Chapter 7 MARIJUANA USE AND CRIMINAL SANCTIONS: A TRANSATLANTIC DEBATE*

*The correspondence recorded in this chapter was exchanged during the fall and winter of 1977. Although my correspondent held an official position at the time, he was writing entirely in a personal capacity. Naturally his views should not be taken as reflecting those of the British Government.

During 1977, while conducting the research reported in chapter 6, I had the privilege of meeting and discussing the decriminalization issue with a British lawyer. Our discussions triggered an exchange of correspondence which highlighted some disagreements concerning the meaning of criminal sanctions as well as the practical consequences of decriminalization.

During our initial discussions, I argued that a criminal sanction for consumption-related behavior was not an essential ingredient of a policy aimed at discouraging and containing use of marijuana. To summarize the argument which I made in chapters 2 and 3: prohibition of commercial availability—restricting supply—is the major "general" preventive tool, because of its deterrent and symbolic effects ; conversely, the incremental preventive effect of a prohibition of, and criminal penalty for, consumption-related behavior is slight and is more than offset by its enforcement costs ; finally, even if the symbolic and deterrent effects of a prohibition were considered significant, they could be captured through a non-criminal penalty—a scheme which would eliminate the costs associated with criminalization of the user.

In response to these contentions, my colleague wrote :

I recognise the force for your argument, but I fear I still find it difficult to accept. My first point concerns the relationship of supply and demand in connection with the suppression of a substance such as cannabis. I think we were agreed that the only really effective method of control was to limit availability as much as possible by effective enforcement measures at the supply end.

In the context of penal philosophy, however, this means that supply offences must be treated seriously in terms of the penalties available. The difficulty is that we know so little about the relationship between supply and demand in this market. Undoubtedly the size of the market is enlarged by promotional supply efforts. At the same time, I believe that part of the supply is prompted by the existence of a demand. It is an over-simplification therefore to treat supply offences as serious and demand offences as venial if one is looking at this only in terms of a single set of criteria. An analogy can be drawn with prostitution. Here, the only offence is committed by the supplier and none is committed by the client. There is, however, a very strong strain of thought which regards this as an unsatisfactory feature of the law and that justice requires that the client should be penalised as heavily as the supplier.

I recognise, however, that there may be a separate order of argument, to the effect that, however seriously demand and supply offences should be treated if availability is to be reduced as far as possible, the effect of doing so in the case of demand offences is disproportionately severe. If we accept this argument, I think it is essential to recognise that the policy it enshrines is quite a different one from the policy which leads to the provision of severe penalties in relation to supply offences. Now, it may be acceptable to the legislator to recognise that there are two quite different orders of principle which meet in this situation and dictate different solutions. I doubt, however, whether an argument of such sophistication will be understood by the community; the apparent illogicality of the situation will be bound to lead to continuing dissatisfaction.

Similarly, I still hesitate to accept that the idea of a civil penalty is really understood by the community or serves a useful purpose. I suspect that the public continue to regard activities in much more black and white terms. If they think that an activity ought to be unlawful, they are unlikely to draw much of a distinction between a civil and a criminal penalty. This is not, of course, an assumption that I am in a position to substantiate. There is, however, some interesting recent work in Canada which I think goes some way to lend some support to my thesis. To my friend's letter, I responded :

I agree entirely with the points you make in the first paragraph. However, I do not think it follows, as you suggest in the next paragraph, that considerably reduced penalties for consumption-related behavior would be inconsistent with an overall policy objective of restraining and containing consumption. In my view, even if we choose to invoke the law, specifically prohibitory law, to contain demand through its preventive and deterrent functions, we still must decide what the "right" sanction is ; and the principle of "parsimony" (see N. Morris, The Future of Imprisonment) or "humanitarianism" (N. Walker, Sentencing in a Rational Society) demands that we select the least stringent sanction which is consistent with the declared objective. To put it another way, society should impose no more suffering, through the imposition of criminal penalties, than is necessary to contain the objectionable behavior within tolerable limits.

