Annex C
Legislative Frameworks for Cannabis:
IMPACT ON ENFORCEMENT AND PATTERNS OF USE1
Mike Ashton, Editor of the Journal "Drug
and Alcohol Findings".
HEADLINES
— Cannabis use has remained relatively
unaffected by different legislative frame works.
— The efforts of law enforcement in
countries that advocate a total ban on the personal use of cannabis
has had an insignificant impact, if any at all on levels of cannabis
use.2 Indeed, these restrictions may even have led to greater
harm with regards to health and social costs.
— More liberal policies towards the
possession and use of small quantities of cannabis, such as The
Netherlands' Expediency Principle and the expiation schemes introduced
in South Australia and the ACT, do not seem to have led to increased
cannabis use. Such policies do not appear to have had the effect
of signalling approval of cannabis use, nor of increasing the
availability of the drug. It is unlikely that the option of partial
prohibition would produce substantially different results with
regards to cannabis consumption.
— Regulation has the potential drawback
of signifying approval, while totally free availability may increase
the nation's cannabis use to some small degree.
— The important point is that cannabis
legislation does not seem to impact upon cannabis consumption
in any significant way.
— A survey of drug use trends in Europe
revealed that cannabis use has been declining since the early
to mid-1970s, and seems unrelated to the type of control regime
in place on specific countries.3 North American research also
demonstrates fairly conclusively that legal sanctions do not deter
or inhibit future illegal drug usage.4
— With regards to minimising the harm
associated with cannabis it is the opinion of many commentators
that the harm caused by legislation prohibiting personal cannabis
use outweighs the harm caused by the drug itself. Furthermore,
restrictions on advertising and sensitive education campaigns
have been found to be effective ways of minimising the harm associated
with alcohol and tobacco. Similar techniques would seem to be
possible with regards to cannabis and it may be a much more effective
strategy than employing the "strong arm of the law".
INTRODUCTION
1. In addressing cannabis use there are
numerous legislative options available to policy makers ranging
from total prohibition to free availability. This paper discusses
the impact (both actual and potential) of cannabis legislation
upon cannabis use, the community and the law enforcement sector.
2. At the outset it is important to state
that the arguments presented here apply to the control and effects
of cannabis and should not be generalised to other drugs. The
evaluations made regarding the impact of cannabis legislation
stem from empirical research findings rather than moral arguments
for or against cannabis use and cannabis legislation.
3. The majority of studies into cannabis
use fail to mention the impact of current legislation on patterns
and results of cannabis use, let alone considering the potential
impact of other legislative options. A few studies do focus on
differing legislative approaches to cannabis but most of this
literature limits itself to comparing the total prohibition of
the United States, with the total prohibition with an expediency
principle of the Netherlands, thus precluding legislative options
not already practised.
4. This working paper examines the results
of the full cross section of possible legislative frameworks for
cannabis.
LEGISLATIVE FRAMEWORKS
5. Six legislative options are evaluated
in this study:
— Total prohibition (with no expediency
principle) whereby the use, possession, cultivation, importation,
sale and distribution of any amount of cannabis are criminal offences.
Most Western counties follow this policy. Thus, most of the available
literature and research on cannabis has been derived from the
context of total prohibition.
— Total prohibition (with an expediency
principle) is where laws exist prohibiting the possession and
production of cannabis but when the amount involved is small,
guidelines dictate that the laws need not be enforced. This policy
exists in the Netherlands.5
— Prohibition with civil penalties
is where the use and possession and cultivation of small quantities
of cannabis for personal use invoke civil sanctions rather than
criminal ones. The South Australian Cannabis Expiation Notice
scheme, introduced in 1987, and the Simple Cannabis Offence Notice
scheme introduced in the Australian Capital Territory in 1992,
are examples of this option and will be outlined below.6 Spain
also follows this model. During the 1970s 11 US states7 enacted
laws whereby the possession of small quantities of marijuana was
reduced from a felony offence to a misdemeanour. Despite Alaska
having re-criminalised minor cannabis offences in 1990, many commentators
regard some of the US cannabis laws as primarily symbolic and
believe that de facto decriminalisation (ie prohibition with civil
penalties) remains in many states.8
— Partial prohibition is where it is
not an offence (civil or criminal) to use cannabis or to possess
or grow it in quantities judged appropriate for personal use.
Italy, while not adopting this option in theory, does not regard
possession or cultivation of small quantities of cannabis criminally
punishable.
— Regulation is where the production,
distribution and sale of cannabis are control led to a greater
or lesser extent by government agencies (activities relating to
personal use would therefore not be penalised). Some degree of
regulation of cannabis exists in Holland whereby hemp products
are sold through youth centres and coffee shops under certain
clearly defined conditions. A regulatory regime applies to tobacco,
alcohol and many pharmaceutical products in many countries.
