Decriminalisation refers to a reduction of legal penalties imposed for personal Cannabis use, either by changing them to civil penalties such as fines, or by diverting Cannabis users away from a criminal conviction and into education or treatment options (known as ‘diversion’). Cannabis possession for personal use and use itself would still be legally prohibited, but violations of those prohibitions would be deemed to be exclusively administrative violations, removed completely from the criminal realm. Decriminalisation largely applies to use and possession offences, not to sale or supply. The idea is to provide users with a more humane and sensible response to their use. Decriminalisation has the potential to reduce the burden on police and the criminal justice system. Essentially, under decriminalisation, law enforcement is instructed to ‘look the other way’ when it comes to possession of small amounts of Cannabis for personal use only. Under decriminalisation, both production and sale of Cannabis remains unregulated by the State. Decriminalisation does not address the black market nor criminal networks and relies on the ‘discretion’ of law enforcement.
As an example in Jamaica, according to The Economist:
“Decriminalisation is only half the answer. As long as supplying ‘drugs’ remains illegal, the business will remain a criminal monopoly. Jamaica’s gangsters will continue to enjoy total control over the ganja market. They will go on corrupting police, murdering their rivals and pushing their products to children. People who buy cocaine in Portugal face no criminal consequences, but their euros still end up paying the wages of the thugs who saw off heads in Latin America. For the producer countries, going easy on ‘drug’-users while insisting that the product remain illegal is the worst of all worlds”.
Legalisation, on the other hand, is the lifting or abolishing of laws banning possession and personal use of Cannabis. Legalisation would eliminate, or significantly reduce, the illegal black market and criminal networks as criminals do not profit in a legal market. Legalisation allows government to regulate and tax Cannabis use and sales, accruing taxation revenue as they currently do from gambling, alcohol and tobacco. Moving the issue away from police and the criminal justice system and concentrating responses within health would save big taxpayer dollars and remove the negative consequences (including stigma) associated with criminal convictions for Cannabis use. Finally, use figures post legalisation in most jurisdictions show either no change or a drop in use numbers, along with a reduction in crime and overdose deaths from all other drugs.
Currently legal drugs, such as alcohol and tobacco, are widely consumed and associated with an extensive economic burden to society – including hospital admissions, alcoholism treatment programs and public nuisance.
We should all be concerned about laws on substances deemed drugs (as Cannabis, for example, is a herb) because they affect all of us: people who use; who have family members using; health professionals seeing people for related problems; ambulance and police officers; and all who pay high insurance premiums because drug-related crime is extensive. Drug-related offences also take up the lion’s share of the work of police, courts and prisons. The moral argument against legalisation suggests the use of illegal drugs is somehow amoral, anti-social and otherwise unacceptable in today’s society. The concern is legalisation would ‘send the wrong message’. The moral argument also applies to decriminalisation, as lesser penalties may suggest society approves of drug use. Many countries, including Australia, have decriminalised Cannabis use to some degree: measures include providing diversion programs (all Australian states and territories) and moving from criminal penalties to civil penalties (such as fines in South Australia, Australian Capital Territory and the Northern Territory).
Research on Portugal suggests previously illegal drug use rates didn’t rise under decriminalisation, with measurable savings to the criminal justice system. The Portuguese government had been waging the ‘war on drugs’ since the 1980’s, but it wasn’t working (and hasn’t worked anywhere). Around 1% of the population was addicted to heroin in 1999 with the highest number of drug-related AIDS deaths in the European Union. In 2001 they took the unprecedented step of decriminalising all illicit substances deemed as ‘drugs’, from Cannabis to crystal methamphetamine to heroin. The Portuguese drug policy has been lauded by ultra-conservative and quasi-judicial, International Narcotics Control Board (INCB), which deemed it exemplary in December 2015. A decreasing trend in the total number of notifications of human immuno-deficiency virus (HIV) infection and acquired immune deficiency syndrome (AIDS) cases has continued to be registered since the early 2000’s. In 2016, a total of 1,030 new HIV-positive individuals and 261 new AIDS cases were reported for all risk groups; 14.3% of drug users who had ever injected and tested at outpatient treatment services were HIV positive, indicating an overall downward trend since 2013; and, Portugal’s drug-induced death rate sat at three per million residents, five times lower than the European average.
A person caught using or possessing a small quantity of drugs in Portugal for personal use (by law, should not exceed quantity required or average individual consumption over a period of 10 days), where there is no suspicion of involvement in trafficking, will be evaluated by a local Commission for the Dissuasion of Drug Addiction (CDT), composed of a lawyer, a doctor and a social worker. Punitive sanctions can be applied, but the objective is to explore the need for treatment and to promote healthy recovery. Trafficking may incur a sentence of 1-5 or 4-12 years’ imprisonment, depending on specific criteria, such as the nature of the substance supplied. The penalty is reduced for users who sell to finance their own consumption. Decriminalisation seems to have taken some pressure off the Portuguese criminal justice system. In 2000, approximately 14,000 people were arrested for drug-related crimes. This number dropped to an average of 5,000-5,500 people per year after decriminalisation. However, the number of people the police have cited for administrative drug use offences has also remained constant at about 6,000 per year.
