Chapter 4.

FIVE LEGISLATIVE OPTIONS

Outcomes

Although the price of cannabis has increased with the policies of prohibition, the increase has not had the intended effect of significantly reducing cannabis consumption. Despite half a century of total prohibition, cannabis is still the most widely used of illicit drugs in the US. Household surveys of drug use conducted by the National Institute on Drug Abuse have found that almost 68 million people in the US reported that they had used cannabis, including 9.7 million who reported that they had used it in the past month. In other words, some 33 per cent of the household population aged 12 years or older reported they had used marijuana in their lifetimes and 5 per cent reported having used the drug in the past month. (NIDA, National Household Survey on Drug Abuse: Population estimates 1991; cited in [9]US Bureau of Justice Statistics 1992, p26).

It could be concluded that the prohibition of cannabis has not been successful in eradicating or even significantly decreasing cannabis use in the United States. On the other hand, it could be argued that the policy has prevented an even higher level of use occurring. From 1981 to 1987, 5.3 million kilograms of marijuana were seized, however Customs, Coast Guard and the DEA believe that they seized only 10 per cent of the marijuana entering the country ([10]Inciardi & McBride 1990, p284). Despite the fluctuations in price that law enforcement efforts may cause to cannabis markets from time to time, demand for cannabis has, it is claimed, remained relatively unchanged. Nadelmann has argued that 'the greatest beneficiaries of the drug laws are organised and unorganised drug traffickers. The criminalisation of the drug market effectively imposes a 'value added tax' ([11]Nadelmann 1991).

The law enforcement program associated with prohibition has also been costly, both in financial and social terms. In 1986 the Federal expenditure on cannabis enforcement was estimated to be around $800 million, and it is thought to have significantly increased since then (Kleiman 1986). This figure does not include state and local expenditures on law enforcement and criminal justice. Every year there are 350,000 arrests for cannabis possession alone, making this the third most common cause of arrest in the US ([12]Kleiman 1992, pp267-8).

The social costs of the law enforcement program are also high. [13]Kleiman (1992) claims that the majority of people who are arrested for buying and using cannabis rarely do anything else that might bring them to the attention of the criminal justice system and that, for many users, being subject to arrest and criminal justice processing is the most substantial risk of using cannabis. The consequence of this is that large numbers of people acquire criminal records and are stigmatised for what many would see as relatively minor offences.

Kleiman also argues that the prohibition of cannabis undermines the symbolic value of the criminal law. Since arrest is the most immediate and frequent part of the punishment process for all crimes, it is important that arrest should retain its social meaning both as involving some substantial risk of further punishment (to maintain its deterrent value) and as resulting from the doing of some substantial harm (to maintain its moral force). The fact that simple possession of marijuana is the third most common cause of arrest puts strain on both of these symbolic links. This contribution to the devaluation of arrest as a sanction ought to be counted as a sizeable cost of current marijuana laws ([14]Kleiman 1992, p268).

It has also been claimed by some opponents of the 'war on drugs' that one by product of prohibition is the abuse of civil liberties (e.g. [15]Boaz 1990). In the United States, property can be seized if a police officer alleges that a small amount of a controlled substance, including cannabis, is found in the property. Forfeiture can occur without indictment or conviction of the owner of the property, a practice that Boaz claims is a violation of civil rights.

The prohibition of cannabis has also had a number of unintended consequences. It is argued that the patterns of cannabis use have become more dangerous and the amount of violence associated with the cannabis market has increased. First, it is argued that the successful interdiction of cannabis entering the US from overseas has resulted in increased cultivation and production of cannabis within the country. Nadelmann has claimed that the US has emerged as one of the world's leading producers of cannabis ([16]Nadelmann 1991, p787). He also argues that international drug traffickers have redirected their attention from cannabis to cocaine, resulting in a 'glut of increasingly potent cocaine being available and a shortage of comparatively benign marijuana' ([17]Nadelmann 1991, p787).

It is also argued that prohibition has caused an increase in the crime and violence associated with cannabis markets and an increase in the content of THC (the major psychoactive ingredient) of cannabis. When the majority of cannabis used was imported from other countries, the distribution system for cannabis was much smaller. The production of cannabis within the US, it is argued, leads to more small and medium producers with a wider, more competitive and possibly more violent distribution system (Kleiman 1986; [18]Wardlaw 1992). Domestic enforcement has, it is argued, resulted in more technology-intensive methods of cultivation and an increase in the potency of cannabis ([19]Reuter 1987). The fact that the sale of water pipes for smoking cannabis is illegal means that users more often consume cannabis in cigarette papers, which is the form of consumption most damaging to their lungs (Reuter 1987).

Given the costs of this form of prohibition, and its relative lack of success, it is perhaps surprising that the US drug strategy enjoys widespread support from the American people. In Gallup surveys conducted from 1969 to 1985, people were asked: 'do you think the use of marijuana should be made legal or not?'. In 1985, 23 per cent of respondents were in favour, 73 per cent opposed and 4 per cent expressed no opinion ([20]Inciardi & McBride 1990, p295). In October 1989 a Time/CNN poll found that 79 per cent of the population would be willing to pay higher taxes if the money were used for fighting the 'war on drugs' (Inciardi & McBride 1990, p295). The 'war on drugs' is supported by liberal and conservative politicians alike, public debate on drug strategy is rare, and discussion of the appropriateness of drug strategy has been described as 'a parlour sport for intellectuals' rather than a subject of general public concern.

As noted above, during the 1970s a number of US states removed the penal penalties for possession of small amounts of cannabis for personal use (a process referred to in the USA as 'decriminalisation'), but this move towards a more liberal approach was subsequently abandoned. Little information is available on the basis of the policy reversal, referred to as 'recriminalisation'. Apparently the decisions were made not on the basis of factual research into the impact of decriminalisation, but rather on ideological grounds. Opportunities were available for research comparing the experiences of the various states, but apparently such research was not undertaken, leaving policy to be made without a firm information base.6