— Free availability would mean the
absence of any legislative or regulatory restrictions on the cultivation,
importation, sale, supply, possession or use of cannabis. This
approach is not practised in any country at present.
6. Of course, many variations on these models
are possible. For instance, should the partial prohibition or
regulation option be adopted, prohibition may still apply to persons
under 18 years of age. Use of cannabis in public places or preparation
of concentrated forms of cannabis could remain illegal. Also,
advertising bans may still apply, regardless of whether the sale,
use and cultivation of cannabis became legal. The precise details
of the legislation would depend on the particular policy goals
decided upon and within each legislative option there is considerable
room for manoeuvre.
PARAMETERS OF
STUDY
7. The categories investigated in researching
this paper were: patterns of consumption; health consequences;
law enforcement and legal issues; economic factors; driving behaviour;
public attitudes; education and employment; leisure and lifestyle;
self-identity; family and community relations; and young people.
Wherever possible, the discussion is based on empirical findings.
Where this is not possible (as a result of some of the legislative
options not having been enforced) the likely impact is surmised.
8. It is not the purpose of this discussion
to document in detail the consequences of cannabis use on physical
and mental health, as this topic has received extensive coverage
elsewhere. Suffice to say that the findings of the most recent
authoriative review9 concluded that cannabis use has not been
found to produce health effects any more harmful that that of
legal drugs such as alcohol and tobacco and certainly not compared
to crack or heroin. Evidence suggests that cannabis is not highly
dependence-producing and most studies have identified a decline
in cannabis consumption since the late 1970s.10
9. Most nations agree that cannabis use
should be discouraged or, at least, not encouraged. This study
therefore attempts to assess the impact of legislative changes
on levels of cannabis use as well as identifying the other results
of differing legislative frameworks.
COSTS OF
CANNABIS LAW
ENFORCEMENT AND
OTHER ECONOMIC
FACTORS
10. Although certainly not the most important
factor when addressing cannabis legislation, costs of enforcement,
other economic factors and their resulting social impacts are
a factor that policy makers should consider. It is also important
to note that many of the non-monetary (ie social) burdens of cannabis
laws stem directly from the monetary costs they precipitate.
TOTAL PROHIBITION
11. The financial cost to the community
due to the regime of total prohibition stems, largely, from the
enforcement of cannabis legislation. In Australia, for example,
a conservative estimate of all illicit drug law enforcement costs
for the financial year 1991-92 amounted to $450 million of which
some $329 million (or 73 per cent) were for cannabis law enforcement.11
This is estimated to be around 13 per cent of the total yearly
expenditure on Australian police, courts and prisons.12
12. Evidence suggests that law enforcement
and criminal justice costs are far higher than economic losses
due to the adverse effects of drugs in general, and cannabis in
particular.13
13. It must also not be forgotten that a
portion of the economy enters into the black market in cannabis
every year. American consumers were estimated to have spent US
$8.3 billion on cannabis during 1990 while the equivalent Australian
expenditure is thought to have been around A $1.9 billion.14 This
lost revenue is harmful not only to the community but also to
the individual who is paying a high price for cannabis from the
black market.15 The only section of the community to benefit from
the current trade in cannabis is the organised crime syndicates
and other dealers and traffickers involved in the black market.
Accumulation of wealth among these groups is obviously to be avoided.
Apart from the loss in taxes, prosperous organised crime groups,
like legitimate businesses, have the potential to grow and to
become involved in other, more lucrative, ventures that may be
more damaging to society than supplying cannabis.
TOTAL PROHIBITION
WITH AN
EXPEDIENCY PRINCIPLE
14. The introduction of an expediency principle
would be likely to result in a greatly reduced economic burden
to the criminal justice system. In The Netherlands, for instance,
substantial savings have been made to law enforcement and criminal
justice budgets as a result of not having to process large numbers
of cannabis offenders. However, many of the other negative financial
aspects of total prohibition would remain. Individual users may
still pay inflated prices for cannabis and those dealing in the
drug could continue to avoid paying taxes for cannabis-related
income and maintain the organised crime links.
PROHIBITION WITH
CIVIL PENALTIES
15. The introduction of civil penalties
for personal use and cultivation of cannabis may also provide
some savings to the criminal justice system although part of those
assets would have to be re-directed to fund the new scheme. In
the United States when civil penalties were introduced for small
scale cannabis use, significant savings in terms of law enforcement
costs were observed. For example, in California the legislative
changes were reported to have produced savings in cannabis law
enforcement of US $62 million per annum (in 1986 dollars) over
the 1976-85 period.16
16. On the other hand South Australia did
not make significant savings (though this may have been due to
testing results too early). In order to understand the dynamics
of legislative changes, it is necessary to take into account differences
in attitudes towards cannabis laws by law enforcement agents.17
Research is required to establish the opinions and reactions of
law enforcement personnel (eg police officers, magistrates, judges,
probation officers) towards the various legislative options for
cannabis.