Uruguay legalised Cannabis use in December 2013 under President Jose Mujica, known for donating 90% of his wages to the needy. The goal was to stamp out the black market, controlled mainly by Paraguayan smugglers, without encouraging consumption. Other considerations were to assist health problems, battle ‘drug’ related crime by controlling growing, importing and distribution of Cannabis and lowering the profit organised crime rings would gain by trafficking etc. Three separate surveys were conducted early 2014, late 2015 and mid‐2017 with national representative samples of adults. 60.7% of respondents in 2014 were against legalisation; in 2017, 54.1% remained opposed. In 2015, half those interviewed (49.9%) supported access through self‐cultivation, while 38.6% favoured Cannabis clubs and 33.1% agreed with retail sales in pharmacies. Support for medical Cannabis was high in 2015, with 74.5% favouring it. The surveys evidenced a change in public opinion toward legalisation.
Registered Uruguayan citizens (not visitors) are able to get Cannabis in one of three ways: grow up to six plants at home; join a club (45 members can cultivate up to 99 plants); or buy in pharmacies. Consumers are restricted to 40 grams (1.4 ounces) a month. About 10% of adult Uruguayans smoke at least once a year and more than 6,600 people initially registered to grow at home, with 51 clubs opened. Cannabis Clubs can grow a wide variety of plants, more than pharmacies are allowed to sell, with no limits on THC. “It’s the equivalent of comparing a bottle of wine with a box of wine” says Marco Algorta, grower at the 420 Cannabis Club in Montevideo. His worry is 99 plants are not enough to supply members with their full entitlement and he wants permission to grow more.
Even then, clubs and home growers will only cater to a niche market and pharmacies’ business will build, slowly (it’s only been five years since legalisation, this coming December). Thirty pharmacies initially signed up to cover much of the country, but their corporate suppliers are allowed to grow only four tonnes a year, 15% of what Uruguayans smoke. In June 2017, Uruguay’s envoy to Ottawa, Canada, Ambassador Martin Vidal, said his country’s goal had not been to change the minds of other countries about Cannabis, but to get them to accept that there are other ways to approach ‘drug’ control. “Some other countries have joined us in this discussion and others in the future, maybe Canada will be one of them, will find it’s not that the path is already clear, but we have facilitated a lot because we worked very hard in the last years to introduce this perspective” said Vidal, whose country is home to about 3.4 million people, about one-tenth Canada’s population.
There hasn’t been a rise in Cannabis use rates in Australia, despite states and territories introducing civil penalties for users. Research has noted a negative side effect to the way in which decriminalisation operates in Australia; ‘net widening’, whereby more people are swept into the criminal justice system than would have been otherwise under full prohibition because discretion by police is less likely and/or they do not meet their obligations. Despite the largely supportive evidence base, politicians appear reluctant to proceed along the decriminalisation path, let alone legalisation, due somewhat to vested interests (mostly pharmaceutical interests). But public opinion is largely in support of decriminalisation and even legalisation where it concerns Cannabis. In a national survey in 2015, more than nine out of 10 Australians (91%) believed the use of Cannabis for medicinal purposes should be made legal, according to a special survey conducted 20-22 October. Only 7% were against legalisation and 2% couldn’t say.
“Prohibition has failed. As a drug and alcohol doctor, I’ve seen that the ‘tough on drugs’ approach causes enormous harm. It drives people away from getting help when they need it and exposes them to a dangerous black market”, Richard Di Natale
In April 2018, Richard Di Natale, Leader of The Australian Greens said: “The Greens see ‘drug’ use as a health issue, not a criminal issue. Our plan to create a legal market for Cannabis production and sale will reduce the risks, bust the business model of criminal dealers and syndicates and protect young people from unfair criminal prosecutions”. He said in a poll in 2017, 55% of Australians believed Cannabis should be taxed and regulated like alcohol and tobacco. The plan would be expected to raise “hundreds of millions” of dollars for the budget. In May 2018, Senator David Leyonhjelm, Liberal Democrat from New South Wales, put forward a private member’s bill, ‘Criminal Code and Other Legislation Amendment (Removing Commonwealth Restrictions on Cannabis) Bill 2018’, which would amend five Acts and the Criminal Code Regulations 2002 to remove barriers in Commonwealth legislation to the legalisation and regulation of Cannabis for recreational, medicinal, industrial and other purposes.
