Reforming the Old and Refining the New: A Critical Overview of
Australian Approaches to Cannabis
Maurice Rickard
Social Policy Group
10 October 2001
Contents
Major Issues
Introduction
Cannabis in the Australian Context
Assessing Alternative Approaches to
Cannabis: Clarifying Goals and Criteria
Australian Approaches to Cannabis
Compared
Prohibitionism in Australia: Criminal versus
Civil Penalties
Targeting of Harm
Proportionality in Penalties
Comprehensiveness
Effective (and Pragmatic) Harm Reduction
Efficient Harm Reduction
Integrated and Consistent Harm Reduction
The Overall Evaluation: Which Australian Approach has a Greater
Capacity to Reduce Harm?
Room for Improvement?
Improvements to the Civil Penalty
System
Improvements on the Civil System? The Non-prohibitionist
Alternative
Appendix 1: Legislative Approaches in the
Australian States and Territories (and Other Relevant
Non-legislative Initiatives)
Appendix 2: Current and Emerging Overseas
Approaches to Cannabis
Endnotes
Major
Issues
Cannabis is by far the most widely used illicit
drug in Australia. It is used by all ages, but most particularly by
Australian youth. The most recent data show that usage among young
people continues to grow, and sometimes in ways that might be cause
for concern. Although cannabis use is not as harmful (in terms of
individual health and public health costs) as tobacco or alcohol
abuse, it is not as innocuous as many would portray it. There is
emerging evidence of the role of cannabis in the development of
dependence syndromes. And attention is focusing increasingly on the
nature of its relationship to mental illness. There are also
legitimate concerns about its role in the development of more
harmful illicit drug use.
Different Australian states and territories
adopt different legislative approaches to cannabis. In some
jurisdictions all cannabis possession, use and supply is criminally
prohibited (Victoria, New South Wales, Tasmania, Queensland, and
Western Australia), while in others, only civil penalties apply for
some minor offences (South Australia, Northern Territory and the
Australian Capital Territory). With the former, all cannabis
related activities are prohibited in law, and counted as criminal
activities. In line with their criminality they can attract serious
penalties (such as major fines, or incarceration, or the
equivalent). With the latter, cannabis related activities are still
prohibited by law (i.e. are illegal), but some are not considered
criminal offences. Less serious 'civil' penalties are applied to
minor offences such as possession or cultivation for personal use.
Rather than the possibility of a criminal conviction, minor fines
or other forms of expiation apply (i.e. ways of discharging an
obligation or penalty, which can include payment of fines, but also
community work, for instance). A civil penalty system applies in
the case of minor traffic infringements.
Although drug related legislation has
traditionally been a matter for the states and territories, it is
still of considerable significance to the Commonwealth. The Federal
Government has responsibility for allocating funding to the states
in a number of relevant areas, including health care. Mental
health, in particular, has been among its key priorities for a
number of years. As well as this, there is some Commonwealth
legislation that is relevant to cannabis (e.g. laws penalising the
importation of cannabis),(1) and arguments about
preferred legislative approaches at state and territory level may
have relevance to those Commonwealth laws. The situation is similar
with Australia's participation in international treaties which
govern drug use. Perhaps most important, is the issue of whether
state and territory approaches are consistent with long-standing
national policies on drug matters. Since 1985, Australia has had a
policy of harm minimisation in relation to drug use, both licit and
illicit. Officially, it still is the policy.
The current paper presents the most recent
information about cannabis use and supply in Australia, as well as
the nature of the potential harms associated with cannabis. The
paper takes into account not only the harms and social/economic
costs associated with cannabis use, but also those associated with
the acquisition and legislative control of cannabis. The paper
examines the short-term physical and psychological effects of
cannabis use, as well as longer term potential health risks, such
as the possible connection with mental illness, the development of
cannabis dependence, and the hypothesis that cannabis is a gateway
to other more dangerous forms of drug use. The social, personal and
economic costs associated with different systems of cannabis
legislation are also considered-factors such as the personal
impacts of a criminal conviction, the economic costs of processing
cannabis offenders through the criminal justice system, and the
potential dangers associated with the different ways of acquiring
cannabis, particularly exposure to the criminalised cannabis
blackmarket.
In the context of this and related information,
the paper compares the capacities of the two Australian approaches
to reduce cannabis related harm (as per national policy). That
comparison is conducted critically and systematically, in terms of
how strongly they each reflect the key characteristics of harm
minimisation.
Very often a commitment to harm minimisation is
expressed without being fully explicit about what that means. A
central undertaking of this paper is to articulate the core
properties of harm minimisation-what it requires of policy and
legislation-and to apply these as criteria for comparing the
relative capacity of the two existing Australian approaches to
reduce harm. The approaches will be compared in terms of:
-
- how accurately their legislative aims and objectives target
harm
-
- how comprehensively they apply processes of law enforcement and
administration to target harm
-
- how proportionate the penalties they impose are in relation to
the harm of the activity they penalise
-
- how effective they actually are in reducing harmful or high
risk use, acquisition and supply, and
-
- what other costs and harms they generate in seeking to reduce
cannabis related harms (in terms of resourcing and unintended side
effects and outcomes).
The importance of having a unified and
consistent approach to cannabis (and other harmful drugs) across
Australian jurisdictions is also noted.
There is, in particular, one factor whose
importance echoes throughout the comparison. There is no
legislative approach to cannabis (or drug use in general) that does
not, itself, generate costs and harms of its own. Some of the more
serious harms that attend illicit drug use in Australia, and
throughout the world, are a consequence of the very legislative
approaches that are designed to deal with drug use. These
approach-generated harms need to be fully recognised and solidly
factored into the harm minimisation equation. A key message
emerging from the paper is that the choice between legislative
approaches to cannabis will always be a compromise that involves
enduring some harms and costs for the sake of reducing other more
significant ones. With this in mind, the paper probes a little
deeper toward its end, and briefly examines the status of
nonprohibitionism with respect to harm minimisation.
The purpose of the paper is twofold: to provide
a single source for the most recent data and research in this area,
but also to put that data and research to work by treating it as
evidence that is relevant to choosing one way or another between
approaches to cannabis. With complex social-legal questions such as
these the devil is often in the detail, and the arguments will
inevitably be data driven ones. Despite the complexity from time to
time, some key findings and conclusions emerge throughout the
paper, including:
-
- Over one-third of all Australians, and 40 per cent of teenagers
have used cannabis, and it is being used more regularly by
teenagers. However, cannabis use tends to decline beyond young
adulthood, suggesting that among young people it is mostly
experimental and transitional, with relatively few becoming ongoing
regular users. Adolescents are using cannabis at an earlier age,
and early initiation has been associated with increased risk of
dependence. The highest rate of cannabis offences (mostly for
consumption) are concentrated in the 15-19 year age group, and many
offences result in a criminal conviction.
-
- The significant health related risks and harms connected with
cannabis use are associated with heavy and sustained use. There are
identifiable groups of people who are more at risk of heavy or
sustained use or the harms resulting from it. These include people
who start cannabis use early in adolescence, and those who are
vulnerable to psychosis.
-
- Cannabis use that is not heavy and sustained (but which is
occasional and recreational) generally does not involve the same
significant risk of health related harm (except for particular
contexts such as operating vehicles or machinery).
-
- The Commonwealth National Illicit Drug Strategy has, for a
number of years, provided policy direction in relation to cannabis
and other drugs, as well as extensive funding for research and
program development. While there is no ongoing Commonwealth funding
specifically tagged for cannabis related issues, many of the
programs funded through the national drug strategy will have
application to, or impact on, those issues (e.g. funding of general
drug treatment programs). The peak government advisory body, the
Australian National Council on Drugs, also provides policy advice
to the Federal Government. The most recent initiative sponsored by
the Commonwealth to have impact on state approaches to cannabis, is
its funding for the development of the 'Tough on Drugs' drug
diversion programs in the states and territories. In the case of
some jurisdictions (e.g. Qld), this funding has contributed to the
initiation of cannabis cautioning schemes.
-
- There is widespread use of cannabis in most countries,
including the European Union, the United States and Canada. There
are varied approaches to cannabis legislation in these overseas
jurisdictions. At the federal level, the United States criminally
prohibits all cannabis related activity, though a number of states
have adopted a civil penalty approach in the past. Canada also
criminally prohibits cannabis related activities. There is more
diversity of approach, however, in the European Union. The
Netherlands has for some time not penalised possession or use of
small amounts of cannabis, and makes provision for the state
regulated availability of cannabis in 'coffee shops'. Spain and
Italy have also for some time had a civil approach to cannabis (and
other drug use). Recently, some other EU countries (Belgium,
Portugal and some German states) are liberalising their approaches
by adopting civil or no penalties for minor cannabis offences.
Switzerland has also very recently opted for state controlled
management of the cultivation and distribution of cannabis for the
personal use of its adult citizens.
-
- Australian legislative approaches involving civil penalties
have a greater capacity to minimise cannabis related harms than
approaches employing criminal penalties. The former are more
sensitive in their targeting of cannabis harms, more effective in
achieving their aims, more efficient in their use of resources and
the harms and costs they produce, and more proportionate in the
penalties they impose.
-
- The civil penalty systems in Australia do not act to increase
cannabis use more than the criminal prohibitionist systems.
-
- The civil and criminal prohibitionist systems in Australia are
similar in their capacity to deter or reduce cannabis use.
-
- The operation of civil penalty systems in Australia cost
considerably less than the operation of criminal prohibitionist
systems.
-
- Because the civil systems in Australia do not apply criminal
penalties to low-level cultivation (unlike the criminal
prohibitionist approaches), it involves less risk of cannabis users
being exposed to more dangerous drugs through the organised
criminal cannabis black market.
-
- Despite the civil approaches being preferable, some of them
have been shown to have shortcomings. Nevertheless, these can be
readily addressed in order to maximise the capacity of those
approaches to reduce harm.
Civil and criminal penalty based approaches to
cannabis are both alike in being totally prohibitionist. Arguably,
total prohibitionism will still leave in place a significant range
of potential harms-most notably connected with the organised
cannabis black market. There are some preliminary reasons for
considering the possibility of nonprohibitionist approaches to
cannabis as alternatives.
Introduction
The undertaking of this paper is to present a
comparative overview of the legislative approaches in Australian
state and territory jurisdictions to cannabis use and supply. It is
true that laws and legal approaches do not exhaust all of the state
sponsored responses to drug use and supply. In fact, it could be
argued that some of the most enduring impacts on problems of drug
use are attributable to the operation of drug programs, policies
and community based initiatives. Notwithstanding this, the focus
here will remain fixed on legislation for the important reason that
legislation determines and limits what sorts of drug policies,
programs and initiatives the community can ultimately pursue.
No sound overview of the impacts of drug
legislation can proceed without all of the relevant available data
at hand. The paper therefore begins with a survey of the most
recent data on patterns of cannabis use and supply in Australia.
Against this background, a brief description is supplied of the
existing Australian legislative responses (A more extensive
description is provided as Appendix 1. Also, a description of the
approaches to cannabis taken overseas in the European Union and in
North America is supplied in Appendix 2). Given that the task of
the paper is a critical comparison, attention then turns to the
issue of how different legislative approaches are to be compared
and judged. Arguments are presented in defence of harm minimisation
as the primary goal of drug policy, and consequently as the primary
measuring stick for legislative success. Following on this, is an
extensive survey of the most recent research and views on the
nature of the potential harms that harm minimising cannabis
legislation should address. These include potential health related
harms from cannabis use, harms that may attend different modes of
acquiring cannabis, and importantly, the sorts of harms and costs
that may be brought about by legislation governing cannabis use and
supply. Along the way, an attempt is made to give some sense of how
serious and how likely such harms might be, as well as any
potential benefits of cannabis.
The choice between legislative approaches will
turn ultimately on how well the various harms and risks are
reduced, or more precisely, the capacities that the
different legislative approaches have to reduce them. Determining
what these capacities are, and exactly what the successes and
failures of an approach might be due to, is inevitably a difficult
and detailed thing. In order to facilitate and organise this
assessment, the paper identifies a number of key hallmarks of harm
minimisation to act as criteria or dimensions for evaluating
particular facets of different legislative approaches.
All of the relevant available evidence and data
about the operation of Australian approaches (and from time to
time, overseas approaches) is brought to bear to determine how well
they meet each criteria. The project of comparison is continued
just a little more at the end, where some observations are made
about prohibitionism compared to nonprohibitionist
alternatives.
Cannabis in the Australian
Context
Patterns of Cannabis Use
Cannabis is the most commonly used illicit drug
in Australia. The following dotpoints provide a summary of recent
characteristics of its use and its users.
Prevalence
-
- It has been estimated that, in 1998, 39 per cent of the
Australian population over 14 years of age had used cannabis at
some point in their lifetime, and nearly a fifth of them (2.7
million people) had used it in the preceding 12
months.(2)
-
- Cannabis is also the most increasingly used illicit drug in
Australia in recent years, with an eight per cent increase between
1995 and 1998 in the proportion of people over 14 years of age who
have used cannabis at least once (compared to a three per cent
increase for amphetamines or tranquillisers, and nearly one per
cent for heroin or cocaine).(3)
Young People
-
- Although a significant proportion of older adults have used
cannabis (39 per cent of 30-59 year olds in 1998, an increase of
over 10 per cent since 1995 of 30-59 year olds who have used
cannabis), cannabis users are mainly young people, with nearly 60
per cent of all those who used cannabis at least once in 1998 being
14-29 year olds.(4) It is also estimated that, in 1998,
four in every 10 teenagers (14-19) had used
cannabis.(5)
-
- The use of cannabis by young people has increased
significantly, as well, with the proportion of 14-24 year olds who
used cannabis within the preceding year increasing by 36 per cent
in the ten years between 1988 and 1998.(6)
-
- Not only are cannabis users more likely to be young people,
young people are more likely to use cannabis than any other illicit
drug (being used by 38 per cent of 14-24 year old illicit drug
users in 1998, compared to 16 per cent in that group who used
ecstasy or amphetamines, and just over three per cent who used
cocaine or heroin).(7)
-
- Results of a 1993 national household survey indicate that 96
per cent of cannabis users did not go on to try other illicit
drugs.(8)
Regularity of
Use
-
- There is some evidence to suggest an increase in the regularity
with which teenagers (14-19 years) use cannabis. In 1995, 33 per
cent of adolescent cannabis users used cannabis at least once a
week (six per cent more than in 1988), and 41 per cent used it once
or several times a month (14 per cent more than in
1988).(9) This contrasts with the regularity of cannabis
use considered overall (for all age groups together) for the same
period, with a decline of six per cent in those using at least once
a week.(10)
-
- Data from the 1996 Australian School Students Alcohol and Drug
Survey indicated that 36.4 per cent of surveyed 12 to 17 year olds
reported using cannabis at least once in the previous week, with
four per cent of males reporting cannabis use on at least six
occasions in that week.
-
- There is some recent evidence that an estimated 12 per cent of
adolescents who have used cannabis in their middle school years go
on to daily (and potentially harmful and dependent) cannabis use in
their late school years/late teens.(11)
-
- Despite the increase in regular use among teenagers, cannabis
use tends to decline beyond young adulthood. While 77 per cent of
teenagers in 1998 who had ever used cannabis had used it within the
preceding twelve months, only 57 per cent of 20-29 year olds who
had ever used cannabis used it recently, and 35 per cent of 30-39
year olds.(12) This suggests that cannabis use among
young people is mostly experimental and transitional, with few
becoming ongoing regular users. For those who do continue their use
into middle age, however, frequency of use appears to decline for
women, but increase for men.(13)
-
- There is a high rate of heavy cannabis use among young adults
with psychosis (a third being daily users)(14) and among
adolescents involved in the criminal justice system.(15)
Psychosis is a class of conditions typified by a distorted
perception of reality.
Age of starting
-
- There is evidence that teenagers are increasingly coming to
start cannabis use at an earlier age. It is estimated that in 1993,
14 per cent of people surveyed indicated that they first used
cannabis at 15 years old or less, and this increased to 18 per cent
in 1995.(16)
-
- It has also been noted that people who have used cannabis
recently, and use it frequently, are more likely to have started
cannabis use earlier.(17)
-
- Recent research(18) has found that among sentenced
property offenders, the average beginning age for regular use of
cannabis was 14.7 years, compared to 18.4 years for use in the
community as a whole (acording to results from the 1998 National
Drug Strategy Household Survey). There is a suggested association
between criminal involvement and early initiation of cannabis use
and regular use. (It is not clear whether this association is a
causal one, however.)(19)
Rural/Metropolitan
-
- In 1998, 49.6 per cent of people in Australian metropolitan
areas had ever used cannabis, compared to 40.8 per cent for
regional areas. Between 1988 and 1998, the rate of growth in the
number of people who had ever used cannabis was greater in
metropolitan areas, with a 5.85 per cent average increase in
metropolitan users per annum, compared to a 3.9 per cent average
increase in regional users per annum.(20)
Cannabis Supply and Distribution
The most recent data from the Australian Bureau
of Criminal Intelligence (ABCI)(21) indicates that
cannabis continues to be readily available Australia wide, and that
the domestic production and supply of cannabis was a large-scale
industry in Australia. The following dotpoints summarise some of
the key characteristics of cannabis supply and distribution in
Australia.
-
- It is estimated that in 1998, over half (51 per cent) of all
14-24 year olds had the opportunity to use cannabis (i.e. it was
offered to them or otherwise available to them though they may not
have used it), and had greater opportunity to use it than any other
illicit drug.(22) The high rates of cannabis use noted
above also reflect its high level of availability.
-
- It has been estimated that Australian cannabis users spend over
$7 billion a year on cannabis, double the per capita annual
spending on wine.(23)
-
- The ABCI reports that there is a continuing trend in the demand
for, and production, of the more tetra-hydro-cannabinol (THC)
potent hydroponically grown cannabis.(24),(25) There has
been an associated decrease in outdoor cultivation.
-
- Hydroponically grown cannabis is not only favoured by users for
its potency, it is favoured by cultivators because of the potential
for year round yields, and more easily managed crops. The greater
potential for concealment and varied location is also a major
incentive, with private residences often being rented or owned
solely for the purpose of hydroponic growing. Information on
hydroponic growing, as well as necessary equipment, is also easy to
obtain.
-
- Theft of electricity is often involved in hydroponic growing,
and state governments are beginning to cooperate with electricity
suppliers to identify such thefts.
-
- Many crops are still grown outdoors, however, and Queensland
police indicate that highly organised groups with sophisticated
business practices are becoming increasingly involved in
large-scale outdoor cultivation.
-
- There is evidence that legitimate businesses are used to
disguise cannabis cultivation and distribution, and that organised
groups such as outlaw motorcycle gangs are heavily involved in the
supply of cannabis.
-
- The use of booby traps and armed guards to protect outdoor
crops is also reported by the ABCI as common. As well as this,
there is evidence that some groups were recruiting people for
specific tasks such as crop sitting.
-
- Cannabis is also distributed in Australia through a variety of
means including mail, cars, trucks and aeroplanes.
-
- The ABCI reports that South Australia is the source of large
quantities of cannabis for other jurisdictions, and it is often
distributed through long haul transport.
-
- Given the widespread use of cannabis, and the fact that it is
illegal in all Australian jurisdictions, cannabis offence rates are
very high (accounting for 67 per cent of all drug related offences
in Australia in 1999-2000).
-
- Cannabis offences are mostly concentrated in the 15-29 age
group (with the highest rate being among 15-19 year
olds).(26) The offences are predominantly for
consumption, rather than supply of cannabis, and although few
result in custodial sentences, a great many result in criminal
convictions. Offences, however, have declined from 80 000
Australia wide in 1995-96 to 56 000 in 1999-2000.
-
- In 1995, it was estimated that 13 per cent of all criminal
justice and police resources were devoted to detecting and
processing cannabis offences.(27)
-
- The rate at which civil infringement notices are issued is
comparatively high in the three Australian jurisdictions that have
adopted a system of civil penalties. However, the rate of issue has
declined in the ACT and South Australia between 1995-96 and
1999-2000, while it has doubled in the Northern Territory.
The Legislative Response to Cannabis
in Australia
The Possible
Legislative Approaches to Cannabis
There are a number of possible legislative
approaches to cannabis. According to a widely cited taxonomy
developed by David McDonald et al.,(28) most of the
possible approaches are versions of prohibitionism, where
cannabis related activities (possession, use and supply) are
legislatively prohibited, and are thereby made illegal.
