The Rise and Decline of Cannabis Prohibition (Part 3)

In 1955 the Commission on Narcotic Drugs (CND) reached the verdict Cannabis had no medicinal value, on the basis of minimal and biased documentation. Proof Cannabis was used in traditional Indian medicine did not have an effect against the powerful anti-Cannabis bloc. The third draft of the Single Convention (1958) included a special section, ‘prohibition of Cannabis’. Opposition prevented its adoption at the Plenipotentiary Conference in New York, 1961. India objected as it opposed banning widespread traditional use of bhang made from Cannabis leaves, a “mildly intoxicating drink, far less harmful than alcohol”. Pakistan and Burma argued against prohibition. Other states supported use of Cannabis in pharmaceutical preparations and indigenous medicine, professing future research might reveal further medicinal benefits. Deviating from the zero-tolerance bias so prevalent at the Conference, leaves and seeds were explicitly omitted from the definition of Cannabis, which referred to “flowering or fruiting tops of the Cannabis plant”As such, traditional use of bhang in India could continue. Exceptions for industrial Cannabis (fibre and seed) were cited in separate articles. Socially accepted uses of Cannabis in many Asian and African countries were condemned to be abolished, a culturally biased approach extended to coca leaf chewing. Along with heroin and a few other drugs, Cannabis was included in Schedule I (substances considered most addictive and harmful) and the strictest Schedule IV (substances considered most dangerous and regarded as exceptionally addictive, producing severe ill effects) of the Single Convention. Cannabis was classified among the most dangerous ‘psychoactive’ substances under international control with extremely limited therapeutic value.

Cannabis, resin, extracts and tinctures were subject to all control measures foreseen by the Convention. Any signatory “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 the production, manufacture, export and import of, trade in, possession or use of any such ‘drug’ except for amounts which may be necessary for medical and scientific research only”. Due to its inclusion in Schedule IV, the Convention suggested parties consider prohibiting Cannabis for medical purposes and only allow limited quantities for medical research. The key provision of the Convention is under General Obligations in Article 4: “The parties shall take such legislative and administrative measures […] to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of ‘drugs’”. The ‘psychoactive’ compounds of Cannabis were identified after the 1961 Convention. In 1963, Raphael Mechoulam and research partners at the Hebrew University of Jerusalem revealed the structure of cannabidiol (CBD) and the following year, isolated delta-9-tetrahydrocannabinol (THC), established its structure and synthesised it. Included in Schedules I and IV of the 1961 Single Convention, alongside active alkaloids of other plant materials, like cocaine (from coca leaf) or morphine (from opium poppy), the basic rationale in regard to Cannabis was abandoned with the decision to control its main active ingredient, THC, under the 1971 Convention on Psychotropic Substances.

Dronabinol, a pharmaceutical (chemically similar but not the same) formulation of THC was included in the most stringent Schedule I when the 1971 Convention was adopted, corresponding in severity of control with Schedule IV of the 1961 Convention. In 1969 the WHO Expert Committee announced it “strongly reaffirms the opinions expressed in previous reports that Cannabis is a ‘drug of dependence’, producing public health and social problems and that its control must be continued” and “medical need for Cannabis as such no longer exists”. After discussing a draft of what would become the 1971 Convention on Psychotropic Substances, the WHO Expert Committee suggested a division of five categories and inclusion of tetrahydrocannabinol’s in the strictest category of “drugs recommended for control because of their liability to abuse constitutes an especially serious risk to public health and because they have very limited, if any, therapeutic usefulness”. The pharmaceutical industry became interested in medicinal potential of cannabinoids and preferred they be dealt with under a new treaty, to keep exploration and commercial development separate from political controls the Single Convention placed on Cannabis. During the 1971 conference, disputes regarding separation of control measures for Cannabis from those for its active principles, erupted. One difficulty was how to define and control production or manufacture. Records note, “The Technical Committee had discussed the problem in connection with the tetrahydrocannabinols, derived from the Cannabis plant. If ‘production’ meant planting, cultivation and harvesting, then Cannabis would have to be treated as a psychotropic substance”. 

