Chapter 4.

FIVE LEGISLATIVE OPTIONS

Introduction

Many legislative options are available for cannabis and, as indicated in [1]Chapter 2, much confusion exists in the terminology used to describe them. In this chapter, we outline the five broad options available to Australian decision-makers, namely:

• total prohibition;
• prohibition with civil penalties for minor offences;
• partial prohibition;
• regulation; and
• free availability.

Some readers will be aware that this is the classification used by the South Australian Royal Commission into the Non-Medical Use of Drugs (the Sackville Commission) which reported in 1978. We have adopted their approach as it is, in our view, both precise and comprehensive. It avoids the semantic problems that often cause much confusion in debates about drug policies. In particular, it avoids the terms 'decriminalisation' and 'legalisation', terms which have different meanings for different authorities.

The five options listed capture all the approaches which people have in mind when they refer to 'decriminalisation' and 'legalisation', as well as other options which these two words may or may not encompass. The five legislative options are discussed in turn. We follow a consistent format to facilitate comparisons between them. First we describe the option; an example of it in operation follows (or, if there is no such example, we describe what it would look like if the option were implemented); we then outline the rationales which are given or are imputable (both philosophical and pragmatic rationales are covered); discuss the outcomes and impacts (observed or likely) flowing from its implementation; and in conclusion we evaluate the appropriateness of the option.

Option 1: Total prohibition

Under the system of total prohibition the use, possession, cultivation, importation, sale and distribution of any amount of cannabis are treated as criminal offences. People importing or dealing in cannabis may be liable to severe sanctions, and those using or found in possession of the drug are subject to arrest and prosecution. If convicted, they acquire a criminal record and may be subject to a variety of sanctions including imprisonment.

'Total prohibition' can take a number of forms. For example, although both The Netherlands and the United States have legislation that can be described as total prohibition, the differences in the strategies used to enforce, or not enforce, the legislation mean that the drug policies in these two nations are dramatically different. This section will outline the background and rationale of American and Dutch drug policies, and will evaluate them in light of the goals outlined in [2]Chapter 2.

PART A: THE UNITED STATES:

Total legislative and administrative prohibition: Drug law and policy in the United States

This examination of drug policy will focus on the US Federal Government's strategy of total prohibition.5

The Federal Controlled Substances Act (CSA) groups drugs into five categories. These categories are said to be based on the drugs' perceived potential for abuse, accepted medical use and propensity to create physiological and psychological dependency, for users (Inciardi 1990). The US Drug Enforcement Agency (DEA) is responsible for classifying drugs and for periodically updating classifications. Cannabis is listed in Schedule 1 of the classification scheme. Schedule 1 drugs are seen to have a high potential for abuse, no currently accepted medical use in the United States and no acceptable safe level of use under medical supervision.

Violations of the CSA are separated into two offence categories: first, the possession of controlled substances; and, secondly, the manufacture, delivery or sale of controlled substances. All first possession offences carry a penalty of up to one year's incarceration and a fine of $1,000 to $5,000. Second offences are punishable by more severe sanctions. The basic penalty for the manufacture, delivery or sale of less than 50kg of marijuana, 100 or more marijuana plants, less than 10kg of cannabis resin (hashish) or less than one kilogram of cannabis oil is punishment by up to five years incarceration and/or a $250,000 fine. Second or subsequent offences are punishable by up to 10 years incarceration and/or a $500,000 fine. The penalty for the manufacture, sale or delivery of between 50kg and 100kg of marijuana is a sentence of up to 20 years imprisonment and/or a fine of up to $1 million. Second or subsequent violations of manufacture/delivery/sale provisions are punishable by up to 30 years imprisonment and/or up to $2 million in fines for individuals and $30 million for others.

The CSA also provides for other sanctions against people who profit from drug dealing. An offender can be required to forfeit to the state all controlled substances, raw materials or equipment used to manufacture, import or export controlled substances, all conveyances used to transport controlled substances, all money and property gained through contravening the CSA, and all property used to facilitate violations of the CSA. The proceeds of forfeiture are used to fund drug law enforcement.

Drug policy in the US has, in part, been conceptualised in the economic terms of supply and demand. Primarily the focus has been on reducing the supply of illegal drugs, including cannabis, through such measures as destroying crops at the source or interdicting supplies as they enter the US. Cannabis crops, for example, may be spotted from the air by helicopter, sprayed with herbicide or eradicated by ground teams. Destroying cannabis crops in other countries, particularly South American, and encouraging other governments to participate in law enforcement efforts, have formed an important part of the American drug strategy of reducing the supply of drugs.

Central to the US Government's policy on reducing demand is the idea of creating a climate of intolerance towards all drug use through concepts such as 'user accountability' and 'zero tolerance'. 'User accountability' is the idea that individual users should be made to recognise that their drug use, no matter how minor it may appear to be, is part of a drug problem that eventually results in the death of some users ([3]Wardlaw 1992). The notion of 'zero tolerance' holds that no drug offence should be allowed any degree of tolerance and makes little distinction in terms of culpability between the different scales of drug offences ([4]US Bureau of Justice Statistics 1992).