As I acknowledged in London, assessing of the efficacy of different penalties is a speculative task ; however, I am persuaded that the preventive (both symbolic and deterrent) effect of a less severe sanction for consumption-related behavior would be roughly similar to that of your current penalty scheme. Consumption-related behavior is currently classified as an indictable offense punishable by significant terms of imprisonment, especially if the offense is tried in the Crown Court. Despite such threatened penalties, however, consumption continues to increase (although at a somewhat slower rate than in the United States). Thus, the moral underpinning of the criminal prohibition continues to dissipate despite the seriousness of the threatened penalties ; and, the credibility of the threatened penalties also wanes because the police forego arrest in many cases and the courts routinely forego the imposition of the threatened penalties, especially imprisonment. In sum, consumption patterns should remain substantially the same if imprisonment were not threatened for the offense (whether it was a first or subsequent offense) and if certain procedural reforms, such as the use of fixed penalty notices and police cautions, were encouraged. (I will concede that, at the present time, a substitution of some type of noncriminal sanction for the current penalty scheme might result in a significant increase in consumption because such a precipitous drop in penalties might be misinterpreted as a precursor to legalization and might undermine the discouragement policy. As in the United States, I think it makes more sense to reduce the penalty gradually so that an otherwise meaningless reduction does not communicate unintended messages and thereby contribute to an increase in the disapproved behavior.)

Thus far, I have been arguing that, under current patterns of consumption, the "benefits"—in terms of an overall policy objective of containment—of the present penalty scheme could be achieved with less severe sanctions. But suppose I concede that reducing the penalties might generate an increase in consumption. I would still contend that consumption would remain within tolerable boundaries no matter what sanction was substituted, so long as the offense was itself punishable. A continuing prohibition of distribution, in and of itself, contains the level of consumption within tolerable boundaries by making the drug difficult, costly and inconvenient to obtain. And because use would still be "against the law" society continues to communicate the explicit message that the conduct is to be discouraged.

But let me move on to the next point. I also think it is legitimate to look at the price that society pays in order to extract whatever differential deterrent is attributable to the higher penalty scheme. Surely you will agree that at some point the adverse consequences of a particular penalty scheme "outweigh" its deterrent benefits, for otherwise the penal law would always err on the side of maximum penalties. In the present case, concerns about misallocation of law-enforcement and judicial resources are self-evident. So, too, are the concerns about actual injustices which may be perpetrated upon individual offenders (in terms of prosecutorial and sentencing disparities) which occur precisely because the law is so widely violated. But, to me, the most compelling argument is that the perpetuation of the current penalty scheme engenders a disrespect for the law (especially when it is under such public attack) and, over the long term, widespread disobedience will undermine the habituative value of the criminal sanction itself. It seems to me that this is the ultimate question: in the long view, are the speculative benefits of the present penalties for cannabis possession sufficient enough to justify the considerable risk that the overall preventive effect of the criminal law will be undermined through widespread disobedience and recurrent public claims of injustice and unfairness?

I do not think that acceptance of my arguments would "enshrine" a policy which is "quite a different one from the policy which leads to the provision of severe penalties in relation to supply offenses." I am urging that the same policy be pursued—containing cannabis use (and thereby, presumably, minimizing the adverse effects of consumption on the public health, safety and morals) at a tolerable level with the least compromise of other socially-important interests.

Nor do I think it is correct to say that the public would not appreciate the penal policies which lead to a significant differential between trafficking penalties on the one hand and consumption penalties on the other. Your concerns about public understanding merely emphasize the importance of careful explication of the reasons for any change in the law by responsible public officials. In the United States, for example, the crucial factor in generating public acceptance of the "decriminalization" reforms has been the endorsement by police and prosecutorial agencies and by respected conservative political figures. By couching their support in terms similar to the position which I have taken above, official spokesmen have reinforced the view that this is not a radical departure from current policy, but only a "fine tuning" to adjust to patterns of consumption which have already changed and to take into account a more realistic assessment of the effects of cannabis use on the user and on society. The message is clear: "We want to discourage use of the drug ; we intend to maintain a prohibition of availability ; the drug is still contraband and subject to seizure ; and consumption-related behavior still remains punishable ; but it is not necessary, in either the short run or the long run, to put people in jail or even to stigmatize them, inhibiting their social and economic mobility, simply because they choose to smoke the drug despite our efforts to keep it from them and discourage them from consuming it."

I should make one final point also. Thus far, I have been making a thoroughgoing utilitarian argument—looking first at the social benefits of alternative sanctioning schemes, and then, quickly, at some of the adverse social consequences of enforcing those schemes. But even if we take a retributivist approach, I think a strong case can be made for less serious sanctions solely on the ground that the current sanctions violate the principle of proportionality. I do not have an intimate familiarity with your penal code, but I am certain that many of the non-indictable offenses—and even the non-imprisonable ones—are "more serious" than simple possession of cannabis. I do not want to canvass in this letter the many ways in which we might evaluate the relative seriousness of different behaviors ; but I do think that public perceptions are important. Many surveys of public opinion and attitude indicate that a substantial segment of the informed public (perhaps even a majority) would agree that imprisonment is disproportionate to the seriousness of the offense. Whether measured against some scale of objective "social harm" criteria, or in terms of public attitudes, smoking cannabis is hardly more serious than using alcohol or tobacco in a prohibited place, engaging in disorderly conduct, or, perhaps, making obscene comments in public or engaging in other offensive conduct.