PARTIAL PROHIBITION
17. The introduction of partial prohibition
would avoid the economic cost to society associated with personal
use of cannabis, possession and cultivation of small quantities
of the drug at the same time as limiting the costs, both financial
and social, imposed on individual users. While the black market
in cannabis would also be substantially reduced, it is unlikely
that it would disappear altogether under this option.
REGULATION OR
FREE AVAILABILITY
18. To end the black market for cannabis,
regulation or free availability may be necessary (although some
say that even under these conditions the black market is unlikely
to vanish altogether)18. These two options would certainly result
in substantial savings to the law enforcement and criminal justice
budgets, supplemented by taxes charged on cannabis products and,
in the case of regulation, revenue derived from licence fees for
growers, distributors and retailers. Conservative estimates suggest
that legalisation of the American cannabis market may produce
up to US $9.09 billion in tax revenue.19
19. A regulated system is not however without
cost and even a "free availability" option incurs costs
of implementing and enforcing regulations from licensing premises
and age minimums to banning advertising. The cost of enforcing
new regulations needs to be compared to the cost of enforcing
the old ones and it should not be assumed that decriminalisation
of cannabis would result in savings proportionate to current drug
law enforcement spending.
SUMMARY
20. In summary, the current regime of total
prohibition practised by most Western countries is undoubtedly
the most expensive option, in monetary terms, to enforce. While
more liberal laws would generally result in law enforcement and
criminal justice savings, it may not result in vast savings as
any form of legislation is likely to incur some costs. Economic
considerations should clearly not form the basis for cannabis
policy and other social costs of the different legislative options
must take precedence.
21. Despite this, the economic factors must
be considered in the cost benefit analysis of the various legislative
options for cannabis. Implemented efficiently, any of the options
other than total prohibition are likely to correspond with significant
fiscal savings.
PATTERNS OF
CANNABIS CONSUMPTION
22. As highlighted in the introduction most
states see cannabis consumption as a practice they want to discourage
or at least not encourage. With this in mind the key area for
consideration is the effect of cannabis legislation on patterns
of cannabis consumption.
TOTAL PROHIBITION
23. As most countries practice the total
prohibition option for cannabis, most of the data produced from
studies on cannabis consumption are derived from this context.
The prohibition model views drug use as a criminal rather than
a social problem and is based upon the tradition of deterrence
theory.20 In other words, the threat of legal sanction is presumed
to deter individuals from partaking in behaviour regarded by society
to be undesirable.21 Despite laws against cannabis use having
been in place for most of the 20th century, most studies show
that over one third of the population of Western countries have
used cannabis at least once. Clearly, the aim of eliminating (or
significantly marginalising) cannabis use through a total legislative
ban of the substance has failed resoundingly. Furthermore, there
is considerable evidence to show that even very substantial increases
in law enforcement activity alter neither availability of, nor
consumption levels of, cannabis to any significant degree.22 While
deterrence is one of the main aims of total prohibition it is
noteworthy that the threat of legal sanctions has been shown to
play a very minor part in the decision-making of cannabis consumers.
24. It is also true that strict legislation
banning the use of cannabis may have several undesirable effects
such as more technology-intensive methods of cultivation, the
use of dangerous fertilisers23, an increase in the potency of
the cannabis produced, and more harmful methods of consumption.24
Thus, prohibition would appear to have an adverse effect on aspects
of cannabis supply while doing little to alter levels of demand.
25. Although the rate of cannabis experimentation
is high, it is not as high as that of the legal drugs alcohol
and tobacco. Understandably, fears exist that liberalisation may
inflate levels of use of the drug and, subsequently, increase
the amount of harm associated with it. In order to inform the
debate on the legislative options for cannabis it is important
to evaluate the potential impact of more liberal legislation upon
cannabis consumption.
TOTAL PROHIBITION
WITH AN
EXPEDIENCY PRINCIPLE
26. In The Netherlands, where total prohibition
is encased in an administrative expediency principle, no significant
increases in drug use25 or changes in patterns of use have been
identified,26 and there may even have been a decline in cannabis
use.27
27. This option may also lead to users adopting
safer methods of consuming cannabis. For instance, when restrictions
are removed from the sale of water pipes, fewer users consume
cannabis in cigarette papers, which is the form of consumption
most damaging to the lungs.28
28. An additional aspect of the Dutch drug
policy is the availability, with impunity, of treatment for users
wishing to reduce or abandon drug use which helps explain the
considerably higher levels of drug users accessing treatment in
Holland vis-á-vis countries like the US.29 Some argue that
total prohibition and subsequent involvement in the criminal justice
system affords access to those individuals whose drug use is particularly
dysfunctional.30 This may be a reasonable position to take with
regards to drugs with a high dependence-production propensity,
but not in the case of cannabis. Furthermore, some of the reform
options still afford some sanctions regarding cannabis use, albeit
less harsh than those stemming from total prohibition, therefore
it is still likely to advance contact with those demonstrating
problematic drug use. It is also questionable whether treatment
administered through the criminal justice system is as effective
as individuals self-referring to treatment.
