DEPENALISATION is the most moderate amount reform, and involves removing jail terms from punishment options for small cannabis possession charges. Prohibition would still be in effect, but the possibility of going to jail for smoking a joint would be removed. Trading cannabis would still be illegal, and marijuana smokers would still be arrested.
MEDICALISATION means allowing doctors to prescribe cannabis to patients, but otherwise leaving prohibition unchanged. It therefore is a similar system to the way morphine is allowed on prescription but prohibited for recreational users. Medicalisation will do nothing to end the violent black market and will still see thousands of people arrested every year for using cannabis.
DECRIMINALISATION refers to less severe legal punishment for cannabis use. Penalties are reduced within the existing framework of criminal law – for example, from jail to a fine – or are replaced by regulatory or civil-law provisions (for example a ticketing offence). Some forms of decriminalisation can be explicitly written into the law (‘de jure’), while others can reflect how the law is applied through the discretion of the police and courts (‘de facto’).
Two decriminalisation models are commonly discussed. Under ‘supply prohibition’, trafficking is punished but simple possession is not. Under ‘prohibition with civil penalties’, (commonly known as ‘instant fines’) possession is punished through civil, rather than legal, provisions.
Decriminalisation models are widely used throughout the world (including most of Australia and Europe and 10 states in America), and has not been associated with any increase in cannabis use. There have been shown to be significant social benefits from not giving people criminal records, for instance loss of employment, accommodation, travel and subsequent involvement with the criminal justice system.
NORML is opposed to instant fines, as it is still prohibition under another name, but easier for the police to administer (i.e., catch more people). Instant fines will do nothing to solve problems associated with the billion-dollar cannabis black market, as it will still be illegal to buy and sell cannabis. Organised crime will continue to dominate the market.
The South Australian experience shows that under this system more people could be busted than with the current total prohibition. Arrests there climbed as police used the convenient new law to hassle more people. Poor people, who bear the brunt of drug law enforcement, can ill afford to pay huge fines.
LEGALISATION OR REGULATION means that a particular type of behaviour would not be directly controlled through the criminal law, but this does not mean that there would be no legal control over the behaviour.
All traded commodities in a modern society are subjects to some legal controls on purity, advertising, taxes and other issues. One major mechanism is the prescription system, through which both a physician and a pharmacist control access to a substance. A reduced form of this control is the requirement for some pharmacy products to be sold from behind the counter, involving only the pharmacist. Either system could possibly be adapted to control the distribution of cannabis, or a new system could be set up, such as licensing cannabis cafes in a similar way to how alcohol sales are licensed.
Regulations could take any form that society wants, but the interests of public health would suggest they should include controls on availability, quality of the cannabis, the age of purchasers and users, and the context of use. An excise tax could also be levied, both to pay for any external harms resulting from cannabis misuse, and also to maintain the price of cannabis at an appropriate level so that a reduced price does not stimulate additional demand.
Licenses could be controlled by local councils, giving them control over the way cannabis is sold in their areas, or they could be granted by a central body, or the state or local licensing trusts could hold a monopoly on cannabis sales. Outlets could be privately owned, or community owned. The Lottery Board provides a potential model where a central statutory body grants permits to operate outlets, and profits made by the central body are given back to communities and organisations in charitable grants.
INTERNATIONAL OBLIGATIONS: New Zealand is a signatory to the three main international drug treaties, namely the 1961 Single Convention, the 1971 Convention on Psychotropic Substances, and the 1988 Vienna Convention. The fundamental principle of the Conventions is that the signatories are obliged to establish control systems that prohibit the availability of and trade in controlled drugs, except in specified circumstances such as for medical purposes. However, the treaties leave open the questions of
- whether personal cannabis use and possession is included in the punitive requirements and provisions,
- whether the controls need to be ‘criminal’ in nature, and
- how exceptions to these requirements can be made, eg, in response to national constitutional principles, or for special forms of cannabis, including use for medicinal purposes.
Regulation of cannabis would not breach New Zealand’s international treaty obligations. The Single Convention (1961) states that: “2.5.b. A Party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit…” etc.
The International Narcotic Control Board (INCB) explicitly points to the fact that in terms of use and possession of controlled drugs, there is room for modified or alternative measures to punishment by the criminal law: “None of the conventions requires a party to convict or punish drug abusers who commit such offenses even when they have been established as punishable offenses. The party may deal with drug abusers through alternative non-penal measures involving treatment, education, after-care, rehabilitation or social integration” (1992:4)
1998 Inquiry into the Mental Health Effects of Cannabis report is available from Bennett’s Government Bookshops or online at http://www.gp.co.nz/wooc/i-papers/i6a-cannabis.html
1998 Drug Policy Forum report ‘New Zealand Should Regulate and Tax Cannabis’ is available online at http://www.nzdf.org.nz/dpf.htm