To my letter, my friend responded :

I have no real quarrel with the principle of "parsimony." The only difficulty is to relate it to the English system, under which we give very wide discretion to the courts ; with rare exceptions we impose only maxima, leaving the courts complete discretion to decide, within those maxima, what sentence is appropriate to the circumstances of the particular offence and offender. These maxima have regard to the worst case, however rare it may be. The principle of "parsimony," is therefore rather one which, under our system, has to be exercised by the individual court, and the statistics will show how far this applies.

Your next paragraph makes me wonder whether there are greater differences between American and English practice than I had realised. You refer to the police "foregoing" arrest. I am not sure whether you mean that arrest itself is regarded as part of the sanction, or whether you are only saying that the police initiate fewer criminal proceedings. In England, whether a case begins by arrest and detention in custody, or by the service of a summons, depends very much on the circumstances. In our situation arresting practice does not, I believe, have any relevance to the question of penalties and the nature of the offence. Somewhat similar considerations apply in relation to sentencing policy. When you say that the courts forego imprisonment, we would merely take the view that they were appropriately exercising their discretion to decide the appropriate penalty.

I have some other reservations about what you say in the paragraph in question. I am rather dubious about the evidence for saying that consumption in England continues to increase. I have no figures which would either support or contradict this assertion. Our general impression, officially, is that consumption levels seem to be remaining constant, and possibly slightly declining. Secondly, even if consumption were increasing, I do not think I would accept the conclusion you appear to draw from this about the effect on the credibility of the penalties. I think the reference to the "moral" underpinning of the law introduces an unnecessary element. This is an area, where, as with traffic offences, we are dealing with something which, in the old terminology, would be regarded as malum prohibitum. I should have thought that this was essentially a field where, precisely, because the mischief is one which is not inherently immoral, the administrative arguments all favour increasing penalties if the mischief itself increases. This is certainly the policy adopted in relation to parking fines. In contrast, when offences against the person or property increase, there is never any suggestion that because this is affecting the credibility of the law, the penalties should accordingly be reduced. Where I do think you make a valid criticism, is in drawing attention to the penalties available on indictment. I suspect that we have fallen into the error of exaggerating the gravity of the worst possible offence in this category, but this exposes an interesting paradox in relation to offences of this kind. Where it may well be justifiable to reduce the theoretical maximum at the top end of the scale, it may not follow at all, that the actual sentences imposed at the lower level should be proportionately reduced. There may well be a case for movement in precisely opposite directions at the two ends of the scale.

However that may be, I find difficulty in going along with your assumption that changes in penalties, particularly those operative at the lower end of the scale, would not affect consumption patterns. The nub of my argument is that we know too little about the market, and that it is at least arguable that a substantial part of it is activated by consumer demand, rather than supplier promotion. A more lenient approach to the consumer may well increase this demand, with inevitable results on supply. Given, therefore, the propositions on which I think we are in reasonable agreement, that everything possible should be done to contain supply, my analysis leads me to believe that this is effected just as much by containing demand, as by operating on supply directly.

This leads me to the last paragraph on page 2 of your letter. I am bound to say that I think the factual situation, in so far as we can ascertain it, is so different in England from what it is in the USA, that arguments valid in one country do not apply in the other. An admittedly limited opinion poll carried out in 1975 suggests that something like 3/4 of the population (in very round numbers) continue to believe that possession of a small quantity of cannabis should continue to be an offence, punishable by penalties larger than those actually imposed by the courts. (This is an over-simplification, but I think conveys the general sense of the conclusions.) The lobby supporting legislation of cannabis continues to be a very small one, although occasionally vociferous, and represents only a minority of the population. I believe, therefore, that we are still very far from the situation in which the divergence between the facts and the law is so great as to bring the latter into disrepute. This would be my answer to the question you pose at the end of the [fourth paragraph] of your letter.