PROHIBITION WITH
CIVIL SANCTIONS
29. In South Australia, where possession
and cultivation of small quantities of cannabis for personal use
are dealt with by civil sanctions rather than criminal ones, the
data does not indicate an increase in cannabis use.31 NCADA Australian
household drug use survey data covering the period 1985-1993 indicate
that, although there have been increases in self-reported cannabis
use in South Australia, similar increases occurred in other states
where there have been no changes in the legal status of personal
cannabis use.
30. In the United States, where 11 states
decriminalised the use of marijuana during the 1970s, either no
significant increases in marijuana use were detected after decriminalisation32
or, where increases did occur, they were no greater than those
that arose in states in which no changes in cannabis legislation
had taken place.33
31. The evidence also suggests that far
from individuals not appreciating the law reform (a suggested
reason for the lack of increase in cannabis use) many people following
reform wrongly believed cannabis had been legalised.34 If there
is a wide-spread misunderstanding surrounding the legal status
of cannabis, it is remarkably encouraging that the extent of cannabis
use has remained relatively constant.
32. Considerable evidence also exists to
support the notion of a "saturation level" for marijuana
use among both youths and adults, which may not change drastically
over time, least of all as a result of implementation of more
lenient marijuana laws. These findings support the theory that
participation in cannabis consumption is more strongly associated
with social factors (such as personality, lifestyle and social
learnings) than with legal ones.
PARTIAL PROHIBITION
33. Little data is currently available with
which to evaluate the potential effects of partial prohibition
upon patterns of cannabis consumption, despite a small number
of countries having followed this model.
34. Should partial prohibition be introduced
it might be hypothesised that a similar situation to when an expediency
principle exists would arise (or indeed, to when all penalties
are erroneously believed to have been removed). Correspondingly,
this situation provides little cause for alarm with regards to
changes in cannabis consumption.
35. Nevertheless, greater availability of
the drug could make access easier to a greater number of young
people. This could result in more people experimenting with cannabis
earlier than they would have done otherwise (if at all).
36. It has also been suggested that increased
access to cannabis may actually reduce the demand for more harmful
illegal drugs (ADCA 1993b). When local supplies of cannabis dry
up, perhaps as a result of law enforcement seizures, there may
be a consequent increase in demand and supply of other illegal
drugs, including heroin, amphetamine, LSD and ecstasy.
REGULATION
37. Greater visibility of the drug in retail
outlets may act as a form of advertising exposing more people
(and in particular, more young people) to the temptation to experiment.
Fears exist that this move would also send a tacit message that
the community approves the use of harmful drugs. However, the
legalised status of nicotine, alcohol and psychoactive drugs available
on prescription does not send that message. Clearly regulation
would have to be accompanied by an effective education campaign.
38. Regulation may also break the linkage
between cannabis and other illegal drugs, thereby disrupting the
link between the cannabis market and the market for other illegal
drugs. The probability of progression onto other illicit substances
may therefore lessen.35
39. It is also reasonable to assume that
following regulation, cannabis may replace alcohol as the drug
of choice among a segment of society. Should this occur, then
the total damage to individuals and society may possibly be less,
as the medical (and social) risks associated with alcohol have
been shown to outweigh those of cannabis.36 On the other hand,
it is clear that the impairment caused by alcohol and cannabis,
taken in combination, is particularly marked and has serious implications
for road safety.37
FREE AVAILABILITY
40. It is likely that the free availability
option, by virtue of the increased accessibility of the drug,
would result in some increase in cannabis experimentation, particularly
if alcohol and tobacco continued to be controlled through government
regulation.
41. This might be particularly so if cannabis
advertising were permitted and the costs of cannabis fell; these
features may well encourage use or more harmful patterns of use.
It is however unlikely that even this option would see a massive
change in patterns of cannabis use.
SUMMARY
42. In summary, it is clear that cannabis
use has remained relatively unaffected by different legislative
frameworks.
43. The efforts of law enforcement in countries
that advocate a total ban on the personal use of cannabis has
had an insignificant impact, if any at all on levels of cannabis
use.38 Indeed, these restrictions may even have led to greater
harm with regards to health and social costs.
