Decriminalising Marijuana: Social and Legal Implications Essay

The question of cannabis legislation may at first seem straightforward question. However, there are a wide variety of concerns, arguments, and counterarguments. Australia’s national drug strategy is to “minimize the harmful effects of drugs on Australian society”,[1] a goal that may be best me by decriminalising cannibis.

The possession, use, cultivation, and distribution of cannabis is legally prohibited in Australia. Yet, cannabis, also commonly known as marijuana, reefer, weed, pot, ganja, and many other names, is the most widely used illicit drug in Australia, as in other comparable countries including New Zealand, Canada, and the United States. In Australia in 1993, as many as a third of adults had used the drug at some time, and one in ten had used it within the past week, an increase of more than three times as many since 1973.[2] In 1991-92, 70% of all drug offences in Australia were cannabis related. Prohibition has clearly not been very effective, and there exists a large minority who have used and continue to use cannabis.

Given the failure of prohibition, various proposals have been put forth with regard to relaxing or removing criminal penalties for adult use of cannabis. In Australia, many parliamentary inquiries into drug policy have been undertaken and numerous policy recommendations have been proposed.[3] As cannabis use is a complex issue with many social, economic, medical, and other considerations, all proposals, including maintaining current prohibitions and sanctions, have drawbacks as well as potential benefits.

Prohibition laws and their enforcement carry a significant cost to society. While there are likely to be many social costs associated with cannabis prohibition, they may be difficult to quantify.[4] One concern which may be noted, however, is the harm caused to those convicted in jurisdictions where possession or personal use of cannabis are criminal offences. The penalties may be severe, ranging from prison sentences to heavy fines, and while it may be argued that prison sentences for minor cannabis offences are rare, a cannabis user may still receive a criminal record which will stay with them indefinitely, negatively affecting their ability to obtain employment, immigrate, and other long term negative consequences.[5]

Failure to uphold or carry out prohibitive laws may undermine the deterrent effect of criminal penalties.[6] In most developed nations, fewer than 2% of cannabis users are ever prosecuted; when severe statutory penalties are not enforced, it serves to weaken the law and bring the regulations into disrepute. There are also concerns that when the criminal law is enforced, it is done in a discriminatory or uneven fashion, with those arrested being more likely to be unemployed, socially disadvantaged, and criminally involved than are cannabis users in general community surveys.[7]

The most radical proposal regarding cannabis reform is to remove prohibitions and make cannabis a legal, controlled product not unlike alcohol and tobacco, two substances which are, unsurprisingly, often used for comparison by those who oppose cannabis prohibition. This argument holds that alcohol and tobacco, both of which are socially accepted and legal to use, are of greater detriment to public welfare, and that prohibiting cannabis, which is no more harmful than either alcohol or tobacco, is inconsistent.[8]

The most compelling arguments for legalisation are that it would undermine the power and profits of the criminal drug enterprises who are already doing business in Australia, that legalisation would allow the government to regulate the strength, quality, and other safety concerns associated with cannabis, and that the government would be able to generate a tax revenue stream from the sale of legal cannabis, some of which might be redirected into education and rehabilitation programs.

Unfortunately, the issue is not as straightforward as some proponents might claim. Eliminating the black market would require a supply of cheap, legal cannabis, limiting the government’s flexibility and control with regard to taxing the product.[9] It is well established that cheap, plentiful supply generally leads to increased consumption[10], which would, necessarily, lead to increased public health risks.

Additionally, proponents of legalisation sometimes argue that the cost of prohibition to society is high and that it would be reduced by legalising cannabis. However, it is likely that costs would be the same, or even higher.[11] Regardless of the full or potential costs to society, at this time there is a lack of widespread community support for cannabis legalisation and a corresponding lack of political will to legalise cannabis.[12]

A less radical and more flexible “middle ground”, and one which has been tried in numerous countries and regions including several Australian territories and states, is to enact some form of cannabis decriminalisation. Although specifics vary from jurisdiction to jurisdiction, decriminalisation is a framework in which cannabis remains technically illegal, but penalties for personal use are relaxed or eliminated, replaced with fines or mandatory drug education. Under most such schemes, production and distribution of commercial quantities of cannabis remain criminal acts.

South Australia, the Australian Capital Territory (ACT), and the Northern Territory of Australia have adopted decriminalisation policies toward personal cannabis use.[13] A study of the effects wrought by the 1987 adoption of South Australia’s Cannabis Expiation Notice (CEN) policy, wherein minor cannabis offences render the offender liable to pay a fine but only incur a criminal penalty if the fine is unpaid, indicates that the introduction of the CEN scheme did not lead to any immediate change in the rate of detection of simple cannabis offences. There was no apparent increase in non-users starting to use cannabis. Furthermore, the CEN system is not being abused by frequent users or by small-scale cannabis traffickers.[14]

Similarly, a study of cannabis use following the ACT’s move to decriminalise showed no change in patterns of cannabis consumption following decriminalisation. This finding is mirrored in the conclusions of studies of decriminalisation in other western countries. In the United States, where eleven states downgraded simple cannabis possession from a criminal to a civil offence in the mid-1970s, surveys of cannabis use found no or only slight increases in cannabis consumption. In the Netherlands, use and possession of cannabis has been decriminalised since 1976, yet prevalence of use is similar to or lower than that of other western countries. These findings clearly do not support the common pro-prohibition argument that decriminalisation inevitably leads to increased cannabis use.[15]