It was decided, in the words of the Indian delegate, “all references to production should be dropped”, otherwise the fact “tetrahydrocannabinols had been included in Schedule I” and “Cannabis was the plant from which those substances were derived”, it “would mean that Cannabis would fall within the scope” of the treaty as well. The 1971 conference adopted a control logic completely different from the rationale of the 1961 Convention. Cultivation, production and required precursors, whether plants or other substances, for psychotropic’s was deliberately kept out. Including THC in Schedule I allowed medical research, but posed obstacles for development and marketing of pharmaceuticals. Successful lobbying by the pharmaceutical industry, based on a slowly increasing body of evidence regarding medicinal efficacy of cannabinoids, led to a 1982 US government request to transfer dronabinol from Schedule I to II. The WHO Expert Committee conducted a critical review resulting in a positive recommendation for the pharmaceutical industry. The CND adoption in 1991 of the WHO recommendation to deschedule dronabinol and its stereoisomers to Schedule II of the 1971 Convention was the first step in the ongoing process of formal acknowledgement at UN level of medical usefulness of the main active compound of Cannabis, albeit a synthesised version. The 1961 Single Convention was not even in print before debate about the status of Cannabis restarted. At the CND session following the 1961 conference, comments in the Dutch press that Cannabis addiction was no worse than alcoholism triggered debate. Views not entirely consistent with the international control policy embodied in the Single Convention were being voiced.

Image result for WHOThe majority opinion in the CND argued the international community had agreed Cannabis use was a form of ‘drug’ addiction and emphasised any publicity to the contrary was misleading and dangerous. This would become the stock response whenever anyone dared voice dissent. Known as the ‘Vienna consensus’, it is hailed by promoters as the bedrock of the UN ‘drug’ control system with those favouring reform seeing it as a barrier to modifying the status quo of an increasingly inadequate regime, no longer fit for purpose. Due to its growing popularity and widespread use, particularly its close association with emerging counter-cultural movements, Cannabis became the focus of ‘drug’ enforcement activities in many western countries in the 1960’s. Meanwhile, western Cannabis pilgrims were heading off for countries in which Cannabis consumption remained a traditional custom. The shift in ‘drug’ use patterns in western nations coincided with the Single Convention and birth of the new era in international ‘drug’ control under the UN operated regime. Arrests for ‘drug’ offences reached unprecedented levels, driven largely by growth in Cannabis offences, including simple possession. In the US, offences relating to Cannabis rose by 94.3%, 1966-1967, the year the Convention was ratified in Washington, with even small amounts potentially resulting in custodial sentences of up to ten years. This was an extreme, but large numbers of predominantly young people were receiving criminal convictions, fines and in some cases, prison sentences in a range of western countries.

Australian ‘Drug Control’ Timeline 1961-1970
1961 – Australia signs International Single Convention on Narcotic Drugs. Supports obligation to make Cannabis available as a medicine.
Throughout the 1960‘s – Emergence of ‘recreational drug’ use; Cannabis, heroin, LSD and other ‘psychoactive drugs’ for pleasure or spiritual enlightenment. ‘Drug’ use became widespread, if not mainstream, rather than activity pursued by a few. Official response was increased law enforcement and legislative change to extend the range of offences and increased penalties for ‘drug’ offences.
19621975 – The Vietnam War contributed to the significant increase in ‘drug’ consumption in Australia with US soldiers on ‘rest and recreation’ creating a market for Cannabis and other illicit ‘drugs’.
By 1970 – All states enacted ‘drug’ laws introducing a distinction between use, possession and supply offences. Penalties for possession and use increased and very substantial penalties introduced for ‘drug’ supply, especially large quantities (trafficking).

The handling of Cannabis users within a variety of national legal systems triggered significant domestic debate. Extensive public inquiries or commissions were established to examine ‘drug’ use and recommended changes in the law on Cannabis, in a number of Image result for 1894 Indian Hemp Drugs Commission report,nations: the UK, Report by the Advisory Committee on Drugs Dependence, the Wootton Report, 1969; the Netherlands, Baan Commission, 1970 and Hulsman Commission, 1971; the US Shafer Commission Report, Marihuana: A Signal of Misunderstanding, National Commission on Marihuana and Drug Abuse, 1972; in Canada, the Commission of Inquiry into the Non-medical Use of Drugs, the Le Dain Commission, 1973; and, Drug problems in Australia – an intoxicated society? by the Senate Standing Committee on Social Welfare, 1977. As with earlier inquiries, including the Indian Hemp Drugs Commission Report of 1894, the Panama Zone Report, 1925 and the 1944 La Guardia Report, all came to broadly the same conclusions. Cannabis was deemed not entirely harmless, yet compared with other drugs, the dangers were exaggerated. There was general agreement “the effects of the criminalisation of Cannabis were potentially excessive and the measures even counter-productive”. Thus, “lawmakers should drastically reduce or eliminate criminal penalties for personal use”. As was largely the case at a national level, the reports had little noticeable effect on the attitude of the international drug control community, though their spirit may have influenced the 1972 Protocol Amending the Single Convention on Narcotic Drugs.