44. More liberal policies towards the possession
and use of small quantities of cannabis, such as The Netherlands'
Expediency Principle and the expiation schemes introduced in South
Australia and the ACT, do not seem to have led to increased cannabis
use. Such policies do not appear to have had the effect of signalling
approval of cannabis use nor of increasing the availability of
the drug. It is unlikely that the option of partial prohibition
would produce substantially different results with regards to
cannabis consumption.
45. Regulation has the potential drawback
of signifying approval, while totally free availability may increase
the nation's cannabis use to some small degree.
46. The important point is that cannabis
legislation does not seem to impact upon cannabis consumption
in any significant way.
47. A survey of drug use trends in Europe
revealed that cannabis use has been declining since the early
to mid-1970s, and seems unrelated to the type of control regime
in place in specific countries.39 North American research also
demonstrates fairly conclusively that legal sanctions do not deter
or inhibit future illegal drug usage.40
48. With regards to minimising the harm
associated with cannabis it is the opinion of many commentators
that the harm caused by legislation prohibiting personal cannabis
use outweighs the harm caused by the drug itself. Furthermore,
restrictions on advertising and sensitive education campaigns
have been found to be effective ways of minimising the harm associated
with alcohol and tobacco. Similar techniques would seem to be
possible with regards to cannabis and it may be a much more effective
strategy than employing the "strong arm of the law".
CONCLUSION
49. There are numerous legislative frameworks
and variations on these frameworks that policy makers can employ
to deal with cannabis use. No framework is a perfect one and all
will have unintended consequences, what is clear however is that;
50. Total Prohibition utterly fails in its
main aim to eliminate or significantly marginalise cannabis use.
It is the most costly of all options and generates massive income
for organised crime. It also leads to more harmful practices of
using cannabis and can increase the effect of cannabis as a gateway
through to other more harmful drugs. It criminalises otherwise
law-abiding citizens and deprives the state of significant taxation
revenues.
51. Total Prohibition with an Expediency
Principle has not led to an increase in cannabis consumption (perhaps
even a fall) and saves the state considerable funds previously
spent on law enforcement. Less harmful use of cannabis proliferates
and people with problem drug use are more likely to get treatment
(this is also true for all further options). The cannabis market
does however remain in the black market with a criminal element
remaining.
52. Prohibition with Civil Sanctions has
also not led to a rise in cannabis use. Law enforcement savings
are not as great as possible as the new sanctions come with associated
cost implications. Citizens are no longer criminalised for cannabis
use but there is the potential for net widening. Cannabis remains
in the black market.
53. Partial Prohibition may produce a very
small increase in cannabis use as the availability increases,
the increase in use would not be significant. Increased cannabis
use may also lead to reduced demand for other more harmful illegal
drugs and would remove individual users completely from the criminal
system and further reduce the gateway effect of cannabis. The
criminal element to some cannabis supply would remain and although
law enforcement costs would be significantly cut they would not
be abolished.
54. Regulation due to the greater visibility
and availability of drugs this option may also lead to a small
increase in cannabis use. Regulation would however remove cannabis
from the black market and severe the link with organised crime.
It would also enable the state to gain significant revenue through
taxation, to direct how cannabis is used and exclude at risk groups
(such as minors), as well as producing better harm information.
Regulation may also mean cannabis replaces alcohol as a choice
drug for some sectors of society with resulting decreases in harm
to health and society. This option may also lead to a decrease
in demand for other illegal drugs. Some law enforcement costs
will remain in enforcing regulatory rules but these will be small
compared to possible taxation revenue.
55. Free Availability would once again increase
cannabis use by a small amount and if totally unregulated may
lead to more harmful practices and an impact on at risk groups.
It would have similar effects as regulation in terms of ending
the black market, breaking the link with crime, replacing alcohol
as a drug of choice for some groups and decrease demand for other
drugs. It would also end costs associated with cannabis law enforcement.
56. None of the above options is flawless,
however, clearly there are some options that are more effective
than others. Legislation has a minor impact (if any impact at
all) on levels of cannabis use. Legislation does however have
a big impact on; the black market, criminalisation and organised
crime, cannabis as a gateway, access to treatment, law enforcement
costs, methods of use and the social harm of cannabis.
57. It is up to policy makers to balance
aims, objectives and harms and decide which legislative option
to pursue. It is however clear that any of the options outlined
would be preferable to the status quo.
CASE STUDY:
THE SOUTH
AUSTRALIA EXPIATION
SCHEME
58. A key aim of the 1987 amendments was
to sharpen the distinction between adults who could be seen as
"private" producers and/or consumers of cannabis and
those who were larger scale operators. Only the former—alleged
to have committed acts defined under the law as "simple"
cannabis offences—were to be issued with an expiation notice,
and could not be proceeded against in court (unless they failed
to pay the relevant fine within the prescribed period). However,
penalties for persons deemed by nature of their offence to be
larger scale producers or dealers were significantly increased.