-
- Prohibitionism with criminal penalties(29)
counts cannabis related activities as criminal activities, and in
line with their criminality they can attract serious penalties
(such as major fines, or incarceration).
-
- Prohibitionism with civil penalties still treats
cannabis related activities as prohibited by law (illegal), but
applies less serious 'civil' penalties such as minor fines or other
forms of expiation (i.e. ways of discharging an obligation or
penalty, which can include payment of fines, but also community
work, for instance).
-
- A system based on nominal prohibitionism (or what
McDonald et al. call legislative prohibitionism with an
expediency principle) treats cannabis related activities as
prohibited in law, but in practice the law is not
enforced, pursued, or administered when it comes to certain of
those nominally prohibited offences. (In the Netherlands and
Denmark, where nominal prohibitionism applies, these are possession
and use and sometimes sale of small quantities.)
-
- A partial prohibitionist approach would legislatively
prohibit some cannabis related activities (for instance, the
cultivation/supply of commercial quantities), but allow others
(like personal use, and cultivation/supply of small quantities)
without penalty.
-
- A system of regulated availability (which is arguably
a form of partial prohibitionism) would involve state control over,
or regulation of, the production and availability of cannabis.
Personal use within those regulations would not be prohibited. This
is the system that currently applies in the case of tobacco,
alcohol and licit drugs in Australia.
-
- Finally, there is the possibility of a totally
nonprohibitionist system of free or unregulated
availability, where no legislative restrictions or penalties
are applied to any cannabis related activity. In this case, the
possession, use, cultivation and supply of cannabis would be
treated as purely within the domain of personal freedom.
The Australian
States and Territories
Traditionally, it has been a matter for each
Australian state and territory to determine its own approach to
cannabis related activities, and there are differing approaches in
all of them as a result.(30) In all jurisdictions the
penalties imposed for possession of cannabis will depend on the
amount possessed. Legislation in Australian states and territories
often makes a distinction between possession of small amounts (for
personal use), possession of large amounts sufficient to create a
presumption that the cannabis is intended for selling (trafficable
quantities), and sometimes possession of even larger 'commercially
trafficable' quantities. All Australian jurisdictions prohibit
(with criminal penalties) the supplying of cannabis, or the
possession of large (trafficable) quantities.
Australian jurisdictions differ, however, in the
legislative approaches they take to the possession and use (and
cultivation) of small amounts of cannabis (presumptively for
personal use). The approaches are of two kinds-prohibitionism with
criminal penalties (Tas., Vic., NSW, WA, Qld) and prohibitionism
with civil penalties (SA, ACT, NT). Both approaches are
prohibitionist in that they legislatively prohibit cannabis
possession and supply for personal use (they are illegal), and
count them as offences that ought to be penalised. But each
jurisdiction prohibits these offences with different degrees of
coercive strength, reflected in the different types of penalty they
apply. While the former predominantly imposes potentially serious
criminal penalties, the latter mostly imposes less serious 'civil'
penalties such as minor fines or similar forms of expiation.
In the civil prohibitionist jurisdictions, the
offences attracting a civil infringement notice include
-
- possession of small amounts of cannabis plant (up to 100g in
SA, 25g in the ACT, and 50g in NT), and
-
- cultivation of cannabis plants (up to three in SA, five in the
ACT, and two in NT)
Failure to pay the fines may result in court
appearances and subsequent conviction.
The criminal prohibitionist jurisdictions have
also recently adopted 'diversionary' cautioning procedures which
allow first or second time cannabis possession/use offenders to
receive a caution or education/counselling session instead of the
normal court appearance.(31) (A more detailed
description of the legislative approaches in Australian
jurisdictions is supplied in Appendix 1. A snapshot of some
overseas approaches is also supplied as Appendix 2.)
The Role and
Activities of the Commonwealth
While legislative responses to cannabis are
primarily a state responsibility, the Commonwealth still plays some
role in this area. The Commonwealth National Drug Strategy has, for
a number of years, provided policy direction in relation to
cannabis and other drugs, as well as extensive funding for research
and program development.(32) While there is no ongoing
funding specifically tagged for cannabis related issues, many of
the programs funded through the National Drug Strategy will have
application to, or impact on, those issues (e.g. funding of general
drug treatment programs). The peak government advisory body, the
Australian National Council on Drugs, also provides policy advice
to the government.
The most recent initiative sponsored by the
Commonwealth to have impact on state legislative approaches to
cannabis, is its funding for the development of the 'Tough on
Drugs' drug diversion programs in the states and territories. In
the case of some jurisdictions (e.g. Qld), this funding has
contributed to the initiation of cannabis cautioning schemes.
Assessing Alternative Approaches to
Cannabis: Clarifying Goals and Criteria
The Primary Purpose of Drug Policy and
Legislation
Which legislative approach to cannabis is the
best or most successful? In answering this question, it is
essential to clarify what the primary or underlying goal(s) of
cannabis legislation should be, and what criteria are central to
deciding how well a legislative approach meets those goals.
There are currently two major views about the
fundamental goals of cannabis policy or legislation.(33)
The views are related, but differ importantly. The first view holds
that the aim of cannabis (and all drug) policy and legislation is
to reduce or minimise the use of cannabis. With this view,
the more that some legislative approach reduces the overall usage
of cannabis, the more successful it is, or the more preferred it
will be to another approach that reduces its use less. The second,
and increasingly favoured, view is that cannabis legislation is
successful when it reduces or minimises the overall harms
associated with cannabis, (even when this does not necessarily
result in a reduction in cannabis use). The more cannabis related
harm that is reduced by a legislative approach, the better it will
be on this view. Harm reduction does not completely ignore the
question of cannabis use. It targets harmful or risky
cannabis use, and seeks to reduce this, and the harms arising from
it.
Harm reduction has been Australia's official
policy toward drug use since 1985. There are good reasons to favour
it over use reduction as the truly basic goal of cannabis
legislation and policy. Clearly, when deciding whether drug use is
a good or bad thing, it is the harms associated with drug use,
rather than the mere use itself, that seem to be the important
consideration. Drug use, if it is problematic or objectionable,
seems to be so because of its consequences-the harms it produces or
has the capacity to produce. If drug use had no harmful
consequences at all, the use of drugs would not be a concern. This
strongly suggests that if reducing drug use is desirable, it is
only desirable in a secondary and dependent sense, because it
sometimes serves the more fundamental goal of reducing
harm.(34)
If the primary goal of sound cannabis
legislation is to reduce cannabis related harm, then a system of
legislation that reduces these harms to a greater degree will be
preferable to ones that reduce them to a lesser degree (or not at
all). This principle of harm minimisation will be taken here as the
ultimate desiderata when comparing the success of differing
approaches to cannabis. In order for such a comparison to be
accurate, it will need to take into account the full and
comprehensive array of harms associated with cannabis, including
the harms and social costs that are inevitably involved in
controlling or regulating cannabis. No approach to cannabis control
or regulation will be completely harm free or cost free. Different
systems will involve different degrees of intrinsic cost (e.g. time
and resources in administering and enforcing the regime) as well as
differing possible harmful or costly consequences or side effects.
In a sense, a harm minimisation principle will require alternative
forms of cannabis legislation to be assessed on a cost-benefit
basis. This process of assessment requires a clear picture of what
the potential harms, costs and benefits are in the equation, and
the following few sections give an indication of these.
Potential Harms, Costs and Health
Benefits of Cannabis
Like any other mind-altering drug, cannabis use
involves potential harms, costs and benefits. Just what these
harms, costs and benefits are, and the degree to which they are so,
will depend very much on the context and circumstances surrounding
the cannabis use. This will include factors such as who is using
the cannabis and how frequently, how the cannabis was acquired, and
also what the legal consequences are of using it. In view of all
this, the following will outline cannabis related harms and
benefits under the headings of cannabis use, cannabis supply and
cannabis control.
Harms of
Cannabis Use
Physical and Cognitive/Psychological
Harms
There are physical and cognitive/psychological
consequences of cannabis use that can occur immediately after use
(acute effects), or as a result of long-term use (chronic
effects).
The immediate effects, which generally do not
persist after intoxication,(35) can include:
-
- Short-term impairment of psychomotor coordination
and reaction time. The degree to which these effects
are harmful will depend on context. In themselves they may merely
count as an inconvenience, but when driving or operating dangerous
machinery, they may carry the strong risk of very serious harm
(especially in conjunction with alcohol, seeing that the effects
are additive in conjunction with other nervous system
depressants).
-
- Short-term deterioration of attention and
memory.(36) These effects
manifest in performing complex tasks requiring divided attention
(such as driving and operating machinery).
-
- Distorted temporal and spatial
perception. Time is perceived as going
faster than actual clock time, and perceptions of distance and
depth are affected.(37)
-
- Mood changes. (These are dose
dependent) feelings of panic, anxiety and mild paranoia,
particularly with novice users.(38)
-
- Increased risk of experiencing psychotic symptoms
(while intoxicated) among vulnerable
individuals.(39) Short-lived symptoms
include the likes of hearing voices, having unwarranted feelings of
persecution, feelings of depersonalisation.(40)
The potential physical and
cognitive/psychological effects of long-term regular cannabis use
are not just experienced while intoxicated, but can persist as
risks or conditions after long-term use. These effects can
include:
-
- Susceptibility to respiratory disorders and
cancers. These include chronic bronchitis and
emphysema, and an increased chance of cancer of the mouth,
oesophagus, and certain forms of pharyngeal cancer.(41)
The tar from a cannabis cigarette contains all the constituents of
tobacco smoke (with the exception of nicotine).(42)
-
- Subtle cognitive impairment. This
includes impairment of memory, attention, and capacities to
organise and integrate complex information.(43) The
longer cannabis has been used, the more pronounced the impairment.
These impairments are low-level and it is not clear as to the
extent to which they affect normal daily functioning, or whether
the impairments would desist after an extended period of
abstinence.(44)
-
- Possible risk factor for mental
illness. It was noted above that people can
experience (short-lived) psychotic symptoms while intoxicated from
cannabis. It has also been hypothesised that cannabis use may be
linked with the onset or exacerbation of an ongoing psychotic
syndrome or condition in vulnerable individuals.
Though there is some evidence to support this, the relationship
between cannabis use and chronic psychotic disorders is complex and
subject to qualification and ongoing theoretical
debate.(45)
In this theoretical debate, three distinct
hypotheses can be discerned as follows (from stronger to
weaker):(46)
-
- that heavy cannabis use may cause a specific 'cannabis
psychosis', a psychosis which would not have occurred except
through cannabis use, and which will remit when cannabis use
ceases
-
- that heavy cannabis use is one among a number of possible
factors (like genetic disposition), that can bring about an episode
or condition of schizophrenia, which may or may not persist after
abstaining from regular or ongoing use, and
-
- that cannabis use can worsen or exacerbate symptoms in those
who have a schizophrenic disorder.
Recent extensive reviews of the existing
evidence(47) argue that the third of these hypotheses is
the most supported-that cannabis use makes worse the symptoms of
schizophrenia in those individuals already affected by the
condition. This is supported by controlled retrospective and
prospective studies.(48) There are physiological as well
as behavioural reasons to support this. The active component of
cannabis (THC) increases the release of the neurotransmitter
dopamine in the brain, and it is known that variations in dopamine
levels affect psychotic symptoms.(49) It may also be
that cannabis use/intoxication may reduce people's compliance in
taking prescribed medication, or clinical attendance.
With respect to the second hypothesis, it is
likely that cannabis use can induce the onset of a psychotic
condition in those who are vulnerable to psychosis (and who would
probably develop it anyway).(50) However, there are
still important residual questions about the 'causal direction' in
the association between cannabis use and onset of psychosis in
vulnerable individuals. Rather than the cannabis use causally
inducing their psychosis, it may be that such use is an attempt to
'self-medicate', and reduce certain of the symptoms of a psychotic
condition which has already developed independently (e.g.
depression).(51) One recent Melbourne study of 193 young
people who had experienced psychotic episodes indicated that more
than 50 per cent of them were unable to quit using cannabis even
after serious psychotic episodes.(52)
With the first hypothesis, there does not appear
to be compelling evidence that there is a distinct 'cannabis
psychosis' condition or syndrome which would not occur other than
from heavy cannabis use.(53) It should be noted also,
that alcohol abuse is a stronger predictor of psychotic symptoms
than regular cannabis use (by a factor of four).(54)
-
- Immunity and Reproductive effects.
There have been suggestions in the literature that chronic cannabis
use can affect immunity and decrease resistance to
infection.(55) The evidence for this, however, is
inconclusive, and based on studies of the effects of very large
doses of THC on animals. The situation is similar with studies
indicating that THC can have reduce fertility.(56) The
evidence that cannabis use in human pregnancy can decrease birth
weight, is slightly stronger.(57) There is also evidence
that being exposed in utero to cannabis results in
deficits in attention, memory and higher cognitive functioning
during infancy and early years.(58) It should be noted
that the effects of cannabis are small compared to those of
maternal tobacco use.(59)
-
- Development of Cannabis Dependence
Syndrome. There is emerging evidence that some users
can become dependent on cannabis in the sense that they are unable
to reduce or adjust their use even when they recognise it as having
undesirable impacts on their lives. The distinctive harm associated
with dependence (above and beyond the other potential harms
mentioned here) is the fact that one's use comes to interfere with
the enjoyment of opportunities, or the undertaking of
responsibilities. It is not entirely clear whether cannabis
dependence is psychological, or one which has a pharmacological
basis (or a combination of both). However, there is some evidence
of 'withdrawal' symptoms associated with abrupt cessation of heavy
cannabis use,(60) and also evidence that the active
chemical agents in cannabis act on the same neurological reward
systems as alcohol, cocaine and opioids.(61) It has been
estimated that, in the USA, one in ten of those who ever use
cannabis exhibit symptoms of dependence at some time in their four
or five years of heaviest use. (This is a similar rate for alcohol
dependence, but less than for nicotine or opiate
dependence).(62) In Australia, an estimated two per cent
of adults exhibited symptoms of cannabis dependence in
1998.(63) Those who use cannabis daily over periods of
weeks to months are most at risk.(64)
-
- 'Amotivational Syndrome'. It is
sometimes thought that heavy cannabis use can result in lethargy,
an unwillingness to work, a general loss of interest and a desire
to 'opt out '.(65) The empirical evidence for what has
been called an amotivational syndrome has largely come
from uncontrolled studies of long-term cannabis users in various
cultures, and it is not clear what credibility they
have.(66) It is true that a proportion of cannabis users
are unemployed (in 1995, 23 per cent of Australians recently using
cannabis).(67) However, these 'amotivational' symptoms
may be nothing more than mere manifestations of being intoxicated,
or else a reflection of the fact that frequent cannabis use can
itself be a concomitant of unemployment, or a pre-existing
dissatisfaction with one's life or social circumstances.
-
- Effects on school performance.
Similar things can be said of the observed
association(68) between heavy cannabis use during
adolescence and early exit from secondary schooling and job
instability in young adulthood. When this association is examined
more closely, it turns out that young heavy cannabis users had poor
school performance compared to their peers before they used
cannabis.(69) There have been some studies, however,
that do show an association between early cannabis use and the
likes of unplanned parenthood, unemployment, and leaving home
early.(70) It should be recognised, nevertheless, that
there may be no simple cause and effect relationship between early
heavy cannabis use and these behaviours.(71) It is also
important to recognise in this context that many adolescents who
merely experiment with cannabis still do well at
school.(72)
-
- A Gateway Effect. It is commonly
believed that cannabis is a 'gateway' drug in the sense that it
leads to the use of more harmful illicit drugs like heroin, cocaine
and amphetamines. The belief that cannabis use leads to harder
drugs has its source in the observation that nearly all those who
use harder drugs have used cannabis first.(73) However,
while the evidence of a correlation is strong, it is generally
agreed that the 'causal gateway' interpretation of the evidence is
faulty. Such an interpretation is falsified by the fact that even
though the great majority of harder drug users used cannabis first,
the great majority of cannabis users(74) do not go on to
use harder illicit drugs.(75) A causal relationship
would suggest that (at least) most of those who use cannabis would
go on to use other illicits.
This is not to deny that there is a correlation
between cannabis and harder drug use, and that the former can act
as a (weak) predictor of the latter. Compared to those who do not
use cannabis, cannabis users are definitely more likely to use
harder drugs.(76) However, commentators are increasingly
coming to view this correlation in terms of the operation of
certain background factors that are common to both (some) heavy
cannabis users and harder drug users. There is still question as to
exactly what the factors might be. However, after an analysis of
the existing evidence and argument, Lenton et al. observe that
heavy cannabis use and the use of other illicit drugs may be
related to a similar set of complex underlying socio-demographic
and personality variables. They conclude that the gateway
correlation is most likely due to either:(77)
-
- heavy cannabis users and users of hard drugs sharing underlying
characteristics (e.g. rebelliousness, stimulus seeking, poor
economic prospects, etc.); and/or
- heavy cannabis users' frequent involvement in the cannabis
market exposing them to many opportunities to use other drugs (the
'overlapping drug markets' or 'drug-subculture' hypothesis).
Lenton et al. note that the latter hypothesis
has been empirically tested and partially verified. In a sample of
New York State high school students, it was found that cannabis
users who did not become involved in the illicit market were no
more likely to begin using other illicit drugs than non-cannabis
users.(78) The overlapping markets hypothesis also
appears to be given some support by the observation that the more
frequent the cannabis use (and so, the more frequent the exposure
to drug sellers), the more likely one is to come to use other
illicit drugs.(79) With this said, Hall notes that there
are still studies suggesting that heavy cannabis use in
adolescence predicts an increased risk of harder drug use, where
this is not due to background factors such as those of (i) and (ii)
above.(80)
Physical and Cognitive/Psychological
Benefits of Cannabis Use
If cannabis were not perceived to have
beneficial effects it would not be used. Many people who use
cannabis, use it because of its relaxant and euphoric effects, and
in some cases because of the belief that it facilitates social
interaction. Historically, cannabis has also been used for
medicinal purposes in various parts of the world. There is now an
emerging body of scientific evidence that some of the active
components of cannabis can have therapeutic effects.(81)
A recent review of the evidence(82) has collated the
following beneficial actions of active components in cannabis:
-
- Suppression of nausea and vomiting
(particularly in cancer patients). Often patients are reluctant to
undergo chemotherapy because of the nausea involved, and THC has
been shown to be effective in reducing nausea.(83)
-
- Muscular relaxant. Muscle spasms and
spasticity associated with multiple sclerosis has been shown to be
reduced by doses of THC.
-
- Appetite stimulant for cancer and AIDS
patients. There is evidence that THC is effective in
appetite improvement and slowing of weight loss in cancer
patients.
-
- Pain relief. THC has been shown to
have analgesic effects.
-
- Glaucoma treatment. There is evidence
that THC and other cannabis compounds can reduce the intra-ocular
pressure symptoms associated with glaucoma.
-
- Treatment of insomnia, anxiety and
depression. There is evidence from some studies that
THC in the form of Nabilone can produce significant improvements in
patients experiencing anxiety. Preliminary data also suggest that
the active component in cannabis may be an effective hypnotic to
reduce insomnia. THC has also been observed to have anti-depressant
effects in cancer patients and others.
-
- Anticonvulsant. There is evidence
(though not conclusive) that THC can reduce the rate of seizures
associated with epilepsy.
A number of government reports have recently
been completed on the issue of the medical use of cannabis,
including the following:
-
- In the UK in 1998, a Select Committee of the House of Lords
recommended that cannabis should remain a controlled drug, but that
the law should be changed to allow doctors to prescribe an
appropriate preparation of cannabis if they saw fit.
-
- More recently, in March 2001, it was reported that the House of
Lords Select Committee on Science and Technology considered it
undesirable that genuine therapeutic users of cannabis who possess
or grow it for their own use should be
prosecuted.(84)
-
- A recent report commissioned by the NSW
government(85) recommended the introduction in NSW of a
compassionate regime to assist those suffering from a specified
range of illnesses to gain the benefits associated with the use of
cannabis without facing criminal sanctions. It also recommended
further clinical trials and surveys. The NSW Premier Bob Carr has
given strong indication that clinical trials will be
conducted.(86)
-
- The recent report of the Victorian Drug Policy Expert Committee
recommended that Victoria Police and the courts use their
discretion when dealing with people using cannabis to manage
symptoms of serious, debilitating and often terminal conditions for
which there are indications of therapeutic
effect.(87)
Harms
Associated with the Acquiring of Cannabis
There are different ways in which users can
acquire their cannabis, or in which others can supply it to them.