A minor reorientation of the regime toward greater provision for treatment and social reintegration was proposed, as was the option of alternatives to penal sanctions for trade and possession offences, committed by users. The prohibitive ethos and supply-side focus of the ‘drug’ control regime remained untouched. Stasis on the international stage did not prevent a number of waves of ‘soft defection’ from the zero-tolerance approach. Despite US federal government’s continued opposition to any alteration of the law, a number of US states relaxed policies regarding possession and decriminalised or depenalised personal use in the 1970’s. While Washington was successfully imposing its prohibitionist policy on the rest of the world, the US federal government had major difficulties in maintaining policy domestically. That dichotomy began when the Nixon administration introduced the Controlled Substances Act in 1970 and initiated the ‘War on Drugs’. The law placed Cannabis in the same schedule as heroin (high potential for abuse, no medicinal value) and prohibited recreational use nationwide. Nixon appointed the Shafer Commission to study Cannabis use but the results were not to the President’s liking. The Commission favoured an end to prohibition with a social control policy seeking to discourage use. In his presentation to Congress in 1972, the Commission’s chairman recommended decriminalising small amounts saying, “criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use”. Nixon dismissed the Commission’s findings. However, the report had a considerable impact on diverging trends in Cannabis in the US.

Image result for In 1973 Oregon became the first state to decriminalise Cannabis.

In 1973 Oregon became the first state to decriminalise Cannabis. Possession of one ounce (28.35 grams) or less became punishable by a $500-$1,000.00 fine. California followed in 1975, making possession under one ounce for non-medical use punishable by a $100.00 fine. The Alaska Supreme Court, in 1975, ruled possession of amounts up to one ounce for personal use were legal in one’s own house, under state constitution privacy protections. Other states followed with varying policies and measures such as fines, education, treatment instead of incarceration or assigning the lowest priority to various Cannabis offences for law enforcement. Outside the US, in an isolated example of national politicians taking on board commission advice, Dutch authorities acted on recommendations made by the Baan and Hulsman Commissions and began re-evaluating how to deal with Cannabis use, a process that led to the coffeeshop system. The Dutch government was prepared to legalise Cannabis, according to a government memorandum, January 1974: “The use of Cannabis products and the possession of them for personal use should be removed as soon as possible from the domain of criminal justice … The Government shall explore in international consultations whether it is feasible that agreements as the Single Convention be amended in a way that nations will be free to institute, at their discretion, a separate regime for Cannabis products”. Fully aware an amendment of the Single Convention was impossible when a ‘War on Drugs’ had been declared, the Dutch government did not insist. 

The Shafer Commission Report (1972)In 1979, President Jimmy Carter, in a message to Congress, took up the recommendations of the Shafer Commission Report, dismissed by Nixon: Penalties against possession of a ‘drug’ should not be more damaging to an individual than the use of the ‘drug’ itself; and where they are, they should be changed. Nowhere is this more clear than in the laws against possession of ‘marijuana’ in private for personal use. We can, and should, continue to discourage the use of ‘marijuana’, but this can be done without defining the smoker as a criminal. States which have already removed criminal penalties for ‘marijuana’ use, like Oregon and California, have not noted any significant increase in ‘marijuana’ smoking. The National Commission on Marijuana and Drug Abuse concluded five years ago that ‘marijuana’ use should be decriminalised, and I believe it is time to implement those basic recommendations”. Carter supported legislation amending federal law to eliminate federal criminal penalties for possession up to one ounce, leaving the states free to adopt whatever laws they wished concerning use. Stressing decriminalisation was not legalisation (federal penalty for possession would be a fine rather than criminal penalty), the proposed policy shift signified a substantial change. However, amidst growing public opposition to lessening the punitive response to Cannabis use, hope of reform ended with Carter’s defeat in the 1981 presidential election and the concomitant conservative backlash. President Ronald Reagan re-initiated Nixon’s ‘War on Drugs’ and introduced more punitive, prohibitive legislation. Reagan not only introduced stricter laws, but embarked on a mission at an international level to accomplish what US delegates had not been able to in the 1930’s.

Australia and the International Drug Conventions
After the Second World War, Australia ratified all three UN drug conventions.
The Single Convention on Narcotic Drugs (1961), ratified in 1967, as well as the Protocol amending the Single Convention on Narcotic Drugs (1972) (ratified in November 1972);
• The Convention on Psychotropic Substances (1971), ratified in May 1982; and
• The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), ratified in November 1992.
The obligations in these treaties are carried out in three pieces of federal legislation:
the Narcotic Drugs Act 1967;
• the Psychotropic Substances Act 1976; and
• the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act of 1990.

