Alternative Systems of Cannabis Control in New Zealand: Part 1

Preface

In this discussion paper the Drug Policy Forum summarises the research literature on alternative systems of cannabis control. We analyse the relative advantages and disadvantages of each system, primarily from a New Zealand perspective. However, much of the discussion is relevant to all countries.

The Forum does not recommend a particular alternative system in this discussion paper(beyond rejecting total prohibition, which we regard as unworkable and counterproductive. Based on the submissions we receive concerning this discussion paper and on our broader consultative process the Forum will recommend a specific alternative system of cannabis control for New Zealand early in 1998.

Submissions should be sent to Drug Policy Forum Trust, PO Box 12199, Wellington, and must be received no later than 15 October 1997.

Foreword

The Drug Policy Forum Trust is a group of scientists and professionals dedicated to elevating the level of debate concerning illicit drug policy in New Zealand. We view drug use as primarily a public health issue.

Like dozens of professional bodies before us, the Forum has concluded that placing legal sanctions on the use of popular psychoactive drugs(cannabis in particular(is counterproductive and indeed harmful (although drug-induced misbehaviour causing harm to others should of course remain illegal). Whatever damage is produced by these agents, both to users and to society, is inevitably magnified by prohibition.

That this conclusion should remain controversial, even today, represents a serious failure of communication. During the past 25 years at least one governmental, academic, or scientific commission per year, on average, has concluded that a policy of total cannabis prohibition cannot be justified on scientific grounds. Most of these reports are available on the World Wide Web (www.druglibrary.org); several are described in this discussion paper. (1)

We know of no scholarly body to have endorsed cannabis prohibition as the preferred model of cannabis control. This is the case primarily because cannabis prohibition:

• Creates a lucrative and often violent black market, which preys on young people
• Impedes effective education and treatment programmes
• Increases the appeal of cannabis to rebellious young people
• Creates disrespect for the law
• Breeds police corruption
• Marginalises and oppresses young people and racial minorities, including Maori

The principal argument advanced for retaining cannabis prohibition is that repealing legal sanctions on (adult) use would lead to increased cannabis use within society, including increases in

• the number of people who use cannabis (both adults and teenagers)
• the length of cannabis-using 'careers'
• the intensity of cannabis use during those careers
• the prevalence of cannabis dependence.

These concerns are certainly worth examining; we do so in Appendix A. Based on available evidence, we conclude that any increase in cannabis use following repeal of total prohibition would (1) be small, (2) largely limited to adults, and (3) have little adverse public health impact, in part because a partial substitution of cannabis for alcohol and tobacco would likely take place.

Additional arguments commonly advanced in support of total cannabis prohibition are:

• Cannabis is a dangerous drug, therefore it must be totally prohibited.
• Removing total cannabis prohibition would increase use of hard drugs.
• Removing total cannabis prohibition would send the wrong message.
• We already have enough trouble with alcohol and tobacco, therefore we must keep cannabis totally prohibited.

None of these arguments can withstand even a modicum of scientific or logical scrutiny. Indeed, these "arguments" are little more than slogans. See Appendices A-D for a discussion of these issues.

We hope that the search for an alternative, evidence-based cannabis control policy is widely supported across New Zealand. Even impassioned anti-cannabis campaigners have acknowledged that it makes little sense to criminalise adults who wish to relax in private with cannabis rather than alcohol. The problem has been, and remains, that whereas prohibition is a simple policy ( nobody can use cannabis under any circumstances ( any other policy inevitably lends itself to shades of grey and requires that difficult lines be drawn.

Thus the challenge, as we see it, is to design a credible, detailed alternative system for cannabis control. To our knowledge, this task has not yet been attempted in New Zealand, nor has the international scientific literature concerning alternative systems been summarised here.

It is this latter summarisation task which we attempt in this discussion paper. The former task, designing a detailed alternative system, will be tackled in association with other professional bodies, based on comments received on the discussion paper and on the results of a broad consultation process, including substantial discussions with Maori.

Executive Summary

a. Systems of Cannabis Control: Terminology and Classification
b. Analysis of Cannabis Control Policies
c. International Treaty Considerations
d. Key Issues in Cannabis Control
e. Alternative Systems of Cannabis Control in New Zealand

The Drug Policy Forum Trust is a group of scientists and professionals dedicated to elevating the level of debate concerning illicit drug policy in New Zealand. In this discussion paper the Forum summarises the research literature concerning alternative systems of cannabis control. The Forum will recommend a specific alternative system of cannabis control for New Zealand early in 1998.

iii. a. Systems of Cannabis Control: Terminology and Classification

Several taxonomies of cannabis control systems have been proposed. In this discussion paper we follow the classification developed by the Australian Institute of Criminology:

• total prohibition without an administrative expediency principle
• total prohibition with an administrative expediency principle (in which the government agrees not to enforce the law under defined circumstances)
• prohibition with civil penalties for minor offences
• partial prohibition
• regulation
• free availability.