Users can acquire it through organised networks involved in large
scale cultivation and supply. They can also acquire small amounts
through peers and friends who grow their own. And individuals can
grow cannabis themselves for their own use. There will be different
levels of potential risk, costs and harms associated with these for
the user as well as for third parties. The most serious costs and
harms are associated with the organised large-scale production and
supply of cannabis, the currently dominant source of cannabis in
Australia.(88) Lenton et al. have noted the following
risks and costs associated with large scale supply:
-
- Associated criminal activity.
Large-scale production and supply of cannabis often involves
organised profit driven criminal distribution networks. The sums of
money involved in large-scale production also involve a high risk
of other criminal activities such as money laundering, violence,
and corruption of officials
-
- Risk to users of further criminal
involvement. Organised criminal distribution networks
are a potential harm to individual cannabis users who directly
access the networks to acquire their drugs and become exposed to
the risk of further criminal involvement
themselves.(89)
-
- Opportunity for harder drug use provided by
overlapping markets. There is evidence that cannabis
users acquiring their cannabis from the existing large scale
illicit drug market become exposed to other more harmful illicit
drugs. Lenton et al. argue that large-scale profit driven drug
markets involve cannabis users in distribution networks where there
is opportunity to use a variety of other illicit drugs. They cite a
number of studies in relation to this. For example:
-
-
- A 1993 study of drug dealers indicated that cannabis buyers
might be willing or persuaded to buy cheap injectable amphetamines
from them if cannabis turned out to be unavailable or
expensive.(90)
-
- A 1998 survey of 55 cannabis users found that 43 per cent of
them had purchased their cannabis from suppliers who also offered
them another illicit drug.(91)
-
- A 1999 study of 51 first time minor cannabis offenders found
that nearly half who had bought cannabis in the last 12 months had
been offered (or asked for) other drugs in that
period.(92)
The phenomenon of overlapping markets involves
the considerable risk of serious harm to cannabis users, who are
predominantly young, occasional users who might not otherwise
dabble with more dangerous substances.
Compared to large-scale provision, self-supply
and low-level acquisition (acquiring small amounts from friends who
grow their own) can be argued to involve fewer of these harms
(legal consequences aside, which will be discussed
shortly).(93) With self-supply, the immediate concern is
probably the costs to the grower in terms of initial equipment
outlays, labour and time in maintaining plants as well as efforts
at concealment. There is also the risk of failure of plants to grow
or survive, or to properly develop heads (the most THC-active
parts).(94) In this event, the potential harm of crop
failure is not so much the added cost of having to re-grow, but the
possibility that the grower will resort to the established
large-scale market to acquire cannabis.(95)
Harms and Costs
Associated with Controlling Cannabis Use and
Supply
As was said, not only will cannabis use and
supply involve potential harms, so too can the very attempts to
regulate or control cannabis use and supply. Of course the nature
and level of cost and harm will depend on the form of regulation in
question. Nonetheless, some key observations can still be made
about the prohibitionist approach that is dominant in Australia at
the moment. Again, after reviewing the evidence, Lenton et al. note
the following risks and harms of prohibitionism:
-
- Very high level of police and justice resource
expenditure. As noted, a substantial proportion of
all drug offences in Australia are cannabis related ones (nearly 70
per cent). The great bulk of these are consumer as opposed to
provider offences, and relatively few are serious enough to result
in prison sentences. The time and resources expended by police and
the courts in processing such a large proportion of offences is
considerable, particularly when the offences are minor
ones.(96) It was estimated in 1995, that 13 per cent of
all police and criminal justice resources were devoted to cannabis
offences.(97) When viewed in terms of other more serious
crimes that could have been attended to, this level of resource
expenditure on cannabis charges seems all the more serious.
-
- High resource costs of detection with very limited
impact. There are considerable costs involved in
police detection efforts and operations relating to organised
large-scale cannabis production, but there has been limited success
and minimal impact on the availability of
cannabis.(98)
-
- Personal costs of a criminal
conviction. In most Australian state jurisdictions,
there is the likelihood of a criminal conviction for cannabis
possession or use, and certainly for supply (if not for the first
or second offence, then for later ones). A 1996 study found that in
Western Australia 2-3 people per day received a criminal conviction
for merely possessing cannabis for personal use.(99) A
criminal conviction can have impacts on the lives of those
convicted, including possible difficulties with employment,
accommodation and travel to certain destinations.(100)
Eric Single makes the following observations:
Anyone with a criminal record is at a
disadvantage in subsequent criminal proceedings: a criminal
conviction may influence a police officer to lay a charge; it may
be grounds for denying bail; it can influence a crown attorney to
proceed by way of indictment rather than by summary conviction; it
may be raised to impeach the suspects credibility as a witness; and
it may result in more severe penalties as dictated by various
criminal statutes.(101)
Although Single is speaking of Canada , many of
these consequences are likely to apply in Australian jurisdictions.
These impacts are of particular concern given that a large
proportion of offenders will be quite young people who would not
otherwise have much, if any, criminal
involvement.(102)
-
- A deterrent to seeking advice and
help. It is often argued that the prohibited and
criminal status of cannabis use can act to deter people,
particularly young people, from seeking accurate information about
the harms and effects of cannabis use. The same could be said about
seeking out professional help with problematic use.
With respect to the supply of cannabis, criminal
prohibitionism can also involve potential harms:
-
- Prohibiting self-supply may continue to entrench
large-scale organised cannabis production.
If self-supply is prohibited, then this is an incentive for those
people who are determined to use cannabis (and who would not be
deterred by laws against use), to continue accessing the cannabis
black market, with its associated risks. To the individual user, it
is better that the black marketeers take the risk of serious
penalties for supply, than the individual user.
For completeness, it is worth mentioning that
there may also be benefits from controlling or regulating cannabis
use and supply as well as costs and harms. Exactly what the
benefits are, and the degree to which intended benefits are
realised, will depend on the particular form of control/regulation
in question, and what things would be like without any control at
all. Without going into the detail (just yet) of the effectiveness
of various approaches at controlling or regulating cannabis, it
would probably be safe to say that some form of control or
regulation or public management of cannabis use and supply would be
better than none. Where cannabis is freely available to anyone
under any circumstances, and there is no license for state
intervention, there is probably less chance of addressing the
potential harms of cannabis use and supply.
Putting the Harms in Perspective
The cannabis related harms listed above are
potential harms. This means they will not
necessarily arise or occur in every case for every
cannabis user or acquirer, or in every instance under a legislative
system. They have been noted in clinical and empirical studies as
outcomes of cannabis use or outcomes of modes of acquisition or
regulation that are probable (rather than matters of pure chance),
and probable enough to take note of. The harms are not all equally
probable either. Some may be more likely to occur than others.
Similarly, some types of user will be more vulnerable to some harms
than to others. Given all this, the harms listed above are best
thought of as cannabis related risks which may or may not
be realised in any particular case depending on a variety of
circumstances and contextual factors.
The evidence suggests that the
significant health related risks from cannabis use are
associated with heavy and sustained use, and early adolescent use
or initiation. Other than in these circumstances, cannabis use does
not appear to be significantly harmful to health and wellbeing
(aside from the risks associated with its legal status, of course).
It was noted earlier that in 1998, 39 per cent of Australians over
14 years of age (approximately 5.4 million people) had used
cannabis at some point in their life, and that 2.7 million had used
it in the previous 12 months. In the vast majority of these cases,
cannabis use is thought to be occasional. It was noted also that
among young people it is typically experimental and transitional,
with few becoming ongoing regular users. Approximately 96 per cent
of those who had used cannabis did not go on to use more harmful
illicit drugs. Certainly all cannabis use brings with it the
possibility of the immediate, but short-lived acute harms mentioned
earlier (and these can be significant when, say, driving a car).
But the overall level of chronic health related harms is limited,
despite the widespread prevalence of cannabis use in the
community.(103) Dependence is arguably the most
prevalent of the health related harms currently associated with
cannabis use.(104) However, while 10 per cent of those
who have ever used cannabis meet some of the criteria for
dependence, that still leaves 90 per cent of those who have ever
used who do not exhibit symptoms of dependence.
This does not mean that the harms of cannabis
use are negligible. They are certainly worthy of public policy
concern, especially when certain groups are particularly vulnerable
to risk of significant harm.
Who is Most at
Risk?
Adolescents. As was
observed earlier, cannabis users are mainly young people, and a
significant proportion of them are adolescents. Adolescents are
often more disposed to risk taking and experimentation, and tend to
be more susceptible to peer influences. They are generally also not
as socially well placed as adults to access reliable information,
or support in the context of drug use. But it is not only the harms
specifically associated with cannabis use that are a heightened
risk for adolescents. Susceptible adolescents are particularly at
risk when it comes to acquiring their cannabis from suppliers who
may also be in the business of providing other illicit drugs. As
was noted earlier as well, adolescents who are heavy cannabis users
are more at risk of using other more harmful drugs.
Adolescents who begin use early in
their adolescence. There is evidence that earlier
initiators of cannabis use are more likely to become long-term
frequent users, and with this there is increased risk of
experiencing cannabis related harms, including cannabis
dependence.(105) At least one study has also indicated
that early initiators are more likely to try other illicit
drugs.(106) As well as this, there is an observed
association between earlier initiation of cannabis use and property
offending.(107)
Adolescents involved in the criminal
justice system. These people have high rates of very
heavy cannabis use.(108)
People susceptible to mental
illness. Heavy cannabis use can bring on psychosis in
those predisposed to it, or make symptoms worse in those suffering
it. There is also evidence that those suffering a mental illness
can become dependent on cannabis use(109) (and this can
interfere with treatment or retard recovery). One-third of young
adults with psychosis are daily cannabis users.(110)
People driving or operating
machinery under the influence of cannabis. Given the
well observed perceptual and psycho-motor affects of cannabis,
those in control of vehicles or machinery are at significant risk
of seriously harming themselves or others.
Pregnant women. Heavy
cannabis use during pregnancy may affect unborn children.
It should be kept in mind with these at-risk
groups, that some individuals can fall into more than one risk
category (for instance, cannabis users who are adolescent females
with a mental illness who are at risk of pregnancy).
How Should Alternatives be Compared?
The overview of cannabis related harms and
benefits just presented gives some indication of what, at
bottom, needs to be compared when assessing alternative approaches
to cannabis. But there is still a further, closely related question
about how a comparative assessment like this is to best
proceed. Simply listing or collating all the harms reduced by each
legislative approach would be cumbersome and unorganised. Besides
this, legislative approaches to cannabis need to be compared not
just in terms of their observed impact, but also sometimes in terms
of their probable or potential impact on cannabis related harms.
Given this, it makes sense to go about comparing legislative
responses in terms of their general capacities to reduce
harm. In other words, in terms of how well they exemplify or
reflect certain hallmarks of harm reduction-legislative properties
that arguably facilitate and maximise the reduction of cannabis
related harm. By proceeding in this way, potential as well as
observed impacts can be taken into account. It will also make for a
more organised and informative comparison.
Key Criteria
for Comparing Alternatives
The central aim of cannabis legislation is not
merely to reduce harm, but to reduce it as much as possible in the
circumstances. Arguably, there are certain characteristics that a
system of legislation can have that serve to enhance its capacity
to minimise harm. The more strongly those properties are exhibited
in the legislative approach, the more successful it is likely to be
in minimising harm. These hallmarks of harm minimisation can thus
act as criteria for critically comparing different approaches to
cannabis.(111)
Rational targeting of harm.
This first hallmark of harm minimisation relates to the aims and
objectives of a legislative approach, and the types of cannabis
activities (e.g. possessing, using, acquiring, cultivating,
supplying cannabis, etc.) that it should disallow or aim to deter
(or otherwise regulate). Harm minimising cannabis legislation will
target cannabis related harm. It will disallow only cannabis
activities that are (sufficiently) harmful or risky, but not
disallow those that are harmless (or involve only a very low
risk).(112) The focus on harm is paramount. There is no
compulsion to reduce or restrict instances or types of cannabis
activity that do not involve imminent or deferred harm (of a
sufficient degree). Harm targeted cannabis legislation, in other
words, will be selective and tolerant in the cannabis activities
that it seeks to regulates. This will apply not just to types of
cannabis use that are low risk, but also types of cannabis
production and supply that are (near) harmless (if there are
any).(113)
Well targeted cannabis legislation will be
rational in its targeting, too. Clearly, the harms it seeks to
deter need to be sufficiently serious (either in each individual
case, or in their collective impact). But it would not seek to
restrict a cannabis activity simply because there may be
some probability of it being harmful. Simply saying that
the cannabis activity can be harmful, is not enough, no
matter how serious the potential harm. The harm needs to be a
typical or expectable consequence of that type of
activity-there needs to be a significant probability that the harm
will, in fact, arise. It may be that, even when a cannabis activity
can result in a serious harm, the expected incidence of that harm
may be so low, or confined to such specific circumstances, that it
may be just not justified to restrict the entire type of
activity.(114) Rationally targeting will be responsive
to both the seriousness and the likelihood of harm. So, harm
minimising cannabis legislation will seek to come as close as
possible to capturing all and only those cannabis activities that
are likely to involve sufficiently serious harm. The closer a
legislative approach comes to this, and the more sensitive it is in
its targeting, the more preferred it will be from the point of view
of harm minimisation.
Comprehensiveness. The
procedures and interventions that surround legislation-the
enforcement and the administration of the law-can also
significantly contribute to its harm reducing
capacity.(115) Written legislation is sometimes a blunt
instrument for targeting harms, especially when the harms are
variable and contextual. Law enforcement interventions and judicial
decisions usually relate to particular cases of cannabis activity.
They can, therefore, be more sensitive and attuned to the nature
and probability of the potential harms involved, and can respond
accordingly. Police, for example, are in a good position to
exercise discretion(116) in judging how to deal with an
encounter, or whether to proceed with it, in the light of the harm
involved.(117) Similarly, the more that discretion in
sentencing can be exercised by the judiciary, the more opportunity
there is to match consequences to the actual harm of the offence
(as per proportionality, discussed later).
Law enforcement interventions and judicial
decisions can also provide opportunities for demand
reduction and secondary prevention, opportunities
that might not otherwise be available. For example, police have the
capacity to provide information to offenders, or to direct them to
drug education or counselling or maybe even treatment-all with the
aim of reducing their inclination to further engage in harmful
cannabis use or modes of acquisition or supply.(118)
Similarly with sentencing. There are opportunities for judges and
magistrates, when imposing consequences for offences, to require
offenders to undertake similar demand reducing activities,
including drug treatment, or life skills training or employment
tasks. The greater the opportunities a system of legislation
provides for demand reduction and discretionary targeting of harm,
and the more fully and comprehensively their potential is used, the
greater its capacity to reduce harm.
Efficient harm reduction. It
was pointed out earlier that the very process of attempting to
reduce cannabis related harms will involve costs, and these costs
can themselves be counted as harms. It is central to harm
minimisation that as much harm as possible is reduced with the
least possible created. This means that a good legislative approach
to cannabis needs to be efficient at two points-at the point of
resource expenditure and at the point of emergent outcomes.
Consider the first. There would be something troubling about a
legislative approach to cannabis if the resource costs (e.g. time,
labour and material) of enforcing and administering it
significantly exceeded the benefits it produced,(119) or
if an alternative approach produced the same or greater benefits
with fewer resource costs. It seems desirable that the costs of
enforcing and administering a system of cannabis legislation should
be as low as possible for the harms it reduces, and certainly
should not outweigh or exceed the harms reduced. On a goal of harm
minimisation, approaches that reduce the most harm with the least
resource cost will be preferred.(120)
The second point of efficiency relates to the
harmful or risk producing outcomes or side effects that a system of
drug legislation can sometimes unintentionally have. To take an
example relating to injecting drug use, laws prohibiting possession
of injecting equipment, though intended to deter injecting drug
use, can also provide a disincentive for injectors to use needle
syringe exchanges (which require them to carry their used and new
injecting equipment). A great public health risk is thereby
perpetuated. Similarly, a system of cannabis legislation and
enforcement may unforeseeably (or even predictably) affect the
pattern and prevalence of cannabis use and acquisition, and this
may result in changes in the level and distribution of harms.
Severely reducing the availability of cannabis in some area, for
instance, may result in some people shifting to the use of other
more harmful drugs such as amphetamines. Clearly, a legislative
approach to cannabis should avoid such harmful side effects and
'perverse incentives' as much as possible, and not cause more harm
than it reduces. Harm minimisation will prefer approaches that are
the most outcome efficient and reduce the most harm with the least
degree of harmful side effects.(121)
Effective (and pragmatic) harm
reduction. An approach to cannabis not only needs to aim
for the right outcomes (as per targeting), there needs to be a
sound expectation of it being reasonably successful in achieving
them. The more effective an approach is in achieving the particular
objectives it sets for itself in reducing cannabis harm, the better
(other things being equal). But this is not the end of the story.
Certain outcomes may ideally be good to produce, and a
system of cannabis legislation may design itself to produce them,
but it may turn out in reality that there is little chance of it
being effective.(122) Many believe, for example, that
the complete elimination of potentially harmful drug use and supply
is such an outcome, and that regardless of our efforts, there will
always be those who continue to use drugs and those who will
continue to supply them. A legislative approach to cannabis that
aims too high in its attempts at harm reduction, and is
ineffective, will be less preferable to an approach that seeks more
modest or qualified harm reduction outcomes but is more successful
in achieving them.(123)
Integrated and consistent harm
reduction. If cannabis related harms are to be reduced as
much as possible, it is important that there be consistency and
coordination of legislative approaches between Australian
jurisdictions. It is pointless having a harm reducing approach in
one Australian jurisdiction if it is undermined by the outcomes and
side effects of the less harm reducing approaches in other
geographically adjacent jurisdictions, where people can freely and
easily come in and out. Within a federation of state jurisdictions
with open geographical boundaries and easy transport, such as in
Australia, it important that legislative approaches to cannabis be
as coordinated as possible to minimise counter productive
effects.
The capacity an approach has to reduce harm can
also be held back if it is does not respond in a consistent way to
the interrelationships between different types of cannabis
activities. For example, using cannabis and acquiring it are
clearly interrelated activities. If a legislative approach makes
provision for cannabis use in some way, it also needs to address
the issue of how this use is to be acceptably
supplied.(124) There also needs to be harm sensitive
legislative consistency in relation to drugs other than cannabis,
including licit ones. The deterrent force of laws relating to
cannabis are very likely to be influenced by the laws and legal
attitudes to other drugs such as tobacco and alcohol.
Proportionality in penalties.
When a legislative approach specifies penalties for engaging in
certain cannabis activities, the 'cost' or burden to the offender
of the imposed penalties should be proportionate to the harms
caused by, or inherent to, the offence (whilst also factoring in
the need for a deterrent effect). The point of this is to prevent
the seriousness of the penalties being manifestly out of step with
the harmfulness of the offence, through being too severe or too
lenient.
Limitations of
Comparison and Provisos
The task at hand now is to assess the different
approaches to cannabis in terms of how well they reflect these six
hallmarks of harm minimisation. To do this, we need to identify the
relevant social impacts of the different approaches, and to
sensibly compare these with alternatives (both actual and
possible). This process is far from an exact science, however.
Often the impacts to be compared will merely be postulated or
probable ones based on extrapolations or other arguments. And even
when the impacts in question are concrete and observable, there may
still be questions about how they should be interpreted.
Consequently, expectations about the outcomes of broad social
comparisons such as these need to be qualified and tempered with a
degree of caution. The following indicates some of the major
methodological limitations that can apply when comparing
alternative legislative approaches to cannabis.
The question of causal
attribution. The critical comparisons being conducted here
assume that the specific impacts of legislation on cannabis harms
can be incontrovertibly isolated and retraced. The truth, however,
is that the nature and prevalence of cannabis related harms in
society at any one time is influenced by a number of interrelated
social factors, legislative conditions being only one among them.