59. When the Cannabis Expiation Notice Scheme
(CENS) was first introduced, the activities defined as simple
cannabis offences which could be expiated were as follows:
— possessing up to 100 gms of cannabis
(with possession of less than 25 gms attracting a lesser fine);
— possessing up to 20 gms of cannabis
resin (with possession of less than 5 gms attracting a lesser
fine);
— consuming cannabis in private;
— cultivating "small numbers of
cannabis plants for non commercial purposes"; and
— possession of equipment for consuming
cannabis.
60. This offence and penalty structure remains
essentially the same in 1998. However, the cultivation provisions
were amended in the Regulations Under the Controlled Substances
Act 1984 (No. 188 of 1990) to make the permissible limit for expiation
"up to 10 plants" rather than relying on the non-specific
phrase "small numbers for non commercial purposes".
RESEARCH FINDINGS
TO DATE
61. Significant studies include early monitoring
of the expiation notice system by South Australia's Office of
Crime Statistics41 and by the South Australian Drug and Alcohol
Services Council42, and a series of reports commissioned by the
National Task Force on Cannabis. This research clarified some
questions, but also disclosed problems with CENS which had not
been anticipated, as well as leaving other matters still to be
addressed.
62. The Office of Crime Statistics' review43
was based mainly on police records on offenders detected and notices
issued. It found nothing to support the view that rates of cannabis
use in South Australia had increased significantly after introduction
of the expiation approach. There also was no evidence of more
experimentation by "at risk" groups (eg teenagers) or
in "at risk" locations (eg schools). The study did,
however, disclose a major anomaly in the way CENS was taking effect.
Most (about 55 per cent of) people issued with notices for simple
cannabis offences were not expiating the fine within the required
period. They were being prosecuted and, in addition to incurring
a conviction and fine, were having to pay substantial court costs
and a "victims of crime" levy.
63. Drug and Alcohol Services Council (DASC)
research44 had access to high school, national and other survey
research on trends in cannabis use. Its tentative conclusion was
that patterns of consumption in South Australia had not been affected
by the introduction of expiation notices. Results from a longer
term review45 also have confirmed that increases in rates of cannabis
use in South Australia are consistent with changes in the rest
of the country.
64. One major unintended consequence of
CENS which was disclosed by DASCs 1991 study relates to "net
widening". Simplified procedures have rendered police far
more likely than previously to take action against people found
to be possessing, using or cultivating small amounts of cannabis.
Christie and Ali46 point out that between 1987-88 and 1993-94,
the number of cannabis offences dealt with under the CEN System
went from 6,200 to over 17,000: almost a three fold increase.
Clearly, introduction of CENS in South Australia seems to have
undermined law enforcement officers' willingness to exercise discretion
in relation to minor cannabis offending—an effect which
would appear inconsistent with legislators' intentions but which
has persisted to the present. One of the tasks for the present
study has been to explore reasons for this.
65. Other studies commissioned by the National
Task Force on Cannabis have concentrated on exploring the Australian
public's understanding of, and attitudes towards, cannabis laws,
documenting the harms associated with long-term use, and assessing
legislative options. Some findings—for example, that higher
percentages of residents in jurisdictions which have introduced
expiation now incorrectly believe that possession, cultivation
or use of small amounts of cannabis is legal47—are consistent
with concerns expressed by opponents of a CENS approach. Task
Force reviews also have confirmed that chronic use of cannabis
products can result in both psychological dependency and other
significant health problems—particularly if it is smoked.48
Overall, however, this national inquiry has found that public
opinion about on the reform of cannabis laws in Australia seems
to be shifting, with the majority (52-55 per cent) of the population
now favouring some form of decriminalisation.49 Moreover after
reviewing legislative options, an Australian Institute of Criminology-based
team has concluded that cannabis expiation notice schemes have
gone:
". . . a long way towards achieving their
goals and meeting the criteria for effective drugs policy . .
. This option takes account of the different patterns of use and
harms relating to cannabis, compared with other drugs. The policy
and legislative development has been accompanied by attention
to the details of implementation, rather than being expressed
in general terms only. It reflects an understanding of the patterns
of harm associated with cannabis, recognising that much of the
harm relates to the patterns of enforcement of the cannabis legislation,
rather than the use of the drug itself. The approach is realistic
and goals attainable, focusing on minimising the negative impact
of users on cannabis-related involved in the criminal justice
system, along with producing society-wide benefits in terms of
lessening the financial costs to the criminal justice system".50
66. Significantly, the Institute's expert
group was of the view that simply legalising small scale cannabis
cultivation, possession and use—the policy option which
many reform advocates portray as the most clear cut and "honest"—still
was not viable. Recent experience in Victoria, where the Parliament
has emphatically rejected an expert advisory committee's recommendation
that some cannabis-related activities no longer be classified
as offences,51 further validates this conclusion.