The terms "legalisation" and "decriminalisation" are avoided because of confusion regarding their meaning. The term "partial prohibition" refers to a system that legalises possession and cultivation of cannabis for personal use, but bans for-profit sale, whereas "regulation" refers to a system roughly equivalent to that used for alcohol.

iii. b. Analysis of Cannabis Control Policies

We assume that the principal goals to which a national cannabis policy in New Zealand should be directed are (1) to minimise the harmful use of cannabis and (2) to promote public health. In view of these goals, a key attribute of cannabis control policies is the extent to which policies reduce (or produce) harm to individuals and societies.

One major study of alternative policies listed nearly 50 "harms and costs" related to drug use, along with an indication of who bears the harm/cost (e.g. user, society) and the primary source of the harm (e.g., the drug itself, illegality). Harms were divided into four categories: health, social and economic functioning, safety and public order, and criminal justice. The authors concluded that the substantial majority of harms and costs associated with drug use stem from illegality and/or enforcement of the prohibition laws. However, as noted by the authors, judgment is required to assess the relative weight assigned to the various harms and costs(making it difficult to rank policies definitively according to harm produced or prevented.

The most extensive analysis of the social effects of alternative cannabis control systems was conducted by the Australian Institute of Criminology (AIC) in 1995. This study evaluated each option in the AIC's six- part taxonomy (above) along several dimensions, including: patterns of cannabis consumption, health and psychological functioning, law enforcement, crime and other legal issues, education and employment, family and community relations, and the social impact on young people. The authors concluded that, although large gaps existed in the research evidence, a policy of total prohibition generally increases harm across each dimension.

These studies imply that a cannabis control policy based on harm reduction requires removal of criminal sanctions on (at least) personal possession, ruling out a policy of total prohibition without an expediency principle (i.e., New Zealand's current policy).

Total Prohibition with an Expediency Principle
The Netherlands has since 1976 permitted the sale and purchase of small quantities of cannabis through a system of regulated coffeeshops. These activities remain technically illegal, but are tolerated by the legal- judicial system. According to current information obtained from The Netherlands' official Ministry of Health internet website, the Dutch policy has

protect[ed] young adults who wish to use soft drugs at a certain stage in their lives from the world of hard drugs has also proved to be a realistic one. Only a very small proportion of the young people who use soft drugs make the transition to hard drugs.

The extent to which a Holland-style coffee-shop model of cannabis control would suit New Zealand is an interesting and open question. The problem of "drug tourism", which has troubled Amsterdam and a few other Dutch cities, would likely be substantially less in New Zealand due to its remoteness and lack of shared borders with other countries.

Prohibition with Civil Penalties
The major advantage of the civil-fine approach is that low-level offenders would not be burdened with a criminal record. Another potential advantage lies in reducing the cost of enforcing the cannabis law. However, several years' experience in South Australia and the Australian Capital Territory has shown that such schemes have saved little or no money for the legal-judicial system, and in fact can substantially increase the number of "cannabis crimes". On the other hand, considerable savings has been demonstrated following institution of this policy in California.

The major drawback of the civil-penalty approach is that simply substituting civil penalties for criminal ones does nothing to reduce the size (and harmfulness) of the black market. The high profits available in illicit cannabis commerce would continue to draw entrepreneurs into that market.

Partial Prohibition
Partial prohibition would permit adults to possess up to a defined amount of cannabis and to cultivate up a certain number of cannabis plants. This system was recommended by the Victorian Premier's Drugs Advisory Committee in 1996 and by the Australian Institute of Criminology in 1995, primarily on the grounds that it would substantially reduce the black market and associated harms.

The extent to which partial prohibition would affect the black market and its associated harms is an important question. Experience in Alaska suggests that a substantial black market has persisted despite a policy of partial prohibition (i.e., permitting personal-scale cultivation), but the relevance of this experience to New Zealand is uncertain.

The problem of specifying limits on personal-scale cultivation is a difficult one. We discuss this question at some length, concluding that limits of between five and eight plants under cultivation at one time might seem reasonable. However, there are significant problems related to enforcement and to assuming criminal intent based simply on the number of plants under cultivation.

Regulation
Only a regulated system is highly likely to severely reduce or eliminate the black market in cannabis. By removing this important source of black market income the power of gangs over young people would in all likelihood be substantially reduced.