Socioeconomic, cultural, and individual or personal factors can all
play a causal role. There will always be difficulty in sufficiently
disentangling the various influences of these factors to be in a
position to unequivocally attribute a particular state of drug
related harms in society to a particular cause.(125)
The availability of limited and
non-uniform data. Not all jurisdictions that might be
usefully compared keep all of the data that might be pertinent to
such comparisons. Where they do, it is not always readily available
in a form suitable for comparison. For instance, not all Australian
jurisdictions keep information on treatment episodes where cannabis
is the drug of primary concern, or information about the resource
costs of processing cannabis offenders. And with data that does
exist in a jurisdiction, it is not always centrally located or
easily accessible (as with law enforcement data, sometimes). Its
collection is not always centrally coordinated, or collected and
processed in a way that is uniform between jurisdictions. Given all
this, the aim can only be to make comparisons where the available
data allows them to be soundly made. Unfortunately, this may not
give as full a picture as might ideally be desired.
The commensurability of the harms being
compared. If different legislative approaches are to be
assessed as to their capacity to reduce cannabis related harm, it
must be possible to plausibly judge that a particular sort of risk
or harm has the same or different weight or importance or urgency
as another sort of risk or harm. In many cases those judgements can
plausibly be made and defended. For instance, few would disagree
that being at high risk of a psychotic episode is more serious than
being slightly disoriented from cannabis intoxication. But there
are other comparisons which are not as easily made. Which is worse,
for instance, the risk of permanent subtle cognitive impairment or
the risk of further criminal involvement through exposure to black
market drug suppliers? Even when no particular harms are in mind,
which has greater weight, the small probability of a very great
harm, or a great probability of a modest harm? Which legislative
approach should be preferred, one that reduces the former risk or
the latter?(126) To compound these questions, it is even
possible that different stakeholders in the issue of cannabis
regulation might sometimes assign different weights to different
harms.(127),(128)
The upshot of these three methodological
limitations is that comparing alternatives may not always be
straightforward, and the conclusions that arise ought not to be
thought of as the incontrovertible conclusions of watertight
arguments-proven beyond reasonable doubt, as it were. They should
be viewed more as emerging on the balance of probabilities, in the
context of the limited available evidence and the best arguments
that can be framed from it. The comparative overview to follow is
presented with this in mind.
Australian Approaches to
Cannabis Compared
The rest of this paper will set about providing
a critical overview of Australian approaches to cannabis by
comparing their respective capacities to minimise harm. The two
types of legislative approach currently operating in
Australia-prohibition with predominantly criminal penalties (NSW,
Qld, Tas., Vic., WA) and prohibition with civil penalties (ACT, SA,
NT)-will be compared in terms of how strongly each exhibits or
reflects the hallmarks of harm minimisation identified above. To
determining how strongly each reflects those hallmarks, account
will be taken of the available data and evidence, including
observed outcomes, probable or projected impacts, and other
considerations and arguments when they are relevant. This will
hopefully leave us in a position to decide which of the two types
of approach appears preferable overall.
Prohibitionism in Australia:
Criminal versus Civil Penalties
Distinctions are usually made in Australian
state legislations between offences of possession of small amounts
of cannabis for personal use, possession of larger quantities,
possession of commercially trafficable quantities, and cultivation,
supply and trafficking offences. These are the broad sorts of
activities that prohibitionist legislation in Australian
jurisdictions prohibits and penalises. There are differences
between civil prohibitionist jurisdictions and criminal
prohibitionist jurisdictions in the penalties they impose, and how
they class some activities as offences. In what follows, each of
the hallmarks of harm minimisation will be taken in turn and the
two legislative approaches compared with respect to it.
Targeting of
Harm
Criminal prohibitionism. Criminal
prohibitionist cannabis legislation in Australia targets all forms
of cannabis possession, use, cultivation and supply. All instances
of these types of activities are disallowed. How accurately does
this sort of legislation target harm? Taking cannabis possession
and use first, because criminal prohibitionism seeks a blanket
prohibition, it certainly aims to deter all those cases of
possession and use that are likely to involve significant harm. But
there are reasons to think it casts the net too widely, and fails
to confine its deterrent aims as close as possible to only
those cases that involve a significant risk of harm. It was
observed in an earlier section (pp. 9-13) that, for the most part,
cannabis use is not a significantly harmful activity (legal
consequences aside). Certainly all cannabis use brings with it the
possibility of the immediate, but short-lived, harms mentioned
earlier. And clearly, in some contexts like operating vehicles or
machinery, cannabis intoxication is a serious risk. However, the
chronic health related harms and risks that have been associated
with cannabis use are largely associated with heavy, sustained use,
or in some cases, early age initiation of use.
In view of this it would seem that in a notable
proportion of cases of cannabis use, blanket prohibition
over-targets. It seeks to prohibit and intervene in cases where a
goal of harm minimisation would be tolerant. (And to the extent
that possession of a small amount of cannabis can be taken as an
indication of occasional use, a case could be put that there is
some over-targeting in the blanket ban on possession, too.)
It might be replied here that even though
occasional or experimental use is not particularly harmful, it
still involves a risk of harm, albeit small, that it might lead to
heavier use-and this risk justifies a blanket prohibition. It is
better to make sure that people do not use cannabis at all, and are
never exposed to that risk, by seeking to deter all cases
of possession and use. So, it could be continued, blanket
prohibition does accurately target harm to the extent that it
targets use that carries a risk of harm. On top of this, targeting
all use has the extra benefit of sending a message that there are
risks. If some types or occasions of use were freely allowed, this
would send the wrong message, particularly to young people, and
would completely undermine the deterrent force of the law.
It is not clear, though, that this sort of
argument is convincing. The probability that any one occasion of
cannabis use will result in sufficiently serious health related
harm (either immediately or later) would be very small. The only
risks and probabilities that are arguably worth heeding are those
associated with heavy use, or with specific circumstances (like use
of machinery), or at-risk groups. It is not just any possible risk
of harm in an activity that warrants a legislative response to it.
The risk needs to be serious enough. Claims about sending the wrong
message are questionable as well. But they are best examined under
the heading of effectiveness, and will be taken up shortly.
What about the blanket prohibition on cannabis
cultivation and supply? Whether this targets harm well or not
depends on whether all or most or enough cases of cultivation and
supply involve a sufficient risk of harm. It can be argued that
there are two possible 'sources' of the harms associated with
cannabis cultivation and supply. At one level, cultivating and
supplying cannabis (for people's use) might be considered harmful
to the extent that using cannabis can be risky or harmful. The
observations above suggest that there is only a limited capacity to
justify a blanket targeting of cannabis cultivation and supply on
this basis. The significant risks attach mostly to heavy sustained
use. Low-level occasional use does not carry the same risk, and if
there are forms of supply and cultivation associated with
occasional use (perhaps, home-growing of small amounts for personal
use), there will be less justification for prohibiting them.
But there are also other reasons, apart from the
risks with cannabis use, to view cultivation and supply as harmful
activities. The possible involvement of organised criminal
syndicates, large sums of money, money laundering, and the threat
of violence-all connected with medium to large-scale cultivation
and organised distribution-are examples. These potential harms are
certainly serious enough to warrant attention. Criminal
prohibitionism seeks to deter and intervene in these occurrences,
and to that extent it is well targeted. With this said, however,
there is significant question as to whether criminal prohibitionism
(or prohibitionism in general, for that matter) is likely to be
successful in reducing such harms. (This important issue will be
taken up later.)
So, in all, it appears that criminal
prohibitionism does not completely confine its aims to deterring
only those forms of cannabis possession, use, cultivation and
supply that hold a significant risk of harm. It correctly aims to
deter the major harms associated with the cannabis black market,
but it over-targets in other areas. This is particularly so in the
case of possession of small amounts for occasional personal use,
and perhaps even small scale home cultivation for occasional
personal use.
Civil prohibitionism. Does this
approach do any better? Civil prohibitionism and criminal
prohibitionism, while differing in the strength of penalties they
apply, are still the same in the cannabis activities that they
prohibit (and apply penalties to)-all possession, use, cultivation
and supply. They both impose a blanket prohibition and, to that
extent, civil prohibitionism targets harm pretty much along the
lines of criminal prohibitionism. There is a sense in which they
both seek to deter all cannabis related activities.
Of course, it will be rightly observed here that
targeting harm is not just a matter of which activities are aimed
at, but also the degree of strength with which they are targeted.
Assigning penalties of different severity to different activities
serves to focus different levels of deterrent force on them.
Different levels of penalty also provide different incentives and
disincentives for behaviours. From a harm reductionist point of
view, more harmful activities should be targeted with greater
deterrence (or with stronger incentives against or disincentives
for, the activities). Criminal and civil prohibitionist
legislations both apply a graduated system of maximum penalties,
presumptively in line with the relative harmfulness of the
activities penalised. Typically very severe penalties are applied
to large-scale cultivation and trafficking, and less severe to
smaller scale activities, and even less so to simple possession and
use. However, by imposing only fines for possession or use of small
quantities, the civil prohibitionist approach sets a level of
deterrence closer to the actual harm of these, by and large, low
risk activities.
Civil prohibitionism also has another important
advantage. Under criminal prohibitionism there are strong
disincentives for users to acquire their cannabis by producing it
themselves on a small scale. And for those who still want to use
cannabis, this can act as an incentive to source their cannabis
from others, including large-scale criminally organised cultivation
and distribution networks.(129) Civil prohibitionism, in
applying less serious penalties for small small-scale cultivation
weakens this incentive, and acts as an influence to 'separate' drug
markets (thereby targeting the risks associated with exposure to
organised drug networks).
Proportionality
in Penalties
Criminal prohibitionism. Is a criminal
conviction (apart from whatever monetary or custodial penalties
accompany it) a proportionate response to the harms involved in the
cannabis activities that prohibitionism prohibits? This is
different from asking whether a conviction or any other penalty is
a sufficient deterrent for an activity. A life sentence for
possession or use of cannabis, or a death penalty for any level of
cultivation, would probably have sufficient deterrent force. But
they would generally be regarded as completely disproportionate to
the seriousness of the offences involved. Although effectiveness is
crucial, proportionality is more a matter of fairness or justness
(and limits what can justifiably be imposed in the name of
deterrence or punishment).
Under criminal prohibitionism in Australian
jurisdictions, there is the possibility of a criminal conviction
for any of the cannabis activities prohibited. It was mentioned in
an earlier section that receiving a criminal conviction can have
notable impacts on people's lives and life opportunities, including
restrictions on some career opportunities and travel options, as
well as the possibility of social stigmatisation. The risks and
potential harms associated with major activities like large-scale
supply and distribution are agreed to be considerable, so most of
the attention has focused on whether a criminal conviction is
proportionate in the case of minor offences such as possession of
small amounts for personal use, or cultivation of small amounts for
that purpose.
Whether one will actually receive a criminal
conviction as a sentence for mere possession/use of cannabis, as
opposed to some other varies between Australian criminal
prohibitionist jurisdictions. Some jurisdictions convict at a
higher rate than others. Between 1993 and 1995 in Western
Australia, for instance, 99 per cent of those charged with
possession/use received a criminal conviction.(130) In
1993, two to three West Australians per day acquired a criminal
record for cannabis use or possession of small amounts for personal
use.(131) A substantial proportion of these people would
have had no previous conviction (40 per cent in
1996)(132) and many would have been first time offenders
(42 per cent in 1993).(133) In other jurisdictions,
other sentencing options may sometimes be applied which avoid
conviction, (e.g. an adjourned bond with or without conditions, in
Victoria). (There are also diversion schemes for first time
offenders which will be noted below.)
In most cases, people's use of cannabis is
experimental, occasional and involves relatively little harm to
users or others. Given this, many argue that the enduring
consequences of a criminal conviction are out of step with the
seriousness of the offence.(134) This is thought to be
particularly so seeing that experimental and occasional use is most
prevalent among young people, and that cannabis users generally
appear to be otherwise law abiding people.(135)
Civil prohibitionism. Civil
prohibitionism arguably fares better with respect to
proportionality because it applies penalties that are more
commensurate with the level of harm involved in minor cannabis
offences. A criminal conviction is not the first port of call in
the case of small scale possession, use and cultivation
offences-moderate fines being imposed instead. There is an
important qualification to this, nevertheless. Although a criminal
conviction may not be the first port of call with minor cannabis
offences, it is not always completely off the agenda, either. In
many civil prohibitionist approaches, if offenders in the end fail
to pay their fine, the matter reverts to the justice system and is
dealt with via court order. In these circumstances, the matter may
well result in a conviction being imposed after
all.(136)
Overall, however, the civil system employs
penalty options that do seem more proportionate than those of the
criminal prohibitionist approach. (Of course, in view of the
earlier discussion on targeting, it can still be argued that
applying any penalties to cannabis activities that are not
significantly harmful is always disproportionate.)
Comprehensiveness
Both criminal and civil prohibitionist
Australian jurisdictions have opportunities to enforce and
administer their cannabis legislation in potentially harm reducing
ways. Compared to those jurisdictions that apply civil penalties,
the criminal prohibitionist jurisdictions tend to employ a little
more in the way of these options. All such jurisdictions currently
employ cannabis cautioning or diversionary programs which allow
police to divert first or early offenders away from the usual
processes that may lead to a criminal conviction.(137)
Diversion also has the virtue of conserving the police and court
resources that would otherwise be expended on processing offenders.
It should be noted, though, that imposing a treatment or
counselling intervention as a condition of a cannabis caution for
first time or early offenders (as in the case of Western Australia
and Tasmania) tends to be ill-targeted in two senses. Firstly, it
defeats the purpose of conserving resources. One of the harms
targeted by diversion is the overall costs of dealing with minor
cannabis offenders. Limited counselling/treatment resources could
be better directed to those who are demonstrably in need. Secondly,
requiring treatment seems inappropriate for cannabis users who are
not demonstrably likely to develop problematic use. It targets a
harm that is not there.
Apart from enforcement initiated cautioning,
there are also formal and informal opportunities for the courts to
respond to minor cannabis offences without having to impose
criminal convictions. The reason that these diversionary options
are not so prevalent in civil prohibitionist jurisdictions is the
fact that there is already less prospect of receiving a criminal
conviction for a minor cannabis offence in these jurisdictions.
The exercise of police discretion to proceed or
not with a charge in the light of its seriousness has been a
notable feature of prohibitionist cannabis law enforcement. It also
allows police to target law enforcement efforts away from
relatively harm-free offences, or to direct at-risk offenders to
help. However, it has been suggested that this useful technique has
become less prevalent in civil prohibitionist jurisdictions such as
South Australia because it is relatively easy to give an
infringement notice.(138) It is possible that
discretionary informal cautioning will also decline in
prohibitionist jurisdictions with the broader use of formal
cautioning programs.
On the face of it, criminal prohibitionism does
apply a more comprehensive range of ostensibly harm targeted
options than civil prohibitionism, mainly in the form of diversion.
But there is substantial question as to how well and, indeed
whether, these diversionary options target harm. To the extent that
they direct early offenders away from the criminal justice process,
they are essentially compensatory. They seek to avoid the
harms/costs imposed by the criminal prohibitionist approach itself
(i.e. resource costs of processing, and personal costs of criminal
conviction), and not necessarily any cannabis related harms that
would exist independently. To the extent that diversions provide
offenders with information or education, they do reduce an already
small risk of problematic use. To the extent that they impose
treatment or counselling for early offenders (who are not
necessarily problematic users), they are arguably mis-targeting
harm (and using resources).
Police operational discretion, on the other
hand, does seem to be a potentially useful technique if it is
applied systematically, judiciously and in the light of all the
relevant information. However, as observed, it has become less
prevalent in the wake of infringement notice systems, and is
possibly under threat from formal cautioning programs. (In view of
this, it is all the more important that these formal cautioning
programs be thoroughly evaluated.)
Effective (and
Pragmatic) Harm Reduction
The effectiveness of criminal and civil
prohibitionism can be measured in terms of a range of indicators of
cannabis-related harm (or the significant risk of harm). The
underlying assumption of prohibitionism is that if all forms of
cannabis use and supply are deterred and reduced, the opportunities
for harm will be reduced too. It has been argued already that
blanket deterrence of use and supply is not a very harm targeted
objective in some respects. But keeping these observations to one
side for the moment, it is still worth comparing the relative
deterrent force of the criminal and civil approaches to
cannabis.
Reduction of use. There is quite a
natural inclination to suppose that weaker (civil) penalties will
have less deterrent force, and stronger criminal penalties more.
And that, as a consequence, the overall levels of cannabis use and
supply (and the level of harm) would be greater under a civil
approach than under a criminal one. Is this borne out by the
accumulated data on levels of use and supply in Australian and/or
overseas jurisdictions? The following points present the relevant
recent data.
-
- Between 1985 and 1995 there was a seven per cent average annual
increase in the proportion of the Australian population who had
ever used cannabis. There was a 10 per cent increase in the
proportion of the population who had ever used cannabis in South
Australia (where a civil scheme had operated since 1987). However,
Victoria and Tasmania (where criminal prohibition operates) had
similar rates of increase to South Australia.(139) This
has been taken to suggest that the increase in people trying
cannabis in South Australia was probably not due to the civil
scheme.(140)
Supplementary evidence from overseas conforms
with this.
-
- Analysis of the usage rates in the 11 states in the USA which
had adopted a system of civil penalties since 1973 indicates that
applying civil penalties did not lead to higher rates of cannabis
use.(141)
-
- Since 1937, the USA has predominantly employed and actively
enforced a criminal prohibitionist approach to cannabis possession
and use. Despite this, rates of cannabis use in the US continued to
rise, peaking in 1979,(142) then falling steadily until
1992 when there was a large increase in use up to
1996.(143)
-
- In 1986, Federal guidelines increasing the severity of drug
penalties were introduced in the US. Adolescent cannabis use
continued to decline at the same rate before and after their
introduction, until 1992, when they began to rise significantly
(still under the same guidelines).(144)
The thrust of these data trends seems to be that
applying less severe civil penalties for cannabis use does not
result in increases in the number of people who use, and applying
more severe criminal penalties does not necessarily decrease the
rate of cannabis use.
None of this is to suggest that prohibition
per se has no deterrent effect at all. A recent survey
indicated that the third most frequently endorsed reason that the
20-29 year old respondents had for never or no longer using
cannabis was the fact it was illegal.(145) But this
deterrent reason was considerably outweighed by their simple
dislike for smoking cannabis, and concerns about its health
effects. It should be noted, as well, that this study addressed the
perceived deterrent force of illegality (prohibition), and this
must be understood as also incorporating prohibition with civil
penalties. The study, therefore is of limited use for determining
the relative deterrence of civil versus criminalist approaches.
There is also evidence to suggest that criminal
penalties have only a limited deterrent effect for cannabis users
who have already been convicted.
-
- A survey of 68 West Australians who had received a conviction
for a minor cannabis offence indicated that six months after the
conviction 87 per cent had continued their use at the same rate as
before.(146)
Reduction of high risk use. Variations
in the overall prevalence of cannabis use is only a weak indicator
of harm or the risk of harm. The significant risks of harm are more
closely associated with frequent use, and early adolescent
initiation of use. The following points give some indication of how
the civil and criminal approaches fare with respect to these
indicators.
-
- There was an increase in the rate of weekly cannabis use across
all Australian jurisdictions between 1988 and 1995, but there is no
significant statistical difference between the rate of increase in
South Australia and in the rest of Australia. The largest increase
occurred in Tasmania, between 1991 and 1995, a criminal
prohibitionist state.(147)
-
- There is no published comprehensive analysis comparing recent
Australian state data on age of initiation. However, information is
available that early age initiation of cannabis use significantly
increased in Victoria between 1992 and 1996, with a jump from three
per cent to 15 per cent in the proportion of Year 7 students trying
cannabis.(148) Lenton et al. also suggest that on the
basis of South Australian surveys of 3000 school students between
1986 and 1989, it does not appear that the civil system impacted on
cannabis use among 11 to 16 year olds.
This limited data relating to the stronger
indicators of risk suggests that civil penalties do not seem to
increase frequent use or early age use. But frequency still
increases under criminal penalties, and early initiation still
increases in at least one criminal prohibitionist state.