Anslinger failed with the 1961 Convention and its 1972 Amending Protocol to prevent growth of an increasingly lucrative criminal market and massive expansion of illegal ‘drug’ traf­ficking networks. As in the 1930’s with development of the 1936 Convention for the Suppression of the Illicit Traffic in Dangerous Drugs, an additional convention was deemed necessary to counter ‘drug’ trafficking and pursue earnings from trafficking in an effort to remove both the incentive (profit) and the means (operating capital). The result was yet another international control mechanism and beginning of an anti-money-laundering regime to identify, trace, freeze, seize and forfeit ‘drug’-crime proceeds. The 1988 United Nations Convention against Illicit Traf­fic in Narcotic Drugs and Psychotropic Substances significantly reinforced the obligation of countries to apply criminal sanctions to combat all aspects of illicit production, possession and traf­ficking. Current policies in the Netherlands and some US states can be seen as the legacy of policy choices made during a first wave of Cannabis liberalisation four decades ago. More recently, a second wave of policies softening the prohibition of recreational Cannabis use can be identified around the globe: what has been called a ‘quiet revolution’ of decriminalisation in several Latin American and European countries and Australian states and territories. These waves of soft defection mainly consist of softening or abolishing penal provisions for personal use, possession and in some instances, cultivation of a limited amount of plants for personal use.

Image result for california proposition 215The ‘medical-Cannabis’ movement in the US might be seen as a third wave of soft defection, concomitant with the second one. In 1996, voters in California passed Proposition 215, the Compassionate Use Act, exempting medical use of Cannabis from criminal penalties. This does not legalise Cannabis, but changes how patients and caregivers are treated by the court system. California’s law allows individuals to possess, cultivate and transport Cannabis as long as it is for medical purposes with a doctor’s written recommendation, as opposed to a prescription. Since 1996 other US states have followed California’s example to varying degrees. ‘Medical-Cannabis’ dispensaries and Cannabis Buyers’ Clubs have emerged to provide Cannabis to those with legitimate medical need. A grey market developed in which Cannabis is available as a medical treatment in several US states to almost anyone who tells a willing physician discomfort would be lessened if he or she used Cannabis. Despite substantial differences across counties and cities, the ‘Californian model’ has grown, close to defacto legalisation for recreational use. The intransigence of the US federal government regarding states’ ‘medical-Cannabis’ arrangements, in particular the move towards defacto regulation of cultivation for recreational use in some states, has made Cannabis policy a battleground for activists, law enforcement, voters, local, state and federal legislators and, in the final instance, the courts. The regulation of ‘medical-Cannabis’ cultivation could be considered a precursor to legal regulation of the recreational Cannabis market, not unlike alcohol regulation.

Successful ballot initiatives in Washington and Colorado in November 2012 started a wave that moved from soft to hard defection, leading to treaty breaches. At the UN level the increased soft defection regarding Cannabis in some western countries led to a reaction at the 2002 session of the CND. The attempt was based on the 2001 annual report of the International Narcotics Control Board (INCB), which contained strong language about the leniency trend. President of the INCB, Hamid Ghodse, stated: “In the light of the changes that are occurring in relation to Cannabis control in some countries, it would seem to be an appropriate time for the Commission to consider this issue in some detail to ensure the consistent application of the provisions of the 1961 Convention across the globe”. The hard liners in international ‘drug’ control took up this invitation and expressed grave concern. Morocco pointed at the emerging contradiction between the trend toward decriminalisation of Cannabis use and a continuing pressure on ‘southern’ countries to eradicate Cannabis with repressive means. Although Morocco, a major supplier of hashish for the European market, certainly had a point, one cannot ignore that in many so-called southern producer countries, often with a long tradition of Cannabis use, law-enforcement services habitually turn a blind eye to domestic use. In the end, the selective focus towards Cannabis use in developing countries and a variety of decriminalisation policies in western countries are similar. One could therefore point to the hypocrisy on both sides of the debate and the lack of realisation there is in fact more common ground than is apparent in arguing for a regime change, in particular where Cannabis is concerned.