Additional potential advantages to a regulation approach include:

• Only via regulation can Government harness the financial power of cannabis commerce, i.e., through taxes.
• Quality and potency can best be controlled through governmental regulation.
• Regulation provides Government with substantial control over the terms of sale and related activities.

The differential impact of partial prohibition versus regulation on rural (often Maori) communities is an important, unanswered question. It is important that input be obtained from Maori communities concerning the likely effects of various systems of cannabis control on Maori health and well-being.

The major drawback to a regulated system is likely to be political. No other country has adopted a system in which cannabis is regulated and taxed like alcohol or tobacco, although the Netherlands approach comes close. Partial prohibition, on the other hand, has been tried with success in other countries. In addition, there is some concern that a regulated approach might increase the extent to which children are exposed to cannabis.

iii. c. International Treaty Considerations

The Single Convention on Narcotic Drugs 1961 is often considered a barrier to the liberalisation of cannabis policies. However, analysis of treaty commentary suggests that treaty proscriptions concerning cannabis are aimed primarily at large-scale (even international) trafficking.

Governmental commissions on cannabis control have arrived at divergent opinions on the question of whether the Single Convention requires signatory nations to ban personal use of cannabis. Most have discerned substantial flexibility in this regard. A 1994 report by the Australian Institute of Criminology took the position that only free availability is ruled out by international treaties, while the Victorian Premier's Drug Advisory Council took the position that partial prohibition (at least) was permitted under the treaties.

Our reading of this complicated literature, and of the treaties themselves, leads us to conclude that a policy of partial prohibition, as defined above, would almost certainly be considered by most authorities as being in compliance with international treaties. On the other hand, a policy of regulated commerce would find less support among a majority of authorities. Of more basic concern is the extent to which international involvements should be permitted to dictate domestic policy.

iii. d. Key Issues in Cannabis Control

Outcome Assessment
Specification of a plan for ascertaining the important outcomes of a reformed cannabis policy is an essential part of the system. These outcomes include changes in the extent of use within of cannabis and other drugs, as well as

• number and seriousness of crimes committed due to drugs or black market
• health care costs attributable to drugs (analysed by drug)
• treatment rates for various drugs
• performance in schools, including number of suspensions
• extent of child and spousal abuse
• road accident rates
• costs of police and enforcement.

Education Programmes
It is imperative that appropriate and effective education programmes be developed in conjunction with a reformed cannabis control system. As always, specialised programmes would be needed for different target audiences (e.g., adults, school children). The cornerstone of all programmes would be the provision of accurate information. A key goal of drug education programmes would to facilitate the evolution of appropriate public attitudes regarding the responsible use of cannabis.

Treatment Programmes
Relatively little is known about the effectiveness of treatment programmes aimed at rehabilitating cannabis users with problems of dependence or harmful use. The Forum will depend on advice and submissions from experts in this arena to arrive at additional recommendations concerning cannabis treatment programmes in our final report.

Cannabis and Driving
In reviewing the evidence on this topic, we find(somewhat surprisingly(that almost every major study performed in this area has shown that drivers who use cannabis only (i.e., no concomitant alcohol) perform at least as well as "straight" drivers.

However, the combination of alcohol and cannabis appears to be particularly conducive to the production of fatal accidents. Accordingly, one might consider a policy in which the consumption of any alcoholic beverages be prohibited if one also consumes cannabis prior to driving. Such a policy might be difficult to enforce, however.

iii. e. Alternative Systems of Cannabis Control in New Zealand

In this discussion paper we summarise existing scholarly literature concerning alternative systems of cannabis control. The paper is divided into four sections. Section 1 describes the various systems of cannabis control, including certain issues of terminology and classification. Section 2 explores the relative merits and drawbacks of these systems. Section 3 examines the implications of international treaties for efforts to change cannabis laws and policies. Section 4 discusses several key issues that must be resolved during the development of a sensible system of cannabis control in New Zealand.

Note

1. An excellent summary of several Australian commission reports can be found in McDonald D, et al. Legislative options for cannabis use in Australia. 3. National Drug Strategy Monograph No. 26, AGPS, Canberra, 1994.
   

Systems of Cannabis Control

The problem of cannabis control was first addressed one hundred years ago by the British Indian Hemp Drugs Commission, which issued its seven-volume report in 1893-4. The commission concluded that cannabis prohibition was not practicable, and that the best solution was to tax it to the extent possible. After examining the different regulatory systems in various provinces of India, the Commission recommended the system in Bengal, where cannabis was taxed more rigorously than in other provinces by means of a system of excise fees and vendors' licenses. (Cannabis possession and consumption remained legal in India until 1989, when these activities were prohibited under terms of the Single Convention Treaty of 1961; see Section 3.)