It has been suggested that the low deterrent
effect of criminal sanctions is due to a number of factors
including:
-
- the low probability of detection. Lenton et al. estimates the
chances of being charged in WA (an active criminal prohibitionist
state) as less than .01 per cent for any one occasion of use)
-
- evidence of low levels of social support for criminal sanctions
for minor cannabis offences(149)
-
- a high degree of acceptability among 14-39 year olds of regular
cannabis use (45 per cent of males and 30 per cent of females in
1998)(150), and
-
- significant support among 14-39 year olds for the legalisation
of cannabis use (42 per cent of males and 34 per cent for females
in 1998).(151)
Reduction of Supply. How successful has
criminal prohibition been in deterring harmful modes of supply? All
the available evidence suggests that cannabis continues to be
readily available throughout Australia (which is predominantly
criminal prohibitionist). Also, as noted at the outset, the
Australian Bureau of Criminal Intelligence attributes a significant
proportion of the supply to organised, large-scale producers and
distributors. In 1999-2000, South Australian police reported an
increase in outdoor as well as indoor cultivation, and it is
believed that South Australia provides other jurisdictions with
large quantities of cannabis through long haul transport. So, in
both criminal and civil prohibitionist jurisdictions there is still
strong evidence of undeterred large-scale supply of cannabis. (It
should be observed, though, that in civil prohibitionist
jurisdictions large-scale production and distribution of cannabis
is still criminally prohibited.)
Separation of Drug Markets. How well
have civil penalties worked to separate cannabis markets, and
reduce users' exposure to organised criminal distribution networks
(and to reduce the demand for those networks)? A response to this
will be slightly more involved. Again, South Australia, the longest
and most extensively examined civil regime, provides some relevant
information. Two observations are important to note in this
connection:
-
- There is evidence that commercial scale growers were exploiting
the expiation system and growing a number of smaller 10 plant crops
indoors, therein reducing the risk of detection as well as
penalty.(152) This would have required the involvement
of a number of growers at different sites to form consortia. But it
is unclear to what extent these growers would have already been
involved in commercial distribution networks, as opposed to being
criminally unconnected growers/users who were simply
recruited.(153)
-
- It has been argued by Sutton, that even if the expiation scheme
by removing criminal penalties removes a major disincentive to
self-cultivation/self-supply, there are still some major
disincentives, particularly for the teenage/young adult users who
were of most concern in the initiative to separate markets. Sutton
observes that young people are less likely to have the economic and
social resources to command the personal space required to grow
plants without detection. He argues that this makes it more likely
that young adults will 'forego the "option" of growing their own,
and continue to rely on commercial suppliers'.(154) If
this is right, then the capacity of the civil system to separate
markets for more vulnerable younger users will not be as great as
perhaps envisaged.
Reduction in criminal conviction. One
of the central objectives of the civil system was to ensure that
minor cannabis offenders would avoid criminal convictions, and the
social and personal costs these involve. The South Australian
system, however, has experienced problems in meeting this
expectation. The following points indicate how.
-
- Between 1987-88 (close to when the SA expiation scheme was
initiated) and 1993, the number of issued expiation notices rose
from 6200 to 17 000. The increase has been attributed to police
activity (net widening) rather than changes in use. Whereas, before
the expiation scheme an informal caution would have been given and
the matter taken no further (usually because of the time and
resources involved), with the advent of the scheme, there was less
reason to caution because issuing a notice was easy.
-
- Only about 45 per cent of the fines imposed through civil
expiation notices in South Australia are paid.(155) This
leaves about 55 per cent open to prosecution and the risk of a
criminal conviction. (About 92 per cent of those forwarded for
prosecution resulted in a criminal conviction for the original
offence.)(156) This means that as early as 1993, there
were over 9000 offenders in South Australia (55 per cent of 17 000)
still at risk of criminal conviction, more than the number of
offenders when the scheme began in 1987.
The phenomenon of net widening brought about by
the ease of issuing notices, and the high rate of failure to
expiate have been counterproductive to one of the key goals of the
civil penalty system in South Australia.
So, in all, both criminal and civil
prohibitionism have limited effectiveness in reducing harm.
Criminal prohibitionism appears not to be more effective than civil
in reducing cannabis use, reducing risky forms of use, or reducing
supply. Both are on a par in these respects. Civil sanctions do not
'send the wrong message' if this means people becoming more
inclined to use cannabis because of those weaker sanctions. And
criminal sanctions do not appear to send an especially effective
'message' either. It should be said, though, that the civil system
(in SA, at least) may to some degree facilitate commercial
cultivation and distribution. The South Australian civil system, as
it was originally designed, has fallen below expectation in its
goal of reducing the prospect of criminal conviction for minor
offences. All of these (largely unforeseen) shortcomings of the
civil system need to be seen in the correct comparative light,
however. They are failures in the civil system's goals of avoiding
some of the harms of criminal penalisation. Those harms are still
inherent to the criminal system, and the failure of the civil
approach to fully avoid them does not make it less effective at
reducing harm than the criminal approach.
Efficient Harm
Reduction
A comprehensive assessment of the harm reduction
capacity of a legislative approach needs to include not only what
drug related harms the approach positively reduces, but also the
harms and costs that are inevitably generated in doing so. How do
criminal and civil prohibitionist approaches compare on these?
Resources and expenditure. In 1994, the
Queensland Criminal Justice Commission estimated that in Queensland
(a criminal prohibitionist state), the smallest cost per case of
police and court processing of a minor cannabis offence was
$138.(157) In 1999-2000, there were 42 791 cannabis
arrests in criminal prohibitionist Australian jurisdictions. On the
assumption that approximately 70 per cent of all cannabis arrests
in Australia were for minor use/possess offences,(158)
this would mean that in 1999-2000, at least $4.1 million was spent
by those jurisdictions dealing with minor (and relatively harm
free) cannabis offences.
A comparison of estimated costs of the civil
system in South Australia (with a 44 per cent expiation rate) and a
criminal system if it had operated in that state in 1995-96 was
conducted by Brooks, Stathard, Moss, Christie and Ali. It estimated
that the total cost of the criminal approach would have been $2.01
million, with $1 million revenue from paid fines. The total cost of
the civil system was estimated at $1.24 million, with incoming
revenue of $1.68 million. So, the criminal system would have had a
net cost of $1.01 million, while the civil approach no net cost and
a revenue balance of $0.44 million. It is important to note here,
however, that the costs of the expiation system are escalated when
non-expiated fines are pursued by the police and/or prosecuted by
courts. Nonetheless, the infringement notice system has a
considerable capacity to be very cost beneficial when there is a
sufficient degree of compliance.
Harmful/costly outcomes and side
effects. The major undesirable side effects and outcomes that
have been associated with the criminal prohibitionist approach
includes the following:
-
- It has already been suggested that a criminal conviction seems
disproportionate to the harm of a minor cannabis offence. There is
also evidence that a conviction in these cases can result in a
weakening of respect for the law and police on the part of
otherwise law abiding people who are
convicted.(159)
-
- The possibility of a criminal penalty for small-scale personal
cultivation of cannabis can provide an incentive for individual
users to continue accessing organised cannabis distribution
networks, rather than growing their own. (It is better from their
point of view that others should take the risk of a serious penalty
for cultivating or supplying cannabis.) Ongoing contact with
large-scale distributors increases the risk of contact with more
harmful drugs. It also increases the risk of exposure to violence,
or further criminal involvement.
-
- It is sometimes argued that the threat of criminal penalties
for cannabis use can act to inhibit the dissemination of reliable
information about the dangers of cannabis use, particularly to
vulnerable adolescents. It might also act to inhibit people (again,
especially young people) from seeking therapeutic help, or
acknowledging the existence of a cannabis
problem.(160)
Some of the unanticipated potentially harmful
outcomes of the civil system were noted above in the discussion of
effectiveness. Chief amongst these was the formation of organised
consortia in South Australia which exploited the (previous) 10
plant limit for commercial distribution. In relation to this,
however, it is very worth remarking that it is not the operation of
civil penalties in itself that generates the harm that is
associated with criminally organised commercial distribution. The
civil system is only responsible for facilitating or enabling a
harm that, in this case, has its true source in the existence of
the cannabis black market, and in turn, the circumstances that
sustain its existence and operation. This issue, and its
significance, will be taken up a little more at the end of this
paper. For the moment it is sufficient to recognise that the civil
penalty approach may not be fully responsible for its harmful side
effects in this instance. Those harms may be predisposed by other
conditions that prevail.
In all, the civil approach certainly has a much
greater potential to be cost effective, and even revenue
generating. And though both approaches do suffer from harmful
outcomes and side effects, more seem to attach to imposing criminal
penalties for minor offences. The civil approach would therefore
appear to be the more efficient approach overall.
Integrated and
Consistent Harm Reduction
Even when the legislative approach to cannabis
in one state has a good capacity to reduce harm, this can be
undermined if the approaches in other jurisdictions are out of step
with it. A clear example is, again, the case of South Australia and
the fact that it is a significant exporter of cannabis to other
Australian jurisdictions. This would occur less if the need in
other jurisdictions for importation was weaker, and it might
arguably be weaker if a similarly liberalised approach to
small-scale cultivation also applied in those jurisdictions. The
occurrence of large-scale cannabis exportation from South Australia
is usually viewed as an indictment of the legislative approach in
that state.(161) But it may well be better seen as a
reflection of the restrictive regimes that apply in other
jurisdictions. It is important that there be consistent application
of harm reduction between all Australian jurisdictions.
On a slightly different note, there is also a
need to reduce inconsistency between legislative responses to
cannabis and to other drugs like alcohol and tobacco. There is
increasing public awareness of the substantial harms of tobacco and
alcohol abuse in comparison with cannabis use,(162) and
apparently widespread acceptance of the (regulated) legality of
alcohol and tobacco. It is important not to undermine confidence in
the law by maintaining disparate legal approaches which are hard to
reconcile from the point of view of harm reduction.
The Overall
Evaluation: Which Australian Approach has a Greater Capacity to
Reduce Harm?
Reviewing the performance of both approaches on
all of the harm minimisation criteria, it is arguable that the
civil prohibitionist approach is to be preferred. Though both
approaches, in being completely prohibitionist, over-target for
cannabis harm, the civil system sought to address some harms that
the criminal approach did not. To that extent it was better
targeted. The civil approach was also more proportionate in its
penalties. Criminal prohibitionism did seem more comprehensive in
the range of options it currently employed for harm reduction. But
most of them were employed to reduce or compensate for the harmful
impacts of that legislative system itself, and not independent
health related cannabis harms or risks. So, it could only be
regarded as slightly more comprehensive in its means of reducing
harm.
With respect to effectiveness, the criminal
system appeared to have no special advantage in deterring use or
supply, and there was even evidence that levels of harmful use
increased under it. The civil system in South Australia, on the
other hand, was subject to some unanticipated failures and side
effects that made it fall short of its intentions. Even so, the
shortcomings resided in how well it circumvented some of the harms
and problems of the criminal approach. Given this, it would at
worst be no less effective than that approach. On top of this, what
is really being assessed here is the capacity or potential
of an approach to be effective in reducing harm. Were the
unanticipated impediments to the South Australian civil system
addressed, there would be much more confidence in the effectiveness
of the civil approach. On the matter of efficiency, however, there
would be less equivocation. The civil approach is more resource
efficient in its operation, and there is less danger of it
generating some of the harms inherent in the criminal approach.
Room for Improvement?
Improvements to
the Civil Penalty System
The fact that the civil penalty system appears
to have the greater capacity for harm reduction does not mean that
it is as successful as it could be. The evidence above identified
ways in which it fell short of its goals and produced unintended
outcomes, at least as it was practised in South Australia. So,
there is certainly room for improvement, particularly when it comes
to being effective in its intentions, and maybe even in its
comprehensiveness. (And perhaps adopting a more comprehensive
strategy might be the route to enhancing its effectiveness). The
following relate some of the ways in which commentators believe
some of the potential shortcomings of the civil system can be
addressed. Before going on to this, though, why should we not try
to salvage criminal prohibitionism in the same way? It too fell
short of its goals and produced problematic outcomes. Why not seek
ways of patching these up? The reason is that many of those
problems and shortcomings are due to the criminal penalties at the
heart of that approach. It could not be sufficiently improved (at
least not to bring it up to the level of civil prohibitionism (as
amended)) without changing its very nature as criminal
prohibitionism. It would be self-defeating in other words.
Failure to expiate. Research has
suggested that in South Australia, the low rate of expiation may be
due to a combination of many recipients' low financial resources
(many recipients being teenagers, young adults, and the
unemployed), and also a lack of their awareness of the consequences
(both financial and legal) of non-expiation.(163) To
address the first contributing factor, there has recently been an
increase in the modes of expiation available, to allow for example
paying by instalments or through community service. The second
impediment could be minimised through an increase in clear and
comprehensive information about expiation. (The practice in the
Northern Territory of taking non-expiators into custody until their
fine is paid is clearly costly and inefficient, and some other
noncustodial option for encouraging payment would seem more
advised.)
Net widening. A factor that may have
contributed to the low rate of expiation is the increase in young
people being issued Cannabis Expiation Notices (CENs) when they
would have previously been cautioned. One commentator has suggested
that SA police need to revert to the use of discretion in their
cannabis policing and to give informal or formal warnings more, and
selectively issue notices only when 'this would be likely to
achieve some broader benefit-for example, helping to suppress
undesirable producers and disrupt harmful markets'.(164)
Here, harms may be better targeted by being flexible in the way the
law is enforced.
Development of commercial consortia. In
response to this phenomenon, the SA government in 1999 reduced the
expiable plant limit from 10 to three plants. The belief was that
this would increase the number of people who would have to be
co-opted to produce a marketable quantity of cannabis. There is no
evidence yet as to whether this has worked to weaken the formation
of consortia or not. However, it has been argued that this measure
will simply make it more likely that criminal networks will
continue to dominate the cannabis market, and more likely that
personal users will continue accessing those networks instead of
other friendship based ones relying on low level
self-cultivation.(165) Rather than decreasing the number
of plants, it has been argued that a better option would be for
police to more actively utilise provisions in the law to lay
charges against those they believe are engaging in commercial
consortia, or to take other action like confiscation of equipment,
or repeated issuing of CENs.(166)
With these sorts of procedural modification, the
civil system may be better placed to more fully achieve its
goals.(167)
Improvements
on the Civil System? The Non-prohibitionist
Alternative
The evidence and analysis so far has suggested
that civil prohibitionism (when properly refined) has a greater
capacity to minimise harm than criminal prohibitionism. Its
advantage lies largely in its potential to avoid certain of the
harms that the operation of criminal prohibitionism can generate.
But, as the earlier discussion of effectiveness showed, it is not
especially better at reducing or addressing other sorts of serious
harms and risks, like harmful/high risk cannabis use, or the deeply
entrenched control by organised criminal groups of cannabis
distribution. One reason it is no better might be that, apart from
its application of civil penalties to minor offences, it is still
largely a criminal prohibitionist approach. And some would further
suggest that any prohibitionist approach to cannabis will
be very limited in its capacity to address these serious
harms.(168) Holders of this view will argue that civil
prohibitionism is simply a less problematic variant of a broad
approach to cannabis that is unsatisfactory because it leaves the
real problems unresolved. What sorts of considerations might
underlie this view, and what benefits if any might a
nonprohibitionist approach hold? The remainder of this paper takes
a brief look at this issue. In keeping with the previous analysis,
it will focus on how well prohibitionism and how well its
alternatives might target harm, and reduce harm effectively and
efficiently.
There are three types of alternative to total
prohibitionism-partial prohibitionism, regulated availability (as
with alcohol and tobacco), and unregulated free availability (as
with tomatoes). An example of partial prohibitionism would be the
proposal made by the Victorian Premier's Drug Advisory Council in
1996 (Penington Inquiry) to allow Victorians to possess a small
quantity of cannabis and to grow up to five plants for personal use
without penalty. Larger scale possession and production were to
remain serious criminal offences.(169) All of the
various issues and arguments about the suitability of total
prohibitionism will arguably reduce to one fundamental deciding
question: is total prohibitionism, with its attendant costs and
harms, justified in the light of the cannabis related harms that
would exist if it were not in place (but some alternative were)?
Hopefully some impressions will emerge about this from looking at
the targeting, effectiveness and efficiency of total
prohibitionism.
Targeting of Harm
Total prohibitionism
-
- It was argued earlier that total prohibitionism, in aiming to
reduce all cannabis use and all modes of acquisition and supply,
over-targets for harm. Only some forms of use, acquisition and
supply hold a significant risk of harm. (It was conceded that civil
penalties for minor use and supply were more appropriate in their
targeting. But they still, strictly speaking seek to deter or
reduce activities that, viewed overall, are not significantly
harmful.) Clearly, seeking to reduce or deter nonharmful activities
will be a source of great inefficiency. But it is also undesirable
in that it amounts to coercively interfering in individual
activities that are typically not within the domain of the law. As
practised in Australia, the activities that are typically the
concern of the law are those that harm others (warranting criminal
sanctions) or inconvenience others (warranting at most civil
sanctions).(170)
Partial prohibitionism
-
- Removing penalties for possession, use and cultivation of small
amounts would be an improvement to the extent that it would no
longer target activities that generally hold a low risk of harm.
Supplementary measures that are nonpunitive (such as highly
targeted education, information and treatment programs) may be
better placed to identify and deal with individuals whose patterns
of use are harmful, or those groups that are at high risk of
harm.
-
- Maintaining prohibition of larger-scale production and
distribution of cannabis does, strictly speaking, aim at activities
that potentially involve serious harm. But there is significant
question as to whether prohibition is an effective way of aiming to
address those harms. (See the discussion below.)
Regulated availability
-
- If the distribution of cannabis is either undertaken by
government agencies, or by non-government agencies under government
regulation, then there would be opportunity to have greater control
over which individuals or groups receive what amount of cannabis of
what strength and for how much. As with alcohol and tobacco,
governments will never have complete control over who gets to use
cannabis, but it would probably have more control over this than if
distribution remains within the control of completely unregulated,
and often unscrupulously profit driven criminal groups.
Free availability
-
- Though allowing anyone to use, produce and distribute cannabis
may act to weaken the role of the criminal black market, it would
leave untargeted those forms of use that are high-risk
(particularly, childhood or early adolescent use).
Effectiveness and
Efficiency
Would nonprohibitionist alternatives probably
decrease or increase harmful cannabis use, or use among at-risk
groups? Would those alternatives probably decrease or increase the
harms associated with the forms of supply/distribution of cannabis
that currently exist under prohibitionism?
Total prohibitionism
-
- As the earlier outline of patterns of use in Australia
indicate, the incidence of cannabis use has increased under its
prohibitionist system. The incidence of use by at-risk groups
(early age initiation) has increased, as has frequency of use among
young people. There is also a significant level of cannabis
dependence syndrome, and continuing risk of it with frequent use
during adolescence.
-
- The commercial scale supplying and distribution of cannabis has
not abated nor been significantly deterred under a prohibitionist
system in Australia.
-
- With respect to the resource costs and undesirable outcomes of
prohibitionism, two points are worth making. First, to the extent
that prohibitionism actively enforces the deterrence of and
intervention in a large number of mostly risk-free, cannabis
activities, it will be exceptionally costly for whatever benefits
it brings. Second, many argue, and not implausibly, that some of
the most serious harms and risks that cannabis prohibitionism is
intended to reduce-the domination of cannabis distribution by
organised criminal groups-are themselves products of
prohibitionism. History shows that where an activity for which
there is great demand is prohibited, but there is only limited
prospect of completely deterring or detecting it, there is the
tendency for a black market in production or supply to develop.
(Witness bootlegging in the US, and prostitution almost everywhere
else.) These markets are beyond official scrutiny, regulation or
state control as to what is supplied or to whom or by what means.
Organised, powerful groups driven by profits, willing and capable
of taking significant risks, tend to thrive within them. The
harmful outcomes that unsuccessful prohibitionism leaves in its
wake, will arguably, be substantial.
Partial prohibitionism
-
- Would usage rates among at-risk groups increase under this. A
recent analysis of overseas data indicates that there was no
significant difference in usage rates among young people in the
Netherlands and other compared nations during the period when the
Netherlands depenalised small-scale cannabis use and sale, i.e.
adopted a form of partial prohibition.(171) (See the
further data noted below, however.)
-
- A partial prohibitionist approach would be more resource cost
effective to the extent that it would not intervene in small-scale
use and supply.
