only several hundred individuals have been approved under the MMAP. The program has been criticized for its lengthy application process and restrictive criteria, as well as for approved users’ inability to obtain customized marijuana strains from governmental sources, which have allegedly led many medical marijuana users in Canada to continue their MMU without a formal exemption provided by the MMAP (Health Canada, 2005; Sibbald, 2002).
A recent investigative report on medical marijuana in California (Samuels, 2008) gives evidence that the scheme has grown into something close to de facto legalization. There are more than 200,000 Californians with a medical letter from a doctor entitling them to purchase cannabis, and hundreds of dispensaries selling it. An owner of one of these estimated that 40% of her clients suffer from serious illnesses such as cancer, AIDS, glaucoma, epilepsy and multiple sclerosis. The rest have ailments like anxiety, sleeplessness, attention deficit disorder, and assorted pains (Samuels, 2008). Despite a continuing “low-level civil war with the federal government” in the form of the Drug Enforcement Administration, a stable grey market has emerged, with entrepreneurs avoiding trouble by following such rules as: don’t advertise, don’t sell to minors or cops, and don’t open more than two stores. Though cannabis sold through the dispensaries is only a small fraction of the total California cannabis market, it is reported that the wholesale price of good cannabis has fallen by half since the legalization of medical marijuana (Samuels, 2008).
REFORM BEYOND PERMITTING CANNABIS USE: REGULATING AVAILABILITY
In cannabis control reform regimes where cannabis use is depenalized or even permitted on a de facto or de jure basis, as in the reform systems in the countries outlined above, the supply and availability of cannabis for the purpose of personal possession and use inevitably becomes a key practical matter. This is an especially challenging issue, since most standing drug control laws in these reform systems strictly prohibit and provide for heavy punishment for any cannabis supply activities (and in some instances have been strengthened further in exchange for more liberal control approaches to dealing with possession or use), and thus by default may expose most users to considerable criminal enforcement and consequences which the alternative use control measures are aiming to reduce or avoid. Conversely, some cannabis use control reform regimes have included provisions for a reduction of penalties (e.g. by way of imposing civil penalties, e.g. a limited non-criminal fine for the cultivation of a small number of cannabis plants) for limited cultivation of cannabis for personal use purposes (e.g. the various Australian civil penalty schemes in effect, or the proposed Canadian cannabis use reform law).
Yet there have been several other proposals which have taken the issue further and recommended for controlled or regulated cannabis availability schemes to be put into place as a complementary measure to legal control reform regimes aiming at use/possession. Under a regulated cannabis availability system all cultivation, sale and supply of cannabis would be controlled or regulated by the government to a greater or lesser extent, e.g. either by the government carrying out an active monopoly for cannabis production and distribution (e.g. via state-owned production facilities and/or outlets), or by way of regulating and licensing designated private or commercial producers and distribution outlets. Any cultivation or distribution occurring outside the government regulated system would likely be illegal and subject to criminal sanction (McDonald, Moore, Norberry et al., 1994). Such a licensing or monopoly system would resemble the systems by which alcohol production and dissemination is handled in a large number of jurisdictions (Babor et al., 2003).
Worldwide, at the present time there are few working examples of cannabis supply regulation, though several have been proposed (see Haden, 2004). Under the Dutch system of ‘de facto legalization’, the retail dissemination of cannabis in ‘coffee shops’ is regulated by state authorities, but not the production (Pakes, 2004; Lenton et al., 2000a; MacCoun & Reuter, 1997). A recent Senate inquiry in Canada recommended that a system of government controlled cultivation and distribution of cannabis for recreational purposes be implemented in conjunction with the legalization of personal cannabis use (Senate Special Committee on Illegal Drugs, 2002). The government-sponsored reforms specific to cannabis use proposed as part of the narcotics control law revisions in Switzerland in 2004 included provisions for state-regulated cannabis availability and dissemination in conjunction with the proposed de jure legalization of personal cannabis use (Fischer et al., 2003). The state-authorized bhang shops in Indian states are functioning examples of such systems.
The state-sanctioned existing distribution systems for medical cannabis users (e.g. cannabis buyers’ clubs) in Canada and the US are another operating model of regulated cannabis availability, albeit limited to the special sub-population of medical cannabis users (Lucas, 2008; Hall & Degenhardt, 2003). These private facilities are granted permission from the state to distribute cannabis products to individuals recognized as medical cannabis users. The Canadian MMAP features an additional detail of interest, in that the federal government itself operates a cannabis cultivation facility (in an abandoned underground mine in Flin-Flan, Manitoba), which produces cannabis offered for distribution to members of the MMAP.
1. Cannabis use control reforms which have been implemented in different countries are not always easy to get detail on or to categorise cleanly according to the reform typologies proposed in our examination. Even within clearly defined parameters of legal cannabis control, legal provisions and their implementation change over time, vary within jurisdictions and can also hinge considerably on discretionary practices used by relevant authorities (e.g. institutions of the criminal justice system).
2. The main thrust of cannabis use control reforms observed has been towards less severe penalties for personal cannabis use, which can be expressed in either the quality (e.g. whether criminal or non-criminal) or the quantity (e.g. amount of fine) of penalties imposed. In many instances, however, traditional forms of punishment have been replaced by other behavioural requirements of the user, e.g. diversion to education or treatment. Few systems do not impose any penalties at all on cannabis users.
3. A key conceptual distinction for cannabis control reform systems is whether alternative regimes are brought about by so-called de facto or de jure mechanics. In the former, reforms are brought about by changes in how existing – usually conventional criminal – cannabis control law is applied. Such reforms then do not necessarily reflect the spirit or letter of the existing law, rely on discretion, and may be considered temporary or not solidly founded in the material base of law. The latter reform approaches are enshrined in law, and as such are an outcome of legislative or constitutional processes. As such, they represent a more explicit expression of existing norms regarding cannabis use, as well as offering greater predictability of consequences for cannabis users.
4. While quite a number of countries have implemented reform measures aiming at cannabis use control, fewer have addressed the issue of supply, often for political reasons. These issues are inevitably linked, since 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, yet also in 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.