The first detailed analysis of alternative systems of cannabis control was performed by the National Commission on Marihuana and Drug Abuse (NCMDA) in the United States in the early 1970s. The NCMDA considered three basic strategies: total prohibition, "partial prohibition," and regulation, the latter approach entailing legal commerce in cannabis, with restrictions analogous to those placed on the sale and use of alcohol or tobacco.

In its final report,(1) the NCMDA rejected the options of total prohibition and regulation, recommending instead the adoption of a system of "partial prohibition" or "decriminalization," terms used interchangeably by the NCMDA to mean the elimination of penalties (criminal or civil) for private possession of small amounts of cannabis, while continuing to regard any cultivation or for-profit sale as criminal activities.

This definition of "decriminalization" was reinforced by the United Nations in 1976, which also introduced the term "depenalization":

By 'decriminalization' is meant the legislative process that renders lawful certain acts previously prohibited by criminal law, while 'depenalisation' implies the legislative process by which certain criminal offences are converted into matters to be dealt with administratively or by Civil Agencies, thus eliminating or reducing this stigmatizing effect inherent in the criminal law and easing the burdens of the criminal courts.(2)

During the five years following release of the NCMDA report, eleven States removed criminal penalties for private possession of cannabis, substituting instead civil penalties involving payment of a small fine.(3) Sale and cultivation remain felonies, although Alaska permits cultivation of a few plants for personal use.(4) Strictly speaking, these policies (except Alaska's) fit the UN definition of "depenalisation". However, they have almost universally been referred to as "decriminalization", despite not meeting either the NCMDA's nor the United Nations' usage of this term. (The Alaskan regime is also typically referred to as "decriminalization", although the tolerance of small-scale cultivation places it within the Australian definition of "partial prohibition", as defined below.) Similarly, the cannabis control regimes in place in South Australia and the Australian Capital Territory, in which civil fines have replaced criminal sanctions for minor cannabis offences (including cultivation), but within which cultivation and sale are still subject to criminal sanctions, are generally referred to as "decriminalisation". The term "depenalisation" appears to have disappeared in the 1970's.

Because "decriminalisation" has come to mean many different things, contemporary drug policy analysts have generally abandoned the term. For example, in their 1996 paper "Assessing alternative drug control regimes," MacCoun and colleagues described eight alternative systems, ranging from "pure prohibition" to "free market":

The concept of "decriminalization" is conspicuously absent . . . Though the term is often used casually as a synonym for legalization, decriminalization is not a distinct model in our framework, but rather, a form of low-severity prohibition.(5)

Similarly, in its 1994 report "Legislative options for cannabis use in Australia,"(6) the Australian Institute of Criminology (AIC) adopted the following classification:

• total prohibition without an administrative expediency principle
• total prohibition with an administrative expediency principle
• prohibition with civil penalties for minor offences
• partial prohibition
• regulation
• free availability.

The AIC believed that the use of this terminology:

avoids the semantic problems that often cause much confusion in debates about drug policies. In particular, it avoids the terms 'decriminalisation' and 'legalisation', terms which have different meanings for different authorities. The five options listed capture all the approaches which people have in mind when they refer to 'decriminalisation' and 'legalisation', as well as other options which these two words may or may not encompass.

The taxonomy of cannabis control regimens adopted by the AIC was largely borrowed from the 1978 report of the South Australian Royal Commission into the Non-Medical Use of Drugs (the Sackville Commission)(7), although the AIC added the distinction regarding an administrative expediency principle with respect to total prohibition.(8)

In the present report we also avoid the term "decriminalisation". However, another semantic issue remains to be resolved. Specifically, both the Sackville Commission and AIC use the term "partial prohibition" to mean a system that legalises both personal possession and cultivation of cannabis for adults in small, non-commercial amounts, e.g., up to five plants per household.(9) This usage of "partial prohibition" is at odds with the definition adopted by the NCMDA, as described above.(10) In its more recent 1995 report The Social Impact of Legislative Options for Cannabis in Australia,(11) the AIC continued using both the above taxonomy and the term "partial prohibition" to mean legalisation of (adult) personal-scale cultivation. In its 1996 report, The Victorian Premier's Drug Advisory Council also adopted the same taxonomy and the same meaning of "partial prohibition."(12)

Accordingly, in the present report we also adopt the AIC taxonomy (above), including its use of "partial prohibition" to mean the removal of all sanctions from both possession and cultivation of personal amounts, including the non-profit transfer of cannabis among adults.

We have elected to exclude from consideration in this report the various medical and personal licensing options included in the taxonomy suggested by MacCoun et al. (Footnote 5). In our view, these options (together with free availability) are probably not viable for implementation in New Zealand in the near future.