-
- A partial prohibitionist approach will still actively and
strongly prohibit large-scale production and distribution. Because
it allows small-scale cultivation and supply, it may act to weaken
the market for cannabis from large-scale suppliers.
-
- The partial prohibitionist approach may not completely
eliminate the role of that market, and to that extent it is likely
to leave in place some level of the harms of criminal black
markets. Evidence from the Netherlands suggests that the
large-scale commercial black market continued to operate in the
context of partial prohibition.(172)
Regulated availability
-
- Recent analysis of overseas data indicates that cannabis use
among adolescents in the Netherlands increased relative to other
compared nations between 1984 and 1992 corresponding to the gradual
progression toward commercialised availability (i.e. regulated
availability). The authors of the analysis tentatively attribute
the increase to the heightened salience and glamorisation of its
availability through coffee shops.(173)
-
- Hall notes that, on the basis of our experience with alcohol,
it is plausible to think that regulated (and commercialised)
availability of cannabis may also produce some increase in the
number of regular and sustained users, (though what level of
increase would be hard to tell). With increases in this risky form
of use, there would be increases in concomitant health related
harms.(174) Similarly, there are indications from a
recent survey that 14 per cent of 20-29 year old respondents would
be more likely to use cannabis more frequently if it were legal.
Eighty-three per cent indicated they probably would not use it more
frequently.(175)
-
- Regulating the availability of cannabis might not reduce its
use, and may contribute to some increase in its regular use, but
depending on how it operates, it may be better placed to manage
risky or harmful use, or harms to at-risk groups. For example,
modelling shows that there is a relationship between the price of
cannabis and usage rates.(176) Through price regulation,
it may be possible to reduce access to cannabis by adolescents (a
strategy used with tobacco taxation). Revenue might also be
productively used to prevent or redress consequent risks or
harms.
-
- To the extent that a system of regulated availability would
take control of large-scale production and distribution of
cannabis, it would leave little room for an unregulated
black-market, with its attendant harms. It would involve a lesser
degree of those undesirable side effects that total and partial
prohibitionism allow. Though partial prohibition might not increase
levels of use as much as regulated availability (with a commercial
dimension), regulated availability would seem to have greater
capacity to remove the (arguably more serious) harms of the black
market.
-
- From the point of view of resource costs, regulating the
availability of cannabis may also be cost effective if taxes are
imposed on sales.
The nonprohibitionist Dutch approach has also
had some success in separating drug markets, with significantly
fewer cannabis users going on to use more dangerous drugs. It has
succeeded more in reducing progression to other drugs than the US
prohibitionist system.(177)
It is worth reiterating here, the point that has
been made throughout-that no legislative approach to cannabis will
be harm free. The choice between approaches will always be a
compromise that involves enduring some harms and costs for the sake
of reducing other more significant ones. The challenge is to know
where the best compromise lies.
It should be said that the observations made in
the last section fully recognise that there is limited empirical
data directly relating to how things would look in Australia if
something other than its current totally prohibitionist system were
in place. So, to a considerable extent the observations made are
probabilistic and hypothetical. But their hypothetical nature does
not mean they have no substance, nor that they are just as
plausible and conjectural as any other hypothetical claims. There
is an important evidentiary role for hypothetical projections and
extrapolations about probable causes, outcomes and influences, as
long as they are carefully made. Public policy initiatives are
often made on their basis, sometimes to good effect and sometimes
not. Indeed, persistent and deeply entrenched social problems (such
as illicit drug abuse) sometimes require innovative public policy
solutions, and if the solutions are truly innovative there will be
little in the way of previous concrete experience and empirical
evidence to rely on. Good policy is made on the basis of the best
available evidence, information and argumentation; the absence of
one sort of information-pre-existing empirical data in this
case-should not bring policy debate and decision making to a
complete halt. So while the few observations made here are in no
way sufficient to decide the case one way or the other for
prohibitionism, they are nonetheless interesting enough for the
possibility of nonprohibitionist options to be on the agenda for
further consideration and investigation. This is all the more the
case now that overseas jurisdictions are beginning to take steps in
the nonprohibitionist direction with cannabis.
Appendix 1: Legislative Approaches in the
Australian States and Territories (and Other Relevant
Non-legislative Initiatives)
The following brief survey of legislative
approaches in Australian jurisdictions will focus primarily on
possession, use and cultivation of small amounts of
cannabis.(178)
Victoria. Under Victorian
legislation(179) the use of cannabis is a summary
offence with a maximum penalty of $500. Possession and cultivation
are indictable offences. Possession of less than 50 grams (any part
of the plant) for personal use attracts a maximum penalty of $500,
and possession of 50 grams or more for personal use a maximum
penalty of $3000 and/or one year imprisonment. Cultivation of less
than 250 grams of cannabis (if not for trafficking) carries a
maximum penalty of $2000 and/or one year imprisonment. 250 grams or
more, or 10 plants, is counted as a trafficable quantity, and
possession of those amounts is taken as evidence of
trafficking.
Victoria also has statutory procedures for
dealing with first and second time possession/use cannabis
offenders. A system of adjourned bonds has applied for some time in
Victoria for minor first time (possession and use) drug
offences.(180) First offenders are given a bond, and no
conviction is recorded if the bond conditions are complied with. In
1993, adjourned bonds were applied to 40 per cent of all minor
cannabis charges in Victorian magistrate's courts.(181)
Victoria also has a police diversion initiative-the Cannabis
Cautioning Program-which has operated since 1998 (although it is
not legislatively based). First or second time offenders (over 17
years of age) who have had little or no previous contact with the
criminal justice system can be issued a caution notice instead of
having the offence proceeded with through the courts (for
possession/use of up to 50 grams). The caution notice includes
information about the harms of cannabis use. Whether an offender is
offered a caution is at the discretion of the police officer
concerned.
New South Wales. Possession or
use of up to 200 grams of cannabis leaf is a criminal offence in
NSW,(182) with a maximum penalty of $2000 fine and/or
two years imprisonment. In 1993, 78 per cent of these cannabis
offences were dealt with through a fine (often a small one of
$200)(183), and 90 per cent of those found guilty had a
conviction recorded against them.(184)
In April 2000, the NSW police began a statewide
trial of a cannabis cautioning scheme. The conditions of the
cautioning trial are similar to that in Victoria. The relevant
quantities of cannabis are modest, however, with only up to 15
grams allowed for a caution to be issued.(185) Another
important legislative initiative in NSW is the establishment of
drug courts under the Drug Court Act 1998. While the
majority of people involved in the NSW Drug Court program may
identify heroin as their drug of choice, cannabis is also used by
these offenders.
Western Australia. The use of
cannabis, the possession of up to 100 grams, (or 20 grams of resin
i.e. concentrated cannabis extract), and the cultivation of up to
25 plants are criminal offences.(186) The maximum
penalty is two years imprisonment and/or $2000 fine. The possession
of implements for use or cultivation of cannabis is also a criminal
offence, with a maximum penalty of $3000 and/or three years
imprisonment.
WA has also implemented a statewide cannabis
cautioning program (since March 2000) for first/second time adult
offenders in possession or use of up to 50 grams of cannabis. The
caution has an education/counselling intervention as a
condition.
Queensland. It is an offence in
Queensland to possess up to 500 grams of cannabis, or where plants
are concerned, up to 100 plants (or up to 500 grams equivalent in
weight).(187) If the offence is dealt with as an
indictment, the maximum penalty is 15 years imprisonment and/or
$300 000 fine. If dealt with summarily, the maximum penalty is two
years imprisonment and/or $6000 fine. There is no distinction under
Queensland law between small amounts (for personal use) and larger
quantities up to 500 grams (which most other jurisdictions would
regard as a trafficable quantity). Possession of drug paraphernalia
is an also offence.
Currently, under the Queensland Juvenile
Justice Act, those under 17 years of age can receive a caution
for possession of small amounts of illicit drugs including
cannabis. The Queensland government is currently negotiating with
the Commonwealth for the development and funding of a Police
Diversion Program targeting offenders in possession of up to 50
grams of cannabis.(188) Attendance at a counselling and
education program will be a condition of the diversion.
Tasmania. Section 49 of the
Poisons Act 1971 prohibits the possession of Indian hemp
(i.e. cannabis). The maximum penalty is 50 penalty units or two
years imprisonment or both.
Tasmania has a three staged Drug Diversion
Initiative. First time adult offenders for possession or use of any
drug including cannabis (up to 50 grams) are issued a cautionary
notice by police as well as a pamphlet containing educational
material. Second time adult offenders are referred to a one-hour
counselling/treatment intervention, and third time offenders are
diverted to a more comprehensive assessment, and based thereon, are
referred to either further counselling, detoxification, or
rehabilitation.
South Australia. A civil
infringement notice system has applied in South Australia since
1987 (the Cannabis Expiation Notice Scheme, or
CENS).(189) Adults(190) in possession of up
to 100 grams of cannabis plant material or up to five grams of
cannabis resin, or who cultivate up to three plants, can be issued
with fines of $50 (for possession of amounts less than 25 grams of
cannabis plant material, or less than five grams of resin, or for
consuming cannabis in a private place) or $100 (for between 25 and
100 grams of cannabis plant material), or $150 (for between five
and 20 grams of cannabis resin, or for cultivation of no more than
three plants)(191). If the fine is not paid within 60
days (expiated), a reminder is sent, and if still not payed, a
criminal conviction for cannabis is automatically
recorded.(192)
ACT. A similar infringement
notice scheme has applied in the ACT since 1992 (the Simple
Cannabis Offence Notice Scheme, or SCONS).(193) Adults
or juveniles possessing or using up to 25 grams of cannabis, or
cultivating up to five plants are issued a $100 fine at police
discretion. Those in receipt of the notice have the option of
paying the fine within a prescribed time or later appearing in
court, with the possibility of a conviction (though a conviction is
not inevitable).
Northern Territory. Adults in
possession of up to 50 grams of cannabis plant material or up to 10
grams of cannabis resin, or cultivating up to two plants are issued
with an on the spot fine of $200 (via a Drug Infringement Notice,
or DIN).(194) If the fine is not paid within a specified
time (after a reminder), the offender is taken into custody or the
amount can be recovered by a warrant of distress. They have the
option of contesting their infringement in court, with the
consequent possibility of a criminal conviction.
Appendix 2: Current and Emerging Overseas
Approaches to Cannabis
Most countries are parties to the United Nations
1961 Single Convention on Narcotics which requires drug
abuse and trafficking to be combated in each country by national
legislation. Article 36 (Penal Provisions) of the Single
Convention suggests that possession of scheduled drugs
(cannabis included) should attract strong sanctions in the domestic
law of State Parties. The most recent international
convention-The United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances
1988-requires that the possession, purchase or cultivation for
personal use of scheduled illicit drugs (cannabis included) should
be established as criminal offences under domestic law
(Article 3, Clause 2).(195) It is unsurprising,
therefore, that the legislative approaches to cannabis in most
overseas jurisdictions will be prohibitionist in orientation. There
are a range of possibilities within this broad orientation,
however, and many jurisdictions (particularly in the European
Community) are exploring varied approaches to cannabis.
The following gives a brief snapshot of some
established and emerging legislative and policy approaches to
cannabis overseas. Nearly all of the cited jurisdictions will be
similar in treating the supplying or large-scale cultivation of
cannabis as serious criminal offences. The differences between them
relate mostly to how they deal with minor cannabis related
activities (e.g. possession, use, cultivation of small quantities),
and whether the jurisdiction makes a distinction in legal approach
between 'hard' and 'soft' drugs.
European Community
The recently published Extended Annual
Report on the State of the Drug Problem in the European Union
1999(196) reports the following observations about
cannabis use in the European Union overall:
-
- the proportion of the population who have ever used cannabis
has increased in most countries in the European Union, and its use
is not associated with any particular social context or social
group
-
- the proportion of offences for cannabis use is either
increasing or remaining stable in European Union countries. The
total quantity of cannabis seized in the EU rose rapidly in the
1990s from 236 tonnes in 1989 to 758 tonnes in 1995, and there has
been an eight-fold increase in the number of cannabis seizures
since 1985, and
-
- cannabis is reported as the main problem drug for presentation
to treatment in only 10 per cent or less treatment admissions
across the EU. Cannabis treatment clients are generally much
younger than those for heroin or other drugs, and cannabis is most
often reported as a secondary problem drug for those accessing
treatment.
Austria. Possession and
acquisition of small quantities of drugs (cannabis included) are
punishable offences depending on the policies of Austrian States.
The penalty usually corresponds with the quantities involved (from
a fine to six months imprisonment), with trafficking offences being
particularly severe. (Five years for a basic offence, and 1-15
years for supplying large amounts.) Charges may be set aside or
withdrawn in the case of first time offenders, and those willing to
undergo treatment.(197)
Belgium. In 1998, Belgium
relaxed the enforcement of its prohibitionist laws regarding
cannabis use, so that cases of private possession and consumption
be the lowest priority of law enforcement. More recently, in
January 2001, a royal decree was ordered for prosecutors not to
pursue people for personal possession or consumption of cannabis.
The production or supply of large quantities, and the 'problematic'
use of cannabis will still be actively prosecuted.(198)
The penalties for trafficking are from three months to five years
imprisonment and a fine of between 1000 to 10 000 francs. (A
similar proposal is reported to be before the Luxembourg
Parliament.)(199)
Denmark. Danish law makes a
distinction between cannabis and other drugs.(200) In
law, the possession and use of cannabis are offences. However, in
practice, the possession and use of minor quantities are handled by
a warning or a fine, if that. Citing Jepsen (1996)(201),
Lenton, et al. state that the Danish situation is best described as
de facto decriminalisation of use and possession of minor
quantities with quite minimal penalties for sale of small amounts.
They suggest that this situation has been achieved by political
direction and police practice rather than by actual legislation
removing offences.
France. In law, France strictly
prohibits (with criminal penalties) cannabis possession, use and
supply, and no distinction is made in law between cannabis and
other drugs. The legal penalties for use are between two months and
one year imprisonment and/or a fine of between 500 and 25 000
francs.(202) There are, however, variations between
districts in France (180 different districts) as to how rigorously
these penalties are imposed. In big cities there may be more
tolerance than in rural areas where cannabis use is often
prosecuted.(203) In 1978, the Ministry of Justice
instructed prosecution dealing with cases of use of cannabis leaf
and resin (but not oil) to restrict action to a warning, and a
recommendation that the user seek education or
counselling.(204) (It has been recently reported that
French authorities do not prosecute 95 per cent of cannabis
possession cases.)(205)
Germany. At the Federal level,
the possession and supply of cannabis is prohibited, and criminal
penalties are specified in federal narcotics laws. However, in 1994
the German Constitutional Court, while upholding the
constitutionality of the federal prohibitionist laws, argued that
there was sufficient flexibility in the law to allow enforcement
agencies the discretion to impose minimal or no penalties for
personal possession and use. There is consequently a degree of
variation between German states in how such offences are dealt
with. In the northern state of Schleswig-Holstein, for instance,
charges for possession of less than 30 grams are dropped, while in
the southern state of Thuringen, charges are rarely
dropped.(206)
Italy. Due to the outcomes of a
1992 referendum, the personal possession and use of cannabis in
Italy is not a criminal offence, but is subject only to
administrative sanctions, such as the suspension of driver's
licence. The cultivation or supply of cannabis are still criminal
offences. Between 1975 and 1990 in Italy, personal drug use was
nonpunishable.
Netherlands. A distinction is
made in law and practice between 'hard' and 'soft' drugs, the
former being characterised as those that entail an unacceptable
risk to health, and the latter involving less risk. Although
cannabis related activities are an offence according to Dutch
legislation, possessing, selling and growing small amounts of
cannabis are, in practice, not prosecuted. They are not considered
offences for detection, arrest or prosecution. The Netherlands also
allows the supply of cannabis through 'licensed' and regulated
coffee shops. The rationale for this government involvement in
supply is to maintain a separation between the markets for 'hard'
and 'soft' drugs, so people will not have to seek their cannabis
from dealers who also supply harder drugs.
Portugal. It has been reported
that a new law will come into effect in Portugal in July 2001 which
will remove criminal penalties for the personal use of all drugs,
hard and soft. This measure is designed to facilitate the access of
drug users to treatment.(207)
Spain. Personal possession of
less than 50 grams of cannabis or its derivatives is not a criminal
offence, though it may attract administrative (civil) fines of
between 500 to 50 000 points. Possession of amounts over 50
grams are deemed public health threats and are criminal offences
carrying a fine and/or imprisonment.(208)
Sweden. All drug use,
possession acquisition and trafficking are criminal offences under
Swedish law. Offences are divided into three levels, distinguished
by the quantity of drug involved: minor, simple and aggravated.
Minor offences such as possession or use of small amounts of
cannabis attract fine-based penalties which can be exchanged for
counselling in some cases.(209)
Switzerland. Until recently,
all drug use, possession, and acquisition was technically
prohibited under Swiss law, with possession and sale carrying a
possible maximum of five years imprisonment.(210)
However, Swiss policy regarding cannabis possession, use and supply
is being radically reassessed in the light of some recent referenda
and government reports. The Swiss government has proposed
legislation that will legalise the cultivation, sale and
consumption of cannabis, (but subject these to government
regulation).(211) The proposal has been made against the
background of statistics indicating that in a population of 7
million, over 500 000 people are regular users of cannabis who
collectively spend over US$650 million a year on cannabis. Under
the proposed legislation, strict rules will govern cannabis related
activities: only Swiss grown cannabis can be sold (with quantities
and prices to be determined); importation or exportation of the
drug will be forbidden; and only Swiss residents will be able to
buy the drug (sale to minors being prohibited). The Swiss
government also intends to intensify its drug prevention policies.
This legislative approach would be an example of a system of
regulated availability.
United Kingdom. Possession
supply and acquisition of cannabis are offences in the UK, with the
maximum penalty for possession and/or acquisition being six months
imprisonment and/or a fine of 400. Simple possession will usually
result in a fine for a first offence or a caution/warning, although
there are considerable variations across the UK in how offences are
dealt with. It has been reported that discretionary guidelines on
drug possession issued by the British Home Office allow officers to
issue written warnings and make conditional offers of a fixed
penalty to possession offenders. The definition of supply is
broadly drawn, including the giving or sharing of drugs among
friends.(212)
North America
Canada. Canada's approach to
cannabis related activities is governed by Federal law and would be
described as prohibitionism with predominantly criminal penalties.
Although the law treats cannabis as distinct from other drugs such
as opiates and cocaine, simple possession can still be dealt with
as a criminal offence (or as a summary offence). For possession of
up to 30 grams of cannabis or one gram of cannabis resin, the
offence must be dealt with summarily, and carries a maximum penalty
of six months imprisonment and/or a fine of C$1000.(213)
Possession of larger amounts can still be dealt with summarily,
with escalating penalties for subsequent offences. If dealt with as
a criminal offence, simple possession can still attract penalties
of up to five years imprisonment. Lenton et al. observe that
Canadian judges can choose from a range of sentencing options
including fines, imprisonment, probation, discharge or conditional
discharge. Possession offences are rarely tried on indictment. A
project piloting diversion for first time offenders has recently
been conducted in Toronto, and police in Vancouver have indicated
that they will only press charges for simple possession in the
event of aggravating factors.(214)
United States. US federal law
adopts a prohibitionist approach to cannabis related activities,
where a first offender for possession can receive up to one year
imprisonment and a fine of up to US$10 000.(215)
State penalties can vary considerably, however. In the 1970s,
eleven states changed their criminal prohibitionist approach to
cannabis possession to systems of prohibition with civil
penalties.(216) Maximum penalties in these states for
possession of up to (usually) one ounce, or 28 grams of cannabis,
varied between up to US$100 and US$250. In nearly half of these
states the civil penalties were limited to only first-time
offenders.(217) The remaining US states still maintain
criminal penalties, and it has been estimated that in 1998, 37 000
people were imprisoned in the US for cannabis
offences.(218)
Between 1978 and 1982, 32 states passed laws
acknowledging the therapeutic benefits of cannabis, and sought to
make it available within medically supervised
programs.(219)
Endnotes
-
- The relevant Commonwealth statutes are The Customs Act
1901, Narcotic Drugs Act 1967, Psychotropic Substances Act 1976,
Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act
1990.