Image result for United Nations Of­fice on Drugs and Crime (UNODC)

The skirmishing about lenient policies continued at the CND in 2003, remaining unresolved. One of the outcomes of the debate was a request to the United Nations Of­fice on Drugs and Crime (UNODC) to prepare a global market survey on Cannabis, which resulted in a special chapter in the 2006 World Drug Report, entitled ‘Cannabis: Why we should care’. In the report the UNODC recognised “much of the early material on Cannabis is now considered inaccurate, and that a series of studies in a range of countries have exonerated Cannabis of many of the charges levelled against it”. It goes on, “Medical use of the active ingredients, if not the plant itself, is championed by respected professionals”. That in itself is surely a valid reason to deschedule Cannabis. UNODC acknowledges the scientific basis for putting Cannabis on the list of the 1961 Single Convention at the same level as heroin as incorrect. However, the report is inconsistent due its effort to balance or counter scientific research with the political correctness of the global ‘drug’ prohibition regime. In its preface, written by then UNODC Executive Director Antonio Maria Costa, the unsubstantiated allegations about Cannabis re-emerged. According to Costa, “the characteristics of Cannabis are no longer that different from those of other plant-based ‘drugs’ such as cocaine and heroin”. The Executive Director echoed the unsubstantiated claims of Anslinger and Wolff from more than fifty years earlier. Central to the claims, emergence of high potency Cannabis on the market and failure to control supply at a global level. Costa’s strong language was at odds with the more cautious section about Cannabis in the World Drug Report. 

In Australia in 1985 the Federal and State Governments adopted a National Drug Strategy which included a pragmatic
mixture of prohibition and a stated objective of harm reduction. Harm reduction has been an official part of Australian
‘drugs’ policy ever since, although most resources by far are devoted to policing and border patrol attempts at interdiction
(supply reduction).  In  all  states,  the  impact  of   prohibitionist  laws  on  ‘drug’  users  is somewhat  modified  by  a
number of diversion programs, diverting some eligible users from the criminal justice system to cautions or treatment.

The claim of a devastating Cannabis pandemic is not substantiated. Further, the report suffers from an attempt to bridge the gap between the exaggerated claims in Costa’s preface and the more cautious content of the main text. Although it contains much valuable information, in trying to span the two the report tends to stress the negative and discard the positive. It basically ignores increased medical use of Cannabis. In discussing potential health and addiction problems the UNODC admits much of the scientific data is still inconclusive, but the report tends to highlight research that indicates problems, while research that contradicts these conclusions is disregarded. The report does, however, demonstrate supply reduction is impossible given the potential to grow the plant anywhere and all past attempts to control availability failed. In its final conclusion, the report raises the key issue concerning Cannabis today, as evidenced by the pioneering reform initiatives in Uruguay, Washington and Colorado: The world has failed to come to terms with Cannabis as a ‘drug’. In some countries, Cannabis use and trafficking are taken very seriously, while in others, virtually ignored. This incongruity undermines the credibility of the international system and the time for resolving global ambivalence on the issue is long overdue. Either the gap between the letter and spirit of the Single Convention, so manifest with Cannabis, needs to be bridged, or parties to the Convention need to discuss redefining the status of Cannabis. Given the fact some jurisdictions are allowing a regulated market for recreational use, the debate about a different status of Cannabis in the international ‘drug’ control regime seems to be more necessary than ever.

The Cannabis plant has been used for spiritual, medicinal and recreational purposes since the early days of civilisation

 

The Cannabis plant, used for spiritual, medicinal and recreational purposes since early civilisation, was condemned by the 1961 Single Convention on Narcotic Drugs as a ‘psychoactive drug’ with ‘particularly dangerous properties’ and little therapeutic value. Ever since, increasing numbers of countries have shown discomfort with the treaty strictures through soft defections, stretching legal flexibility to questionable limits. Today’s political reality of regulated Cannabis markets in so many jurisdictions including Uruguay, Colorado, California and Canada, at odds with UN conventions, puts the discussion about options for reform on the table. Cracks in the Vienna consensus have reached treaty breach; no longer just a reformist fantasy. Easy options, however, do not exist; they all entail procedural complications and political obstacles. A coordinated initiative by a group of like-minded countries, deciding on a road map for the future, seems the most likely scenario moving forward. There are good reasons to question the prohibition model for Cannabis control. Not only is the original inclusion of Cannabis in the current framework the result of dubious procedures, but understanding of the ‘drug’ itself, dynamics of illicit markets and the unintended consequences of repressive control strategies has increased enormously. Prohibition has failed to have any sustained impact in reducing the market, while imposing heavy burdens upon criminal justice systems; producing profoundly negative social and public health impacts; creating criminal markets supporting organised crime, violence and corruption. The current policy trend towards legal regulation is a more promising model for protecting people’s health and safety. The question facing the international community is no longer whether or not there is a need to reassess and modernise the UN drug control system, but rather when and how to do it. (The Transnational Institute and the Global Drug Policy Observatory)

Continued from The Rise and Decline of Cannabis Prohibition (Part 2), The Rise and Decline of Cannabis Prohibition (Part 1), Extracted and Adapted from The Rise and Decline of Cannabis Prohibition

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