67. While expiation remains the most viable
reform on political grounds, few would argue that, from a criminal
justice perspective, it has been without anomalies and ambiguities.
Some apparent problems disclosed in previous studies, such as
the comparative severity of court costs and other penalties incurred
by non expiators, now seem to have been addressed.52 Others, such
as net widening, remain.
68. Reviewing police intelligence and other
reports, moreover, it is clear that classification of small scale
cultivation as an expiable offence continues to cause problems.
As mentioned earlier, one purpose of this inclusion was to provide
a means whereby cannabis users could be insulated from markets
controlled by "hard core" criminal networks. However,
drafting a set of words which adequately reflects this intention
has been difficult. Over time, the original formulation—"small
number for non-commercial purposes"—was found too imprecise
and in 1990 was amended to an exact number of plants. Recently,
many in the justice sector have been suggesting that the "10
plant limit" itself is being exploited by commercial producers
in ways that flout the legislators' intentions.
69. "Groups are taking advantage of
this system by growing 10 plants at a number of locations and
then pooling the harvest to increase the profit. The smaller crops
reduce the risk of detection and only attract a $150 fine when
discovered. This is prompting a review of the 10 plant limit with
a suggested limit of three plants for personal use."53
70. Ensuring that CENS remains a workable
option has not, it would seem, been without challenges for police
and other justice system stakeholders. Research such as ours,
which can provide them with an opportunity to speak directly about
relevant issues, is timely.
CURRENT ATTITUDES,
POLICIES AND
PRACTICES AMONG
LAW ENFORCEMENT
AND CRIMINAL
JUSTICE PERSONNEL
71. Through 28 intensive one to one interviews
and four focus group discussions, the study obtained intensive
feedback from 51 people involved in administration of South Australia's
cannabis laws. Respondents included the Chief Justice, the Chief
Magistrate, a representative from the Office of the Director of
Public Prosecutions, the National Crime Authority, police prosecutors,
the officer in charge of the Drug Task Force, Drug Task Force
and regional detectives and police patrol officers. Discussions
also were held with personnel in the Correctional Services and
Attorney-General's Departments.
72. Virtually all respondents considered
that it would be better for South Australia to continue to issue
expiation notices for minor cannabis offences rather than to revert
to a system of prosecutions. Reasons for maintaining this view
differed, however. Police, who constituted the majority of interviewees,
put emphasis on the convenience and cost-effectiveness of CENS.
Issuing a notice eliminated time spent on court attendance, and
also significantly reduced administrative burdens associated with
storage of court exhibits. Individual users still could be deterred
by being given notices on several different occasions.
73. By contrast, members of the judiciary
and others respondents working outside the enforcement system
tended to favour expiation because it provided a way for users
to avoid stigma and other adverse social consequences associated
with a court conviction.
74. Respondents agreed that expiation had
improved police and court efficiency. However quite a number of
police argued that there also had been some unintended consequences.
In particular, Drug Task Force and regional detectives argued
that individuals and syndicates may be exploiting provisions which
specified that cultivation of up to 10 plants should be dealt
with by means of an expiation notice. In their view, the advent
of hydroponics and techniques for cloning female plants meant
that it was possible for commercial crops to be grown, while staying
within the 10 plant limit. Some respondents argued that organised
crime had become involved in co-ordinating small scale cultivations.
When requested, the Police Department and the National Crime Authority
produced intelligence-based evidence that this was occurring.
The Director of Public Prosecution's Office confirmed that it
would be difficult to prosecute successfully individuals or groups
conspiring to exploit the CEN system by organising small cultivations
in several different locations.
75. Respondents who were members of the
judiciary or from the Office of the Director of Public Prosecutions
could not see any cause for major change to legislation or regulations.
Several police—particularly those in the Drug Task Force
or working on drug-related special investigations or as regional
detectives—argued that the maximum number of plants for
which a CEN could be received should be reduced from 10 to three
or four. They argued that the legislators clearly intended that
notices should only be issued in instances where cannabis was
being cultivated for personal use. People cultivating cannabis
for this reason should not require more than three or four plants.
76. Respondents from the law enforcement
sector stated that introduction of the expiation system seemed
to have caused some confusion within the general public. A number
of people detected possessing, using or cultivating small quantities
of cannabis now were under the impression that this was legal.
Police and other justice officials demonstrated good understanding
of technical aspects of the new laws. However operational law
enforcement officers were reluctant to contemplate exercising
discretion in the issuing of notices (for example, only issuing
a CEN if this was likely to achieve some public benefit), and
had not thought about ways of using expiation notices to reshape
cannabis markets (for example, to drive out organised crime elements
by flooding some locations or groups with notices).