- Stanbury Higgins, Statistics on Drug Use in Australia
1998, Australian Institute of Health and Welfare, 1999.
(Sourcing data from the 1998 National Drug Strategy Household
Survey).
- ibid.
- ibid.
- ibid.
- L. Moon, P. Meyer and J. Grau, Australia's Young People:
Their Health and Well-being 1999, Australian Institute of
Health and Welfare, 2000.
- Stanbury Higgins, 1999, op. cit.
- N. Donnelly and W. Hall, Patterns of Cannabis Use in
Australia, National Drug Strategy Monograph Series, no. 27,
Canberra, 1994.
- T. Makkai and I. McAllister, Patterns of Drug Use in
Australia, 1985-95, National Drug Strategy, 1998.
- ibid.
- C. Coffey, M. Lynskey, R. Wolfe and G. Patton, 'Initiation and
Progression of Cannabis Use in a Population Based Australian
Adolescent Longitudinal Study', Addiction, no. 95, 2000,
pp. 1679-90. Only four per cent of those who used occasionally in
the middle school years became daily users, however.
- Australian Institute of Health and Welfare, Drug Use in
Australia and its Health Impact, 1999. It has also been argued
that cannabis use generally discontinues by the middle to late 20s.
See W. Swift, J. Copeland and S. Lenton, 'Cannabis and Harm
Reduction', Drug and Alcohol Review, no. 19, 2000, pp.
101-12.
- T. Makkai and I. McAllister, 1998, op. cit.
- A. Jablensky, J. McGrath, H. Herman, C. Castle et al.,
People Living with Psychotic Illness: An Australian Study
1997-98, National Survey of Mental Health and Well-being
Report 4, Mental Health Branch, Commonwealth Department of Health
and Aged Care, 1999.
- L. Trimboli and C. Coumerlos, 'Cannabis and Crime: Treatment
Programs for Adolescent Cannabis Use', Crime Justice
Bulletin, no. 41, 1998, pp. 1-16.
- T. Makkai and I. McAllister, 1998, op. cit.
- ibid.
- Doug Johnson, 'Age of Illicit Drug Initiation', Trends and
Issues in Crime and Criminal Justice, no. 201, Australian
Institute of Criminology, 2001.
- Some argue that the association is most often due to a common
set of underlying social factors such as low socioeconomic status,
poor educational, income and career prospects, and a low investment
in social values. See Eric Single, 'Options for Cannabis Reform',
Conference Proceedings: Regulating Cannabis: Options for
Control in the 21st Century: International Symposium, Regents
College, London, 5 September 1998.
- Paul Williams, 'Illicit Drug Use in Regional Australia,
1988-98', Trends and Issues in Crime and Criminal Justice,
no. 192. Australian Institute of Criminology, 2001.
- Australian Bureau of Criminal Intelligence, The Illicit
Drug Report 1999-2000, 2001.
- L. Moon, P, Meyer, and J. Grau, op. cit.
- Natalie O'Brien, 'A Nation of Dope Smokers Revealed', The
Australian, 20 June 2001. (Reporting on a study being
conducted by Professor Ken Clements, director of economic research
at the University of Western Australia.)
- W. Hall and W. Swift, The THC Content of Cannabis in
Australia: Evidence and Implications, Technical Report no. 74,
National Drug and Alcohol Research Centre, UNSW, 1999.
- An ounce of hydroponic cannabis (approximately 28 grams) can
cost from $200 to $500.
- Australian Bureau of Criminal Intelligence, op. cit.
- D. McDonald and L. Atkinson, Social Impacts of the
Legislative Options for Cannabis in Australia, Phase 1 Research
Report to the National Drug Strategy Committee, Australian
Institute of Criminology, 1995.
- D. McDonald, R. Moore, J. Norberry, G. Wardlaw and N.
Ballenden, Legislative Options for Cannabis Use in
Australia, Monograph no. 26, 1994. Different classifications
have been proposed prior and subsequent to McDonald et al.
- McDonald et al., label this variety of prohibitionism total
prohibitionism. That label, however, does not necessarily make
the distinction intended. There are other forms of prohibitionism
which do not involve criminal penalties (but civil or other forms
of consequence) which are still totally prohibitionist to the
extent that they legislatively prohibit or disallow all cannabis
related activities-the penalties they apply are just less severe.
- It is arguable that the Commonwealth could use its
constitutional powers (especially sections 51(I) and (xxix)) to
cover the field.
- It should be noted that cautioning initiatives in these
jurisdictions are not legislatively based.
- The national drug policies that have operated in Australia
since 1985 can be found at http://www.aic.gov.au/research/drugs/strategy/index.html
- See, for example, J. P. Caulkins, and P. Reuter, 'Setting Goals
for Drug Policy: Harm Reduction or Use Reduction?',
Addiction, no. 92, 1997, pp. 1143-50; E. Single, 'The
Concept of Harm Reduction and Its Application to Alcohol',
Drugs, Education, Prevention and Policy, no. 4, 1997, pp.
10-15; E. Single, 'Defining Harm Reduction', Drug and Alcohol
Review, no. 14, 1995, pp. 287-90; S. Lenton and R. Midford,
'Clarifying 'Harm Reduction?', Drug and Alcohol Review,
no. 15, 1996, pp. 411-13.
- There are a range of other forceful considerations in favour of
harm reduction. For a presentation of the key considerations, see
The Victorian Parliamentary Drugs and Crime Prevention Committee,
'Harm-minimisation: Principles and Policy Frameworks',
Occasional Paper no. 1, Parliament of Victoria, 1998.
Also, see J. P. Caulkins and P. Reuter, 'Redefining the Goals of
National Drug Policy: Recommendations from a Working Group',
American Journal of Public Health, no. 85, 1995, pp.
1059-63.
- W. Swift, J. Copeland and S. Lenton, op. cit.
- P. M. Beardsley and T. H. Kelly, 'The Acute Effects of Cannabis
on Human Behaviour and Central Nervous System Functions', in H.
Kalant, W. Corrigall, W. Hall and R. Smart, eds, The Health
Effects of Cannabis, Centre for Addiction and Mental Health,
Toronto, 1999, pp. 129-69.
- W. Hall, N. Solowij and J. Lemon, The Health and
Psychological Consequences of Cannabis Use, National Drug
Strategy Monograph Series no. 25, 1994.
- Andrew Johns, 'Psychiatric Effects of Cannabis', British
Journal of Psychiatry, no. 170, 2001, pp. 116-22.
- W. Hall and L. Degenhardt, 'Cannabis Use and Psychosis: A
Review of Clinical and Epidemiological Evidence', Australian
and New Zealand Journal of Psychiatry, no. 43, 2000, pp.
26-34; W. Hall and N. Solowij, 'The Adverse Effects of Cannabis',
Lancet, no. 352, 1998, pp. 1611-16.
- H. Thomas, 'Psychiatric Symptoms in Cannabis Users',
British Journal of Psychiatry, no. 163, 1993, pp. 141-9.
- C. Heather Ashton, 'Pharmacology and Effects of Cannabis: A
Brief Review', British Journal of Psychiatry, no. 170,
2001, pp. 101-6; D. P. Tashkin, 'Cannabis Effects on the
Respiratory System' in H. Kalant and W. Corrigall et al., eds, op.
cit., pp. 313-47.
- M. Benson and A. M. Bentley, 'Lung Disease Induced by Drug
Addiction', Thorax, no. 50, 1995, pp. 1125-7; T. C. Wu, R.
T. A. Scott, S. J. Burnett, 'Pulmonary Hazards of Smoking Marijuana
as Compared with Tobacco', New England Journal of
Medicine, no. 318, 1998, pp. 347-51. Because of the typically
deep and prolonged unfiltered inhalation of cannabis, it is
estimated that there is a threefold greater amount of tar inhaled
and one-third more tar retained, than in smoking a tobacco
cigarette. However, users typically do not smoke nearly as many
cannabis cigarettes per day as most cigarette smokers. So, the
long-term effects of tar from cannabis consumption may not be as
great as at first appears.
- N. Solowij, Cannabis and Cognitive Functioning,
Cambridge University Press, Cambridge, 1998; H. G. Pope and D.
Yurgelun-Todd, 'The Residual Cognitive Effects of Heavy Marijuana
Use', Journal of the American Medical Association, no.
275, 1996, pp. 521-7.
- W. Hall and N. Solowij, op. cit.
- A. Johns, op. cit.; W. Hall, 'Cannabis Use and Psychosis',
Drug and Alcohol Review, no. 17, pp. 433-44; W. Hall and
N. Solowij, op. cit.
- W. Hall, op. cit.
- A. Johns, op. cit.; W. Hall, op. cit.; W. Hall and N. Solowij,
op. cit.
- For example, J. C. Negrete, W. P. Knapp, D. Douglas, W. B.
Smith, 'Cannabis Affects the Severity of Schizophrenic Symptoms:
Results of a Clinical Survey', Psychology and Medicine,
no. 16, 1986, pp. 515-20; A. Jablensky, N. Sartorius, G. Ernberg et
al., Schizophrenia: Manifestations, Incidence and Course in
Different Cultures. A WHO Ten-Country Study. Psychology and
Medicine Monographs (supplement 20), 1991.
- S. M. Stahl, Essential Psychopharmacology, Cambridge
University Press, Cambridge, 1996.
- W. Hall, op. cit.; W. Hall and N. Solowij, op. cit.; A. Johns,
op. cit.
- V. Peralta and M. J. Cuesta, 'Influence of Cannabis Abuse on
Schizophrenic Psychopathology', Acta Psychologica
Scandinavia, no. 85, 1992, pp. 127-30; L. Dixon, G. Haas et
al., 'Acute Effects of Drug Abuse in Schizophrenic Patients:
Clinical Observations and Patients' Self Reports',
Schizophrenia Bulletin, no. 16, 1990, pp. 69-79; F. R.
Schneier and S. G. Siris, 'A Review of Psychoactive Substance Use
and Abuse in Schizophrenia: Patterns of Drug Choice', Journal
of Nervous and Mental Disorders, no. 175, 1987, pp. 641-52.
- Kathryn Elkins, 'The Cannabis and Psychosis Project', paper
presented at the International Conference on Drugs and Young
People, Melbourne, 4 April 2001.
- Wayne Hall argues that if there is such a condition, it would
be exceptionally rare. See W. Hall, op. cit.
- A. Y. Tien and J. C. Anthony, 'Epidemiological Analysis of
Alcohol and Drug Use as Risk Factors for Psychotic Experiences',
Journal of Nervous and Mental Disorders, no. 178, 1998,
pp. 473-80.
- L. E. Hollister, 'Marijuana and Immunity', Journal of
Psychoactive Drugs, no. 24, 1992, pp. 159-64.
- W. Hall, N. Solowij and J. Lemon, op. cit. While some studies
show that high doses of THC can reduce fertility in animals, the
evidence relating to humans is limited and inconsistent. However, a
recent study at the Eastern Virginia Medical School has been
reported showing decreased fertility in human males and females in
connection with THC. (Sydney Morning Herald, 16 December
2000, p. 3).
- B. Zuckerman, D. Frank, R. Hingson et al., 'Effects of Maternal
Marijuana and Cocaine Use on Fetal Growth', New England Journal
of Medicine, no. 320, 1989, pp. 762-8. But again, there is
conflicting evidence, and methodological questions about the
compounding impacts during pregnancy of other factors such as
undisclosed drug use (smoking, alcohol, other illicit drugs), as
well as the fact that chronic illicit drug users typically differ
in education and nutrition. See W. Hall and N. Solowij, op. cit.
- P. A. Fried, 'Behavioural Outcomes in Pre-school Aged Children
Exposed Prenatally to Marijuana: A Review and Speculative
Interpretation', in C. L. Wetherington et al., eds, Behavioural
Studies of Drug Exposed Offspring: Methodological Issues in Human
and Animal Research, NIDA Research Monograph 164, US
Government Printing Office, Washington DC, 1996; P. A. Fried,
'Prenatal Exposure to Tobacco and Marijuana: Effects During
Pregnancy, Infancy and Early Childhood', Clinical Obstetrics
and Gynecology, no. 36, 1993, pp. 319-36.
- P. A. Fried, op. cit.
- Though not as severe as opiate or alcohol withdrawal. D. R.
Compton, W. L. Dewey and B. R. Martin, 'Cannabis Dependence and
Tolerance Production', Advanced Alcohol and Substance
Abuse, no. 9, 1990, pp. 128-47.
- G. A. Weisbeck, M. A. Schuckit et al., 'An Evaluation of the
History of Marijuana Withdrawal Syndrome in a Large Population',
Addiction, no. 91, 1996, pp. 1469-78.
- J. C. Anthony, L. A. Warner and R. C. Kessler, 'Comparative
Epidemiology of Dependence on Tobacco, Alcohol, Controlled
Substances and Inhabitants: Basic Findings from the National
Comorbidity Study', Clinical and Experimental
Psychopharmacology, no. 2, 1994, pp. 244-68.
- W. Hall, M. Teeson, M. Lynskey, and L. Degenhardt, 'The
Prevalence in the Past Year of Substance Use and ICD-10 Substance
Use Disorders in Australian Adults: Findings from the National
Survey of Mental Health and Well-being', Addiction, no.
94, 1999, pp. 1541-50.
- W. Hall, N. Solowij and J. Lemon, op. cit.
- F. S. Tennant, and C. J. Groesbeck, 'Psychiatric Effects of
Hashish', Archives of General Psychiatry, no. 27, 1972,
pp. 133-6.
- W. Hall, N. Solowij and J. Lemon, op. cit.
- T. Makkai and I. McAllister, op. cit.
- T. Newcombe and P. Bentler, Consequences of Adolescent Drug
Use: Impact on the Lives of Young Adults, Sage Publications,
Newbury Park, California, 1988.
- D. Fergusson and J. Horwood, 'Early Onset Cannabis Use and
Psychosocial Adjustment in Young Adults', Addiction, no.
92, 1997, pp. 279-96; T. Newcombe and P. Bentler, op. cit.
- M. Krohn, A. Lizotte and C. Perez, 'The Interrelationship
Between Substance Use and Precocious Transitions to Adult
Statuses', The Journal of Health and Sociol Behaviour, no.
38, 1997, pp. 87-103; D. Fergusson and J. Horwood, op. cit.
- M. T. Lynskey, 'Cannabis Use Amongst Youth' in P. Dillon, W.
Swift and L. Topp, eds, Illicit Drugs: Current Issues and
Responses, Monograph no. 7, National Drug and Alcohol Research
Centre, 1997; D. Fergusson and J. Horwood, op. cit.
- J. Schedler and J. Block, 'Adolescent Drug Use and
Psychological Health', American Psychologist, no. 45,
1990, pp. 612-30.
- K. Yamaguchi and D. B. Kandel, 'Patterns of Drug Use from
Adolescence to Adulthood: II-Sequences of Progression',
American Journal of Public Health, no. 74, 1984, pp.
668-72; D. Kandel, E. Single and R. Kessler, 'The Epidemiology of
Drug Use Among New York State High School Students: Distribution,
Trends and Changes in Rates of Use', American Journal of Public
Health, no. 66, 1974, pp. 43-53.; D. B. Kandel, K. Yamaguchi
and K. Chen, 'Stages of Progression in Drug Involvement from
Adolescence to Adulthood: Further Evidence for the Gateway Theory',
Journal of Studies on Alcohol, no. 53, 1992, pp. 447-57;
N. Donnelly and W. Hall, Patterns of Cannabis Use in
Australia, National Drug Strategy Monograph Series no. 27,
Australian Government Printing Service, Canberra, 1994.
- The figure is 96 per cent in Australia, based on 1993 National
Household Survey Data. See N. Donnelly and W. Hall, op. cit. In
Amsterdam, 75 per cent of cannabis users do not report use of other
drugs (based on 1990 and 1994 data). See P. Cohen and A. Sas,
Cannabis Use. A Stepping Stone to Other Drugs? The Case of
Amsterdam, Centre for Drug Research, University of Amsterdam,
1998.
- And of those who do, few become regular hard drug users and
even fewer addicts. See R. MacCoun, 'In What Sense (if any) is
Marijuana a Gateway Drug?', The FAS Drug Policy Analysis
Bulletin, issue 4, February 1998, http://www.fas.org/drugs/issue4.htm#gateway
- N. Donnelly and W. Hall, op. cit. estimate that they are 30
times more likely to use heroin, than those who have never used
cannabis.
- S. Lenton, P. Heale, P. Erickson, E. Single, E. Lang and D.
Hawks, The Regulation of Cannabis Possession, Use and
Supply, National Drug Research Institute, 2000, p. 181.
- See E. Single and D. Kandel, 'The Role of Buying and Selling in
Illicit Drug Use', in A. Treibach ed., Drugs, Crime and Public
Policy, Praeger, 1978, pp. 118-28.
- Based on data from the 1993 National Household Survey. See N.
Donnelly and W. Hall, op. cit.
- Hall adds that it still remains to be determined whether this
unexplained association is due to the operation of some factors
such as a genetic vulnerability to become dependent on a variety of
different drugs.
- It is important to note here that the issue of whether cannabis
should be made available for specifically medically controlled uses
is distinct from that of how its general availability should best
be controlled or regulated.
- P. Robson, Therapeutic Aspects of Cannabis and
Cannabinoids, British Journal of Psychiatry, no. 178, 2001,
pp. 107-15.
- Capsules of synthetic THC have been available for restricted
medical use in the USA (as Dronabinol) since 1985. Similarly,
Nabilone another THC synthetic has been licensed for prescription
in the UK for treatment of nausea and vomiting.
-
http://news.bbc.co.uk/hi/english/health/newsid_1234000/1234220.stm
- NSW Government, Report of the Working Party on the Use of
Cannabis for Medical Purposes, 2000.
- The Sydney Morning Herald, 16 May 2001, p. 3.
- Department of Human Services, Drug Policy Expert Committee,
2000, Drugs: Meeting the Challenge, http://www.dhs.vic.gov.au/phd/dpec/stagetwo/execsumm.pdf
- Australian Bureau of Criminal Intelligence, The Illicit
Drug Report 1998-99, 2000.
- S. Lenton et al., op. cit.
- W. Loxley, 'Cannabis, Amphetamines and the Risk of Blood-borne
Diseases Among Injecting Drug Users in Perth', Paper presented at
the AMPSAD Annual Conference, Sydney, 1993.
- S. Maddox and S. Williams, 'Cannabis-related Experiences and
the Rate of Cultivation: Would They Change Under a Policy of
Decriminalisation?', Drugs, Education, Prevention and
Policy, no. 5, 1998, pp. 47-58.
- S. Lenton, M. Bennett and P. Heale, The Social Impact of a
Minor Cannabis Offence Under Strict Prohibition-The Case of Western
Australia, Curtin University of Technology, National Centre
for Research into the Prevention of Drug Abuse, Perth, 1999.
- Among others, S. Lenton et al., op. cit. have argued this, as
have the Victorian Premier's Drug Advisory Council, chaired by
David Penington. See Drugs and Our Community, Report of
the Premier's Drug Advisory Council, Victorian Government, 1996.
- C. De Launey, 'The Real Value of a Cannabis Plant. Report on a
1995 Survey of Cannabis Crop Growers in Northern NSW.'
Alternative Law Journal, no. 21, 1996, pp. 127-30.
- It might be thought that those who rely on themselves for
cannabis, or others who grow their own, would always have a ready
supply and would consequently use it more regularly. If that were
true, there would appear more risk of developing heavier use, or at
least those who are predisposed to such use would find it much
easier to use. However, there is no substantive data concerning
this, and the ready availability of cannabis from existing
large-scale markets would suggest that users can already usually
obtain cannabis regularly if they wish.
- Alcohol and Drug Council of Australia, op. cit.; Criminal
Justice Commission, Report on Cannabis and the Law in
Queensland, Goprint, Brisbane, 1994; A. Brooks, C. Stathard,
J. Moss et al., Costs Associated with the Operation of the
Cannabis Expiation Notice Scheme in South Australia, Drug and
Alcohol Services Council, Adelaide, 1999.
- D. McDonald and L. Atkinson, op. cit.
- S. Lenton et al., op. cit.
- S. Lenton, A. Ferrante and N. Loh, 'Dope Busts in the West:
Minor Cannabis Offences in the Western Australian Criminal Justice
System', Drug and Alcohol Review, no. 15, 1996, pp.
