CHAPTERVII
PATHS FORWARD FROM THE IMPASSE
By an accident of history, cannabis was included in the international drug control regime that was constructed in the course of the 20th century. The final step was a complete prohibition on cannabis use under the terms of the 1961 drug convention. In an irony of history, this was shortly before rates of use of cannabis in youth cultures of developed societies took off. What had been a minor drug with use confined to a few scattered milieux in the developing world, and to some raffish and bohemian circles in a few affluent countries, soon became a symbol and carrier of the rebellion of mainstream youth cultures seeking cultural as well as political change. In country after country, youthful use of cannabis and the attempts by authorities to suppress it became a symbolic arena in which the cultural-political struggles of the 1960s and 1970s were partly fought out. The symbolic battles faded with time, but in the meantime, experimentation with cannabis had become a rite of passage for a significant fraction of those in every youth cohort since then. A substantial fraction of cannabis users have gone on to frequent use for a few years, and some to longer-term use. Rates of recent use have fluctuated in the last 40 years, but it can now be said with some confidence that cannabis is an enculturated drug, used particularly during the life stage of youthful exploration and emancipation, in a large number of rich countries.
Even before the 1961 Convention, many governments had prohibited the non-medical sale or use of cannabis. The Convention pushed this process along, although not always expeditiously; for instance, it was not until 1986, with the expiration of a 25-year moratorium for customary use under the 1961 Convention, that India reluctantly outlawed the sale of many (but not all) forms of cannabis. As the wave of youthful use in the 1960s and 1970s hit developed countries, national and subnational governments responded in diverse ways. Some tried to deter use with increased penalties and more aggressive arrest policies; some reduced or eliminated penalties to reduce the widespread disregard of the law; some tried both approaches in succession or in some combination.
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After an initial round of experimentation with legal changes, the situation settled down after the 1970s in many places. In recent years, there have been further experiments with legal changes. Changes in the direction of lessening penalties have been motivated by the goal of reducing the widespread criminalization of and disadvantaging of those youth who are caught up in the cannabis prohibition laws. Changes in the other direction, increasing penalties, have been motivated primarily by arguments that adverse health consequences of cannabis have been underestimated or are increasing, perhaps as the result of increased potency.
The international drug control conventions have served as a limit on the outer boundary of policy initiatives on decriminalization and legalization. No country which acceded to the Conventions has ever withdrawn from them. To our knowledge, no country has legalized the growing, processing or wholesaling of cannabis, except in restricted circumstances as a medication. The Swiss authorities have moved in this direction at least twice, but so far it has proved politically impossible. No country has formally legalized retail sale, although the Netherlands has done so in a de-facto way, to the continuing displeasure and disapproval of its neighbours and the guardians of the international drug control system. Numerous instances can be found where policy initiatives on cannabis were restrained by appeals to the international conventions. In the meantime, we have cited evidence that the international control system has become more rigid and impervious to change; there is frequent reference to the argument that any relaxation of the status quo would “send the wrong message”.
As it currently exists, the international cannabis prohibition regime by its nature and functioning imposes substantial personal and social harms. At the personal level, criminal and other penalties for those who are caught participating in the cannabis market often impose a heavy burden, not only on those caught but also on those close to them. This is obviously true for those who are punished for participating in the commercial production and distribution of cannabis. In some areas, such as parts of rural Canada and Morocco, a quite substantial part of the population is involved in cannabis production and thus is at risk of substantial personal harms. The burdens on the much broader group who are punished for
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possession or use of cannabis are also sometimes substantial. Very few people arrested for cannabis possession in the United States are sentenced to jail for that offence, but many of them will in fact spend time in jail during the pretrial procedures. The comparisons in the Australian studies of the effects of depenalization show convincingly the broad range of adverse effects of convictions for cannabis possession or use on the user and the family.
Recent trends show increases in arrests for cannabis possession or use in many jurisdictions. The causes of this increase are not well understood because use has been stable or even declining in many of the same countries, but, by their nature, such arrests increase the adverse effects of policy at the personal level. Even in jurisdictions which have moved to mitigate the effects of arrest, there has been, to a greater or lesser extent, what criminologists call “net-widening”: more people have been caught up in the enforcement net, even if they suffer less serious consequences on average. At a personal level, the trend seems to be an increase in the adverse effects of the international prohibition regime in the face of steady or declining use. At a societal level, the illegality of the cannabis market imposes substantial adverse effects in a number of countries. It is often argued that widespread disregard of a particular law, such as the prohibitions on cannabis, creates disrespect for the law more generally. This is a plausible conjecture that remains to be tested. A law which criminalizes a profitable market linked with consensual behaviours, when widely flouted, often becomes a focus for official and police corruption. Impressionistically, there seems to be an upward trend also in these adverse effects at the societal level. A half-century after the adoption of the 1961 Convention, and forty years on from the initial rise in global cannabis use, it is time for policymakers to re-examine the status quo on control of cannabis and the premises on which the policy rests. What we have tried to assemble in this book is evidence and knowledge which would be helpful to anyone prepared to undertake such a re-examination.
On the question of adverse health effects of cannabis, our review shows that the evidence base has become stronger in recent years. There are clear health harms from cannabis use. A driver who is high on cannabis is at increased risk of a traffic crash. Smoking cannabis probably increases the risk of respiratory disorders.