If the position were not so, and if consumption were as widespread in England as it is in some parts of the USA, then I appreciate that I would be compelled to re-evaluate my arguments. I appreciate that this would be construed as a doctrine of pure expediency, but I think this is inherent in the whole situation. In the absence of conclusive evidence about the actual damage cannabis consumption can do, the only sound basis of policy is that it is expedient that such consumption should be kept as low as possible. If that end has not been achieved then the basis of the policy by definition changes, and other considerations arise. In that event, I think it might well be that the "containment" arguments would prove to be weaker, and the arguments for avoiding unnecessary damage to individuals stronger. So long, however, as the level of consumption is kept low, then I think the arguments for maintaining this position are strong, and for doing so even at the expense of what may be regarded as disproportionate damage to individuals. It has after all to be remembered that these are offences in which individual choice can normally be freely exercised, (this may sound pompous and old-fashioned but I think the point has to be made) . It is for these reasons that I argue—and as you will see I confine these arguments to a situation like the one I believe to obtain in the UK—that the "containment" policy leads to one set of conclusions about penalties, including those for offences of possession of small amounts, and that [an emphasis on avoiding] unnecessary social harm caused by the penalties themselves leads to what may well be a different set of conclusions about those offences of possession of small amounts.

I do not think I could possibly dissent from your contention, that, whatever the policy, a full and careful governmental explanation of it is necessary. I am pessimistic, however, about it ever reaching the whole of its intended audience.

Finally, I do agree with you about your argument of "proportionality." This goes back to what I said earlier about the possibility that our maxima err when the offence is tried on indictment. I would only repeat that I think the arguments about where the top end of the scale should be pitched are rather different from the arguments about the penalties which should actually be imposed at the bottom end of the scale.

My friend had the last word in our correspondence, an exchange which I found both enlightening and challenging. However, his rejoinder should not be permitted to go unanswered, and I cannot resist invoking an author's privilege to have the final word in print.

He is right, of course, that marijuana use is not malum in se and that legislative judgments about the optimal sanction for this offense, as with other offenses which are mala prohibita, should be acutely responsive to preventive considerations. It is clear, in this connection, that we disagree about the deterrent and symbolic effects of prescribing criminal sanctions—especially imprisonment—for marijuana use, and about the likely effects of repealing such sanctions. These are empirical questions, of course, and the effects may well differ in our two countries.

He may also be right in suggesting that the "costs" of criminalization do not yet offset the presumed preventive benefits in his country because use is not as widespread or as visible as it is in the United States ; as a result, the costs of enforcement may not yet be excessive and the law may not yet have suffered the "demoralizing" effects of widespread disobedience and disrespect. Again, these are empirical questions, albeit shadowy ones.

More important, however, is our dispute about the relevance and implementation of limiting principles in penal law. He concedes that prosecuting and punishing marijuana use on indictment (up to five years' imprisonment) would be neither parsimonious nor proportionate to the relative seriousness of the offending conduct. The maximum penalties are too high. But he refuses to concede that these same principles should lead to reductions or modifications of the prescribed penalties at the "lower end." Instead he suggests that the exercise of judicial discretion, rather than legislative grading, is the appropriate mechanism for avoiding disproportionate punishment in individual cases and for assuring that punishments, in the aggregate, are parsimonious. This way, he claims, the law can extract the symbolic and deterrent benefits by grading the offense as a crime while ameliorating the consequences of criminalization in individual cases.

To this argument I would offer two lines of response. First, some room for individualized variation is ordinarily a desirable feature of a balanced sentencing system, but the primary justification for judicial discretion is to take into account differences in culpability and character among individuals who are guilty of the same offense as it is defined by the substantive criminal law. I think my friend's argument is somewhat different—that heavier penalties (incarceration) should be threatened for preventive reasons but that judges can be expected to ignore them in the effort to produce the optimal aggregate effects in cost-benefit terms. I would argue that the presumptively correct sanction should be specified by the legislature (or by some other centralized policy-making body, executive or judicial). In the absence of such direction, judicial sentencing decisions are likely to be disparate and, in the aggregate, unduly severe.

Secondly, the burden of my argument in this book is that any "criminal" penalties (involving stigmatizing purposes and effects) for consumption-related marijuana offenses violate the "limiting principle" of proportionality. This proposition is obviously culture-bound and is dependent on the social meanings of the offending behavior and of the prescribed sanctions ; however, my assumption is that our cultures are essentially similar in both respects. I think his argument would have more force if the prescribed criminal penalties were hardly ever imposed; but the data presented in the last chapter show that arrested marijuana users in the U.K. as well as the U.S. are routinely convicted of criminal offenses even though imprisonment is not often imposed, and that the available ameliorative devices of a caution (by the police) or a discharge (by the court) are rarely used. In my opinion, such non-criminal sanctions ought to be preferred and the legislature ought to say so.