335-41. It should be noted that WA has recently introduced a
cautioning scheme, and that the cannabis offence rate in WA has
decreased by 47 per cent between 1995-96 and 1998-99 (The
Australian Bureau of Criminal Intelligence, The
Illicit Drug Report 1998-99, 2000).
- S. Lenton, M. Bennett and P. Heale, The Social Impact of a
Minor Cannabis Offence Under Strict Prohibition-The Case of Western
Australia, Curtin University of Technology, National Centre
for Research into the Prevention of Drug Abuse, Perth, 1999.
- Eric Single, op. cit.
- Even when a conviction is not recorded for cannabis possession,
cultivation or use, the mere involvement in the criminal justice
system of people charged with these offences can have adverse
consequences for them with respect to school education and public
sector employment (even if there are no statistically significant
differences in these impacts between different legislative
approaches that involve possible contact with the criminal justice
system). Jane Christie-Johnston, The Impact of the Legislative
Options for Cannabis on School Education and Public Sector
Employment Opportunities in Australia, The Social Impact of
Legislative Options for Cannabis in Australia Working Paper no. 7,
Australian Institute of Criminology, 1997.
- Wayne Hall, for instance, argues that current use patterns
produce only small to moderate public health risks. W. Hall, 'The
Public Health Implications of Cannabis Use', Australian Journal
of Public Health, no. 19, 1995, pp. 235-42.
- This is true of overseas jurisdictions as well as Australia.
According to the US National Household Survey on Drug Abuse, 1998,
20 per cent of young adult cannabis users reported symptoms of
dependence, and three per cent were receiving treatment for it in
1998. In the US, the proportion of treatment admissions primarily
for cannabis use doubled between 1992 and 1997 from six per cent to
13 per cent (Treatment Episode Data Set, 1992-97, Office
of Applied Studies, US Federal Department of Health and Human
Services, 1999). In the European Union, cannabis is generally
reported as the main drug problem for presentation to treatment in
an average of 10 per cent of admissions. (EMCDDA, 2000, op. cit.)
In New Zealand, results from the 1998 National Drug Use Survey
indicated that approximately five per cent of all cannabis users
felt they needed some help in reducing their use. (A. Field and S.
Casswell, Drugs in New Zealand; National Survey, 1998,
Alcohol and Public Health Research Unit, University of Auckland,
June 1999.) In the Netherlands in 1996, however, only a very small
proportion of cannabis users (0.3 per cent) were treated at drug
outpatient clinics. (Trimbos Institute, 1997).
- T. Makkai and I. McAllister, op. cit. It was noted before also
that teenagers are increasingly coming to start cannabis use at an
earlier age. In 1993, 14 per cent of people surveyed indicated that
they first used cannabis at 15 years old or less, and this
increased to 18 per cent in 1995.
- W. Swift, W. Hall and J. Copeland, 'Characteristics of
Long-term Cannabis Users in Sydney, Australia', European
Addiction Research, no. 4, 1998, pp. 190-7.
- Doug Johnson, op. cit. No suggestion has been made, however, as
to the basis or explanation for this association.
- L. Trimboli and C. Coumerlos, op. cit.
- Kathryn Elkins, op. cit.
- A. Jablensky et al., op. cit.
- A number of writers have suggested criteria, conditions or
rules of thumb for analysing or measuring the acceptability of
different legislative approaches to cannabis, most notably McDonald
et al., and S. Lenton et al. The conditions specified here in the
text, although ostensibly different, arguably incorporate or imply
the central proposals of these major writers.
- Importantly, legislation can also seek to enable behaviours
that might serve to reduce cannabis harm.
- Admittedly, there are limits to how fine-grained and
discriminating the written specifications of a piece of legislation
can be in capturing just those cases of cannabis related behaviour
that will be sufficiently harmful or risky. Legislation is stated
in terms of types of activity or behaviour, but cannabis
harms are often context dependent, and it is not necessarily the
case that all instances of some type of cannabis behaviour that can
be harmful, will be harmful.
- This can depend on how serious the harm is, and how 'risk
averse' one is. Very cautious harm reduction legislators may argue
that even when the vast majority of people engaging in some
cannabis activity experience no harm, but only a very few, it is
still better, all things being equal, to restrict everyone from
engaging in the activity if this protects the few. More 'risk
tolerant' legislators will argue that coercively restricting the
harm-free activity of the great many is inconsistent with harm
reduction, and other means besides coercive restriction should be
sought to address the serious risk to the very few. Which strategy
is appropriate will depend significantly on what costs are involved
in legislating against a type of activity that is largely harmless,
and whether these costs are favourable in relation to the harms
that may be reduced by so legislating.
- This is arguably implicit in the condition stipulated by
McDonald et al. that an analysis of the effectiveness of a cannabis
control regime should not be considered in isolation from its
implementation and enforcement.
- The benefits of properly exercised police discretion when
intervening in cases of cannabis use and supply are argued for by
Adam Sutton, 'Cannabis Law and the Young Adult User: Reflections on
South Australia's Cannabis Expiation Notice System',
International Journal of the Sociology of Law, no. 28,
2000, pp. 147-62. There is a danger, however, that too much police
discretion may result in selective law enforcement, and may
potentially overstep the boundaries of executive power and stray
into judicial power.
- Informal cautioning, for example, may be used by police in
those instances they judge are not serious enough to warrant
further action.
- This may be especially beneficial for young people who might
not otherwise voluntarily access information or health services.
- Or if it took too much, or was just too difficult to
effectively police. Efficiency is related to another hallmark of
harm minimisation-effectiveness.
- E. Single, op. cit.
- Side effects can be helpful as well as harmful. For example,
the law enforcement targeting of more harmful forms of use and
acquisition/supply can provide incentives for people to shift to
less harmful forms.
- This is argued, for instance, by J. Strang and M. Farrell
'Harm-minimisation for Drug Misusers: When Second Best May be Best
First', British Medical Journal, no. 304 1992,
pp. 1127-9.
- It may be too that some harm reduction outcome is in reality
achievable, but only (or much better) through some other type of
intervention, and not law enforcement or legislation. A legislative
approach to cannabis that is harm minimising will be pragmatic in
its awareness of what it can reasonably expect to achieve, and
where its efforts are best directed (and often this only becomes
apparent in the light of experience).
- For example, see S. Lenton et al., op. cit., and S. Sutton, op.
cit.
- One useful way of focusing in on the legislative impacts is by
comparing jurisdictions which have differing legislation but
similar social, economic and cultural characteristics. Any
differences in cannabis related harms that are revealed between
those jurisdictions could then be more confidently attributed to
differences in legislative approach. Of course, the degree of
confidence will depend on the closeness of the socio-cultural
similarities in the jurisdictions being compared. The closer the
background similarities, the more 'controlled' they are in the
comparison, and the more confidence that legislation based
differences (if any) are the relevant factor. Comparisons between
legislatively different Australian states are particularly
important in this respect. Comparisons between Australia and some
overseas jurisdictions might also be instructive from time to time.
However, the latter comparisons should have less evidentiary weight
in view of the possibly lower degree of sociocultural similarity
involved.
- This issue of commensurability, and its impact on formulating
and assessing approaches to drugs is addressed in some depth in
Victorian Parliamentary Drugs and Crime Prevention Committee, op.
cit.
- This is argued by D. Hawks and S. Lenton, op. cit.
- Important as it is to acknowledge this issue of
commensurability, it should not be thought of as completely
undermining the possibility of comparing harms and the capacities
of different approaches to reduce them. As was said, there would be
wide agreement about the relative weighting of many cannabis
related harms, or at least, many of the harms central to assessing
the effectiveness of different legislative approaches.
- From the individual user's point of view, under conditions
where all cultivation is criminally prohibited it would be better
for the organised network to assume the risk of criminal penalties
for cultivation than the user. Besides that, there would be few
other sources. This is a 'perverse incentive' of the criminal
prohibitionist system, and to the extent that it might act to
increase the risks of harm to users and others, it might count as
an outcome inefficiency of criminal prohibitionism.
- S. Lenton, Cannabis Offenders in the West Australian
Criminal justice System 1994-1996, Curtin University of
Technology, National Centre for Research into the Prevention of
Drug Abuse, Perth, 1999.
- S. Lenton, A. Ferrante and N. Loh, 'Dope Busts in the West:
Minor Cannabis Offences in the Western Australian Criminal Justice
System', Drug and Alcohol Review, no. 15, 1996, pp.
335-41.
- S. Lenton et al., 2000, op. cit.
- S. Lenton, A. Ferrante and N. Loh, op. cit. It is of interest
to note also that between 1990 and 1995 in Western Australia, nine
per cent of first time arrestees for possession/use were held in
custody prior to appearing in court. This was as high as 16 per
cent in 1990.
- Including G. LeDain, Final report of the Commission of
Inquiry Into the Non-medical Use of drugs, Information Canada,
Ottawa, 1972; P. Erickson, Cannabis Criminals: The Social
Effects of Punishment on Drug Users, Addiction Research
Foundation, Toronto, 1980; P. Christie, The Effects of Cannabis
Legislation in South Australia on Levels of Cannabis Use, Drug
and Alcohol Services Council, Adelaide, 1991; S. Lenton et al., op.
cit.
- S. Lenton, A. Ferrante and N. Loh, op. cit.
- In South Australia, in particular, there has been a significant
(and unanticipated) rate of failure to expiate, which has been
counter productive to the purposes of the civil system. (More on
this under effectiveness and efficiency.)
- Some of the diversionary programs are still trials, and none
are legislatively based, suggesting they are not necessarily
permanent.
- A. Sutton, op. cit. It should be said, though, that in the ACT
police have the discretion to divert re-offenders to counselling or
rehabilitation. See J. Mundy, op. cit.
- N. Donnelly, W. Hall and P. Christie, 'Effects of the Cannabis
Expiation Notice Scheme on Levels and Patterns of Cannabis Use in
South Australia, Evidence from the National Drug Strategy Household
Surveys 1985-1995', Drug and Alcohol Review, no.
19, 2000, pp. 265-9.
- R. Ali, P. Christie, S. Lenton, D. Hawks, A. Sutton, W. Hall
and S. Allsop, The Social Impacts of the Cannabis Expiation
Notice Scheme in South Australia: Summary Report. Commonwealth
Department of Health and Aged Care, Canberra, 1999.
- E. Single, 'The Impact of Marijuana Decriminalisation: An
Update', Journal of Public Health Policy, no. 10, 1989,
pp. 456-66; P. Blachly, 'Effects of Decriminalisation of Marijuana
in Oregon', Annals of the New York Academy of Sciences,
no. 282, 1976, pp. 405-15.
- R. Johnson, Trends in the Incidence of Drug Use in the
United States, 1919-1992, Substance Abuse and Mental Health
Services Administration, Office of Applied Studies, Rockville, MD:
US Department of Health and Human Services, 1996.
- National Household Survey on Drug Abuse, Substance
Abuse and Mental Health Services Administration, Rockville, MD.: US
Department of Health and Human Services, 1999.
- L. Johnston, J. Bachman and P. O'Malley, National Survey
Results on Drug Use from the Monitoring the Future Study,
1975-1995, NHS, National Institute on Drug Abuse, Washington,
D.C., 1996.
- D. Weatherburn and C. Jones, 'Does Prohibition Deter Cannabis
Use?', Contemporary Issues in Crime and Justice, no. 58,
NSW Bureau of Crime Statistics and Research, 2001.
- S. Lenton, M. Bennett and P. Heale, op. cit.
- N. Donnelly, W. Hall and P. Christie, op. cit.
- Survey conducted by the Centre for Behavioural Research in
Cancer, 1996, reported in S. Lenton et al., op. cit.
- S. Lenton, A. Ferrante and N. Loh, op. cit.
- National Drug Strategy Household Survey 1998.
- ibid.
- ABCI, The Illicit Drug Report 1994-95, 1996, p. 29.
- Recruitment may not be so difficult, either, particularly if a
substantial financial reward is offered by the organised network,
and the only penalty upon detection for the individual grower is
$150.
- A. Sutton, op. cit., p. 158.
- R. Ali and P. Christie, Report of the National task Force
on Cannabis (National Drug Strategy Monograph), AGPS,
Canberra, 1994.
- P. Christie, Cannabis Offences Under the Cannabis Expiation
Notice Scheme in South Australia, Commonwealth Department of
Health and Aged Care, AGPS, Canberra, 1999.
- Where a guilty plea was entered and the court appearance
privately funded (and $1982 in the case of a not-guilty plea funded
by legal aid). Criminal Justice Commission, Report on Cannabis
and the Law in Queensland, Goprint, Brisbane, 1994. The
estimated cost of issuing a civil infringement notice for the same
sort of offence in 1999 was $32.73. P. Christie, op. cit.
- ABCI, The Illicit Drug Report 1997-98, op. cit.
- S. Lenton, M. Bennett and P. Heale, op. cit.
- This was argued in Drugs and Our Community, Victorian
Premier's Drug Advisory Council, Victorian Government Publishing
Service, 1996.
- Particularly among some sections of the police force in SA, and
other states. The 7.30 Report, 16 May 2001.
- W. Hall, N. Solowij and J. Lemon, op. cit.
- R. Humeniuk, A. Brooks, P. Christie, R. Ali and S. Lenton,
Social Impacts and Characteristics of Offenders Under the
Cannabis Expiation Notice Scheme in South Australia, Drug and
Alcohol Services Council, Adelaide, 1999. Also, R. Sarre, A. Suton
and T. Pulsford, Cannabis, The Expiation Approach,
Attorney-General's Department, Adelaide, 1989.
- A. Sutton, op. cit., p. 155.
- ibid.
- A. Sutton and E. McMillan, A Review of Law Enforcement and
Other Criminal Justice Attitudes, Policies and Practices Regarding
Cannabis Laws in South Australia, Commonwealth Department of
Health and Aged Care, Canberra, 1999.
- S. Lenton et al., op. cit., have recently made another proposal
that seeks to by-pass some of the difficulties of the civil system,
particularly in relation to supply and the separation of markets.
The proposal recommends that the supplying of small amounts of
cannabis should attract only civil penalties rather than criminal
ones.
- See, for example, A. Wodak and R. Owens, Drug
Prohibition: A Call for Change, University of New South
Wales Press, 1997.
- PDAC, 1996, op. cit., recommendations 7.1, 7.2. and 7.3, 7.8.
It was also proposed that previous convictions for possession and
use of cannabis be expunged. Despite recognising that there had
been no evidence to change views, the (Penington chaired) Drug
Policy Expert Committee did not recommend any changes to existing
Victorian law in its 2000 report.
- Even if all cannabis use was harmful to the user, there is
still question (in liberal democratic societies at least) as to
whether the law should really be in the business of deterring
self-harm. For one of the first, and perhaps most compelling,
discussions of this view, see John Stuart Mill's essay, On
Liberty.
- R. MacCoun and P. Reuter, 'Evaluating Alternative Cannabis
Regimes', The British Journal of Psychiatry, no. 178,
2001, pp. 123-8.
- ibid.
- ibid.
- W. Hall, 'Reducing the Harms Caused by Cannabis Use: The Policy
Debate in Australia', Drug and Alcohol Dependence, no. 62,
2001, pp. 163-74.
- D. Weatherburn and C. Jones, op. cit.
- Mert Daryal, 'Prices, Legalisation and Marijuana Consumption',
Economic Research Centre, Department of Economics, University of
Western Australia, 1999.
- R. MacCoun and P. Reuter, op. cit.
- A summary of Australian state legislation relating to illicit
drugs can be found at: http://www.aic.gov.au/research/drugs/context/legislation.html
- Drugs, poisons and Controlled Substances Act 1981.
- Section 76 of the Drugs, Poisons and Controlled Substances
Act 1981.
- L. Atkinson, 'Cannabis, Law Enforcement and the Criminal
Justice System: an Overview of Five Jurisdictions', in D. McDonald
and L. Atkinson, op. cit. (cited in S. Lenton et al.).
- Drug Misuse and Trafficking Act 1985.
- Jane Mundy, 'Cannabis Cautioning', Connexions,
August-October 2000, pp. 18-23.
- L. Atkinson, 1995, op. cit.
- A Bill allowing for Dutch-style 'cannabis cafes' in NSW is also
to be introduced in the NSW Parliament by the NSW Greens MLC Lee
Rhiannon.
- Misuse of Drugs Act 1981.
- Drug Misuse Act 1986.
- Jane Mundy, op. cit.
- Controlled Substances Act 1984.
- In South Australia, minors cannot be dealt with under CENS.
However, they may be subject to formal and informal cautioning,
family conferences, or referrals to the Youth Court under the
Young Offenders Act 1993.
- Until 1999, the plant limit in SA had been 10, but this was
reduced by the SA government because of concerns that organised
10-plant growers were forming consortiums and exporting cannabis on
a large scale to other Australian states.
- The Controlled Substances Act states that a
prosecution is not invalidated if a CEN is not issued. Also, some
offenders and offences are excluded from the CENS. For instance,
minors cannot be issued with a CEN, and the definition of 'simple
cannabis offence' excludes offences that are committed in public
places, or offences involving cannabis oil.
- Drugs of Dependence Act 1989.
- Drugs of Dependence Act NT 1990.
- Though, it is suggested by some that treaty proscriptions
concerning cannabis are aimed primarily at large-scale trafficking,
and not small quantity individual use. See, for example, New
Zealand Drug Policy Forum, Alternative Systems of Cannabis
Control in New Zealand, July 1997. Also, see the Commonwealth
Attorney-General's Department submission to the Queensland Criminal
Justice Commission, 24 February 1994. Article 3.2 also qualifies
its suggestion of criminalisation by words like 'subject to (a
country's) constitutional principles and basic concepts of its
legal system'.
- European Monitoring Centre on Drugs and Addiction (EMCDA),
2000.
- Christopher Gatto, 'European Drug Policy: Analysis and Case
Studies', 1999, http://www.norml.org/laws/european_policy.shtml
- DrugNet Europe, no. 28, The Bimonthly Newsletter of
the European Monitoring Centre for Drugs and Drug Addiction,
March-April 2001.
- P. Ford, 'Europe Shifts out of Drug War Mode', Christian
Science Monitor, March 2001.
- S. Lenton et al., op. cit.
- J. Jepsen, 'Copenhagen: A War on Socially Marginal People', in
N. Dorn, J. Jepsen and E. Savona, eds, European Drug Policies
and Enforcement, Macmillan, London, 1996.
- S. Lenton et al., op. cit.
- Tim Boekhout van Solinge, 'Cannabis in France', in Lorenz
Bollinger, ed., Cannabis Science. From Prohibition to Human
Right, Peter Lang GmbH, Frankfurt am Main, 1997.
- C. Gatto, op. cit.
- P. Ford, op. cit.
- The Lindesmith Center, Drug Policy Foundation, 'De Jure and De
Facto Regulation of Cannabis: A Selection of Current Policies
Around the World',
http://www.soros.org/lindesmith/library/proceedings/ca.../world_cannabis_policies2.htm
- P. Ford, op. cit.
- The Lindesmith Center, op. cit.
- C. Gatto, op. cit.
- S. Lenton et al., op. cit.
- Helena Bachman, 'Just Say Yes: The Swiss Move to Legalise the
Cultivation, Sale and Consumption of Marijuana', Time Magazine
(US), 16 March 2001.
- C. Gatto, op. cit.; The Lindesmith Center, op. cit.
- S. Lenton et al., op. cit.
- The Lindesmith Center, op. cit.
- ibid.
- Oregon (1973), Alaska (1975), Maine (1975), Colorado (1975),
California (1975), Ohio (1975), Minnesota (1976), Mississippi
(1977), New York (1977), North Carolina (1977), and Nebraska
(1978). In 1990 Alaska recriminalised cannabis possession, but is
currently considering a referendum to legalise hemp.
- S. Lenton et al., op. cit., (citing A. DiChiara and J. F.
Galliher, 'Dissonance and Contradictions in the Origins of
Marujuana Decriminalisation', Law and Society Review, no.
28, 1994, pp. 41-77.)
- Chuck Thomas, 'Marijuana Arrests and Incarceration in the
United States: Preliminary Report', Marijuana Policy Project, 1998,
http://www.mpp.org
- The Lindesmith Center, op. cit.