“Adults should be free to make their own choices, as long as they do not harm others”, he told Parliament House in Canberra. The NSW minor-party Senator has been a long-time supporter of recreational Cannabis as a libertarian who champions free speech, lower taxes and unwinding gun control. Senator Leyonhjelm previously supported the Greens’ plan to make the herb legal in the face of bans in every state and territory. In March, a Victorian parliamentary Inquiry Into Drug Law Reform called for recreational use to be legalised, after MP’s visited Colorado and California, where it is legal to use Cannabis, recreationally. They argued a sales tax could be levied on Cannabis if it was legalised and explored how Cannabis could be regulated with child-proof packaging, only available for sale to adults.
Opponents of legalisation are concerned it will increase use, increase crime, increase risk of car accidents and reduce public health, including mental health. None of which has happened in any jurisdiction under legalisation (in fact mostly the opposite has been shown to be true). The current incarnation of the Australian Federal Health Minister, the misogynistic Greg Hunt, actually said in April 2018, “marijuana is a gateway drug”. Hunt graduated in Law from Melbourne University and won a full scholarship for his Masters in International Relations via Yale University. Great qualifications for a health portfolio; a lawyer who spruiks ‘reefer madness’ rubbish, as the ‘gateway drug’ hypothesis was well and truly discounted decades ago. The majority of people who use Cannabis do not go on to use other drugs. In addition, alcohol, tobacco and pharmaceuticals usually precede Cannabis use, which if the theory were correct would make those drugs the ‘gateway’. There is also no evidence legalisation increases use.
Australia’s official drug strategy is purportedly based on a platform of harm minimisation, including supply reduction, demand reduction (prevention and treatment) and harm reduction. Arguably, policies should therefore have a net reduction in harm. But some of the major harms from using illicit drugs are precisely because they are illegal. A significant harm is having a criminal record for possessing drugs for personal use. This can negatively impact a person’s future, including careers and travel. A large proportion of the work of the justice system (police, courts and prisons) is spent on drug-related offences. Yet, as Mick Palmer, former AFP Commissioner, noted “drug law enforcement has had little impact on the Australian drug market”. Decriminalisation may reduce the burden on the justice system, but not as much as full legalisation because police and court resources would still be used for cautioning, issuing fines, or diversion to education or treatment.
Legalising for recreational use would boost the budget by up to $1.8 billion a year, the Parliamentary Budget Office revealed. The independent costing of the policy submitted by the Greens shows a tobacco-style 25% per cent excise on each sale with a 10% Goods and Services Tax and a reduction in law enforcement would net $3.5 billion by 2020-21. Tourists travelling to Australia would add up to “10% of total sales”, earning $130 million in revenue by 2020. The boost would be used to fund drug education and treatment programs. The PBO said the policy would allow the Australian Federal Police to “re-allocate a proportion of the resources currently directed at Cannabis to strengthen the law enforcement of other illicit substances”, such as ice, methamphetamines and heroin. There would also be minimal costs for the Australian Taxation Office and the Department of Home Affairs to administer the taxes, the PBO found, as that could be done through established systems and processes.
Many see Cannabis prohibition as an infringement on civil rights, citing the limited to non-existent harms associated with Cannabis use. This includes the exceptionally low rate of so-called ‘dependence’ (it can certainly be habit-forming) and impossibility of overdosing on Cannabis, as well as incredibly low to non-existent risk of harms to people using, or others. Many activities that are legal are potentially harmful: driving a car, drinking alcohol, bungee jumping. Rather than making them illegal, there are guidelines, laws and education to make them safer that creates a balance between civil liberties and safety. Legalisation of Cannabis is relatively recent in most jurisdictions so longer-term benefits of legalisation are not yet known. But one study found little effect of legalisation on ‘drug’ use or other outcomes and other studies have shown no increase in use, even among teens.
In Australia there is a lack of clarity about the issues with poor understanding of the different models of decriminalisation and some basic confusion existing between what decriminalisation and legalisation actually constitute. Many people equate decriminalisation with legalisation, but as detailed, they are very different in policy, intent, action and outcome. Decriminalisation is also sometimes incorrectly confused with harm reduction services, such as safe injecting centres. In order for the debate to progress, we need clarity of terms and dispassionate presentation of what evidence we have, not more ‘reefer madness’ from unqualified and ignorant, in their lack of education regarding actual Cannabis, elected officials, politicians, senior so-called ‘medical professionals’ and self-serving academics. Three words leap to mind, ‘Cranial Rectal Inversion’.
Adapted from Decriminalisation or legalisation: injecting evidence in the drug law reform debate with Portugal’s Experience of Drug Decriminalisation, The status of support for cannabis regulation in Uruguay 4 years after reform: Evidence from public opinion surveys, Uruguayan pharmacies will start selling cannabis, Greens want cannabis to be made legal, Drug War Facts – Region – Portugal, Criminal Offences in Portugal 2012, by Type of ‘Drug’, Drug harms in Portugal 2018, Uruguay sets path for Canada on marijuana legalization within international treaties, Legal highs: arguments for and against legalising cannabis in Australia, $3.5 billion budget boost from legalising marijuana, costing shows and Australia: Senator introduces bill to allow the use of recreational cannabis