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Regular users risk developing dependence on the drug -- difficulty in cutting down or quitting. Among the complex interactions between cannabis use and mental disorders, cannabis use seems to increase the risk of showing psychotic symptoms.
Clearly, in some markets the cannabis sold has become stronger in terms of THC content in recent years. For a naïve user, this may be problematic, although it is virtually impossible to die of overdose (with only 2 recorded deaths worldwide). For a smoker who is seeking a particular state of intoxication, and titrates the dose accordingly, some have argued that stronger cannabis is actually less harmful to health, since the intake of potentially noxious combustion products is reduced. More rigorous assessments are needed of causes and consequences of increased THC content, and indeed, of changes in the THC:CBD ratio in modern cannabis.
The health harms from cannabis are clearly sufficient to justify substantial regulation on its marketing and availability. And it is important that the risks of health harms from cannabis use are communicated to users. On the other hand, public policy should take into account the relative risks in comparison to other common behaviours that carry some risk. In this comparative context the risks are on the low side. For instance, the health harms associated with both tobacco and alcohol use are clearly greater than those associated with cannabis.
Our analyses considered the available evidence on the effects of criminal regimes on cannabis use and problems. At the level of criminalization of production and wholesaling, there is little evidence on the effects of changes in laws, since there has been little experimentation in this area in recent decades. However, it is clear that the prohibition of cannabis production and marketing, accompanied by moderately intrusive enforcement, has not succeeded in destroying the market. In fact, large markets for cannabis flourish in all regions of the world, and perhaps particularly in more affluent countries.
At the level of criminalization of use and possession, there is considerable evidence from a variety of legal changes aiming to ameliorate adverse effects of a regime of fully criminalized use and possession. Fairly consistently, the finding has been that changes in penalties for use have little effect on rates of use, or on problems arising from effects of the drug. In general, the attempt at deterrence of use or
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possession through criminal laws has failed to deter use, although it may reduce the frequency and duration of use.
The findings in this area carry immediate implications for policy. A major consideration in debating proposed changes in cannabis use and possession laws is often the issue of “the message it will send” to take some particular action. The policy impact literature suggests that politicians should stop worrying about this. Their actions in this area seem to have little effect on the behaviour in question. By contrast, their actions can certainly affect the adverse social consequences arising from the law and its enforcement.
In our report, we considered the options for moving beyond the status quo of the international cannabis prohibition regime. A number of options have been implemented in one or another jurisdiction for depenalizing or otherwise reducing the adverse effects of criminalization of use and possession. In several cases the effects of these measures have been evaluated. It is clear that removing penalties for use and possession from the criminal law, and reducing them to a minimum, can have beneficial effects in reducing the adverse effects of criminal penalties on the user and those close to the user. But there is also a clear warning in the evaluation studies that, if such measures retain penalties for use and make it easier for police to enforce them, the result can be “net widening”, that is, an increasing number of persons, particularly the more disadvantaged, become caught up in legal enforcement systems.
As we have noted, the evidence from these evaluation studies is that removing or reducing penalties for use or possession appears to have little effect on rates of use. Reducing use and possession penalties to a minimum, without creating a situation which encourages enthusiastic police enforcement of the reduced penalties, thus seems a minimum step forward towards more rational cannabis policies.
A further step forward which some argue still stays within the regime of the Conventions is exemplified by the Dutch “coffee shop” system. This de-facto legalizes use and possession, and indeed retail sale, under carefully controlled conditions. However, this option does not solve the “back-door” problem, the fact
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that production and supply to the coffee shops remains formally illegal. This has probably diminished the attractiveness of this solution to other countries. An option which has not been explored is whether the systems of state-sanctioned cannabis shops in India offer any models for application elsewhere.
The other policy options which we have explored involve moving beyond the constraints of the existing Conventions. There are two primary ways in which this can be done. A state can simply denounce (i.e., withdraw from) the Conventions with respect to cannabis. The most likely way to do this for cannabis alone, without disturbing the state’s adherence to the Conventions for other drugs, would be to withdraw from the 1961 Convention, and immediately reaccede to it with cannabis-specific reservations. As we have discussed, this path is not without potential brambles along the way, but is probably the most efficient and least politically problematic way of a state acting alone to move to handling cannabis production and sale with a system of regulatory controls.
The second possible way is for a likeminded group of states to adopt a new convention on cannabis control. Again, there are potential brambles, but generally the rule of a later treaty taking precedence over an earlier one would apply to the dealings of states that adopted the new convention with each other and in their internal markets. The states adopting the new convention would be spared the onus of withdrawing from the 1961 Convention, although they would continue to have obligations under the 1961 Convention concerning their dealings with states which stayed outside the new convention, for instance by controls on trade with those states.
Fifty years after the adoption of an unequivocal international prohibition on cannabis in the Single Convention on Narcotic Drugs, we face a very different world. The set of international rules and norms which were adopted then have not proven effective in the modern world and they have adverse consequences for those who get caught up in their provisions. Effectively the conventions restrict the ability of signatory countries to adopt cannabis policies and laws which are driven by evidence. Further, in doing so they also restrict the accumulation of evidence to inform the development of new systems of control which may be more appropriate
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to the modern world. There is a clear need for change, and yet the international drug control system seems increasingly paralyzed and immobile. There is no question that moving forward will be difficult. But it is not impossible. In this report, our aim has been to draw on the available evidence to offer some possible paths forward.