DISCUSSION
77. From reviewing law enforcement and other
criminal justice attitudes and practices the general conclusion
is that, despite initial opposition from the Police Association
and some concerns expressed by the Police Department, the expiation
notice approach now enjoys general support. One major source of
concern was that, because cultivations of up to 10 plants to be
dealt with by means of expiation, some individuals and groups
may be exploiting the system for commercial purposes.
78. One way of dealing with this problem
may be to reduce to three or four the number of plants for which
a notice can be issued. Alternatively, police could give consideration
to improving intelligence systems, so that individuals or groups
exploiting the CEN system for commercial purposes could be "driven
out of the market" by being served with repeated notices.
Jurisdictions which took the latter course would still leave scope
for the genuine "amateur" cultivator, who may be unable
to obtain sufficient yield from a small number of plants.
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1 This paper is based on a paper compiled by
Mike Ashton of Drug and Alcohol Findings from the following two
reports:
I.Shona Morrison and David McDonald. A Comparison
of the Social Impacts of the Legislative Options for Cannabis
and their Enforcement: An Overview from the Literature. The Social
Impact of Legislative Options for Cannabis in Australia. Working
Paper No. 1. Australian Institute of Criminology, April 1995.
II. Adam Sutton and Elizabeth McMillan. A Review
of Law Enforcement and Other Criminal Justice Attitudes, Policies
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Canberra: Department of Health and Aged Care, May 1998.
2 Nadelmann, 1992.
3 Reuband, 1991.
4 Walters, 1994.
5 Amendments to the Opium Act of 1976 delineated
"drugs presenting unacceptable risks" from "cannabis
products" and guidelines were issued regarding the enforcement
of drug laws. Ultimately, the changes increased penalties for
possession and dealing in "drugs presenting unacceptable
risks" and decreased the penalties for possession and dealing
in cannabis products.
6 The South Australian Cannabis Expiation Notice
(CEN) System was introduced in 1987 as a result of a 1986 amendment
to the Controlled Substances Act 1984 which introduced civil penalties,
in the form of a fine, for possession or use of small amount of
cannabis, thus offenders could avoid obtaining a criminal conviction.
Non-payment of the fine or where commercial cultivation is suspected
may, however, result in criminal charges. A similar, but not identical,
expiation scheme was introduced in the ACT in a 1992 amendment
to the Drugs of Dependence Act 1989.
7 Those states were Alaska, California, Colorado,
Maine, Minnesota, Mississippi, Nebraska, North Carolina, Ohio,
Oregon and South Dakota.
8 DiChiara & Galliher, 1994.
9 Hall et al. 1994.
10 Robins, 1984; Bureau of Justice Statistics,
1992.
11 Marks, 1994. In the United States, US $13.2
billion of federal funds for were allowed for in the 1994 National
Drug Control Strategy, an increase of $1 billion over the previous
year.
12 Barnard & Withers 1989, cited in Marks
1993.
13 Marks, 1993.
14 Vallance, 1993; Sarre, 1994.
15 While black market prices for cannabis are
inflated, they are nothing like as high as that for heroin, or
indeed, as that of predicted black market prices for tobacco,
should it ever become prohibited. This is because the demand for
more dependence-producing substances, such as heroin or tobacco,
is less elastic than that for cannabis as a result of the presence
of habitual users who consume most of these products (Marks 1993).
16 Aldrich & Mikuriya, 1988.
17 Suggs, 1981.
18 Caputo & Ostrom, 1994.
19 Ibid.
20 Makkai, 1994.
21 Cook, 1980.
22 Reuter & Kleiman, 1986.
23 Nadelmann, 1992.
24 Reuter, 1987.
25 It is noteworthy that the rate of dependence
on all drugs by Dutch citizens is less than half of the US rate
of dependence on heroin alone (Vallance, 1993).
26 Engelsman, 1989; van Vilet, 1990; Wijingaart,
1988a, cited in Wardlaw 1992.
27 Reuter, 1987.
28 Kleiman & Saiger, 1989-90; Reuter, 1987.
29 Vallance, 1993.
30 Wish, 1990.
31 Sarre, Sutton & Pulsford, 1989; Christie,
1991; Donnelly, Hall & Christie in press.
32 Oregon: Carr, 1975; Nebraska: Suggs, 1981.
33 Johnston et al. 1981; Vallance 1993.
34 McGeorge, 1994.
35 DrugScope; "Cannabis and the Gateway
Hypothesis", 2001.
36 eg Cuskey et al. 1978
37 Hall et al. 1994.
38 Nadelmann, 1992.
39 Reuband, 1991.
40 Walters, 1994.
41 Sarre et al. 1989.
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