Of course, there are significant health risks associated with cannabis use, particularly when used frequently or by young people.[16] Cannabis use is associated with some forms of psychological distress and impairment, can impair cognitive and behavioural functions, may act as a “gateway drug” to further drug use, is associated with increased risks of being involved in motor vehicle accidents, immunological effects, possible reproductive impairment, cardiovascular system over-stimulation, has a correlation with various forms of cancer and respiratory system impairment (due to smoking), and other possible health issues.[17] However, the fact is, the adverse health consequences of cannabis use are not significantly more serious than those of alcohol or tobacco.[18]

Unfortunately, while we do know some correlations and potential health risks associated with cannabis use, prohibition limits the scope of research into this area. The black market is controlled by unscrupulous, criminal entities who may distribute adulterated, unsafe, and dangerous product. The ability and means by which to educate the public about the genuine dangers and safer practices for using cannabis is impaired while the substance is illegal.[19]

We must also consider the social costs and implications of using criminal law and punitive measures to deter people from using cannabis, as well as the implied rights of adults in a free society to decide for themselves and choose what they wish, whether or not it is good or bad for them.

To quote Michael Dennis and William White, “Marijuana is neither a wonder drug or the root of all evil. It is widely used, has some viable uses, has some negative consequences, and will have substantial costs to society whether marijuana is legalized or not.”[20]

Since available evidence indicates that decriminalisation does not lead to significantly increased cannabis use and policing the personal use of small amounts of cannabis may be characterised as a waste of resources which would be better spent elsewhere, decriminalisation seems to be the most reasonable policy to adopt. Indeed, this was the general recommendation of a number of parliamentary inquiries, including the Baume Committee, the Cleeland Commission, the New South Wales Joint Parliamentary Committee upon Drugs, the South Australian Royal Commission into the Non-Medical Use of Drugs, the Australian Capital Territory (ACT) Legislative Assembly Select Committee on HIV, Illegal Drugs, and Prostitution, and the Victorian Premier’s Drug Advisory Council.[21]

We must conclude that these many commissions and inquiry boards offer a viable alternative policy to the current criminal prohibition still operating throughout most of Australia. Decriminalising personal use of cannabis would almost certainly not increase harm to any great degree and is in line with Australia’s national drug policy of harm reduction.

BIBLIOGRAPHY

Dennis, ML & White, W 1999, “The Marijuana legalization debate: Is there a middle ground?”, in The Drug Legalization Debate, ed. J A Inciardi, Sage Publications, Newberry Park, pp 75-100.

Ferguson, D.M.. & L.J. Horwood 2000, “Does Cannabis Use Encourage Other Forms of Illicit Drug Use?”, , 95(4): 505-520.

Hall, W 1997, “The Recent Australian Debate About the Prohibition on Cannabis Use”, , 92(9): 1109-1115.

Hall, W, Degenhardt, L & Teesson, M 2004, “Cannabis use and psychotic disorders: An update”, , 23:4, pp. 433-443.

Hall, W & Lynskey, M 2005, “Is cannabis a gateway drug?: Testing hypotheses about the relationship between cannabis use and the use of other illicit drugs”, , 24:1, pp. 39-48.

Hall, W & Pacula, RL 2003, “Policy Alternatives”, in , Cambridge: Cambridge University Press, pp. 183-226.

McGeorge, J. & C.K. Aitken (1997) ‘Effects of Cannabis Decriminalization in the Australian Capital Territory on University Students’ Patterns of Use, , 27:4, 785-794.

Sarre, R. (1990) ‘A Review of the Cannabis Expiation Notice Scheme in South Australia: Research Note’, , 299-303.

[1]

Blewett, N 1987 cited in Hall, W & Pacula, R L 2003 ‘Policy Alternatives’ in Cannabis Use and Dependence: Public Health and Public Policy, Cambridge: Cambridge University Press, p 191.

[2], 92(9), p 1109.

[3], 27(4), pp 786-787.

[4]op. cit. p 1111.

[5]

Ibid.

[6]op. cit., p 218.

[7]

[8]op cit., p 1112.

[9]op cit. p 199.

[10] p 200.

[11]The Drug Legalization Debate, ed. J A Inciardi, Sage Publications, Newberry Park, p 93; Hall & Pacula, op. cit., pp 207-208.

[12]op cit., p 225; Hall, op. cit., pp 1113-1114.

[13]Cannabis and the law, viewed 3 May 2012, <http://ncpic.org.au/ncpic/publications/factsheets/article/cannabis-and-the-law>.

[14], pp 302-303.

[15], 27(4), pp 791-792.

[16] , 24:1, p 46.

See also: Hall, W, Degenhardt, L & Teesson, M 2004 “Cannabis use and psychotic disorders: An update” , 23, pp 439-440.

[17]op. cit., pp 213-216.

[18], p 217

[19], p 224

[20]op cit., p95.

[21]op cit., p 768.