Rationales

Pragmatic rationales

The eradication of all illicit drug use is the central aim of US drug policy and it is thought that prohibition is the most effective means of reaching this goal. Cannabis use is seen as a part of a larger drug problem. Prohibition is thought to decrease cannabis usage in the following ways:

• prohibition discourages people from experimenting with drugs and
• deters people convicted of drug offences from re-offending; and
• prohibition causes the price of illicit drugs to increase, making them more difficult to obtain.

Philosophical rationales

Drug policy in the US is based on a deeply held belief that all illicit drug use is extremely harmful, both in terms of the dangers that it poses to users and in terms of the dangers that it poses to the social fabric of American society. There is very little distinction made between cannabis and other drugs. In 1971, President Richard Nixon declared that drug abuse was 'public enemy number one' ([5]Wijingaart 1991, p95) and, more recently, one commentator has claimed that: Drug use in America today is a major threat to our health, productivity, and quality of life (Du Pont 1984: xvi, [6]cited in Wijingaart 1991, p101).

Section 801 of the Federal Controlled Substances Act states that: The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.

In the US, official analysis of the social problems associated with drug use has been narrow, and American policy makers have tended to see drugs themselves as the central source of all the ills associated with drug use in that country. Analyses of the social context of drug taking or of the relationship between drug taking and poverty have apparently had little impact on the development of drug policy.

Central to the official American idea of 'harm' caused by drugs is that all drugs are 'addictive', and that any experimentation with drugs will inevitably result in dependency. Associated with the fear of dependence is the fear, in many cases unrealistic, of the effect that drug use has on individuals. Although not accepting this characterisation, James Inciardi has described the stereotype of the American drug user in the following terms: 'Dope fiends', as they were called, were sex-crazed maniacs, degenerate criminals, and members of the 'living dead'. 'Narcotics', including marijuana and cocaine ... destroyed morality, addicts were sexually violent and criminally aggressive, they were weak and ineffective members of society; addiction was contagious since users had a mania for perpetuating the social anathema of drug taking; and finally, once addicted, the user entered into a lifetime of slavery to drugs ([7]Inciardi 1986, p100).

It has been claimed that those debating drugs policy in the US have blurred the distinction between the effects of drug use and the effects of the prohibition of drug use ([8]Wardlaw 1992). Drug use is therefore thought to be inextricably linked to violent crime, users are conceptualised as criminals, and policy towards any level of drug use is punitive and coercive. This philosophy of drug use is evident in the rhetorical language of US policy makers who talk about 'zero tolerance' and who have called their drug strategy a 'war on drugs'.

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

CONCLUSION - THE USA APPROACH

The US drug policy does not seem to have met many of the policy goals identified in the early part of this report.

First, cannabis policy has not been separated from that of other drugs. Policy makers see only the larger 'drug problem' and have not recognised the need to have different policies for different drugs.

Secondly, in the USA the arguments for the total prohibition of all drugs are highly emotive; arguments about the consequences of drug use have not been separated from arguments about morals. Consequently, this has led to the idea that is implicit in much US drug policy, that all illicit drugs and consequently all drug users are inherently criminal and even evil. The conceptualisation of the drug problem in such uncompromising, black and white terms means that there is little room to make exceptions for arguably 'soft' drugs such as cannabis.

Thirdly, the goals of the 'war on drugs' are not realistic. Kleiman has argued that US drug policy amounts to a 'holy war' against drugs, and as such it is not surprising that the policy goals are far from realistic ([21]Kleiman 1992). Those creating and implementing the US drug strategy do not talk of 'minimising the harm' arising from drug use (as in Australia's National Drug Strategy); rather they aim to completely eliminate drug use, a goal that many would consider to be unreachable.

Finally, in [22]Chapter Two of this report, we have suggested that the harms caused by the drug control regimes themselves should not outweigh the harms prevented by them. With respect to cannabis use it has been argued that the harm caused by control regimes clearly outweighs the harm caused by the drug ([23]Kleiman 1992). It has also been argued that those developing policy in the US have failed to make the distinction between the problems created by drugs and the problems created by prohibition (e.g. [24]Wardlaw 1992). The USA has a number of severe social problems associated with drug use, including forcing users into the criminal milieu, demeaning the criminal law in the eyes of users, increasing the number of people with criminal records, increasing the level of imprisonment, and increasing the level of transmission of the AIDS virus. These problems, and the relatively limited achievements in reducing drug use and drug-related problems, have prompted ever increasing efforts in the 'war against drugs'. It is likely, however, that many of the social problems are created not by the drugs themselves but by the strategy of total prohibition.

Part B: The Netherlands:

LEGISLATIVE PROHIBITION WITH AN ADMINISTRATIVE EXPEDIENCY PRINCIPLE

Background

Between the mid-1960s and the mid-1970s in The Netherlands, the use of illegal drugs grew from 'almost non-existent to constitute a serious health and public order problem in urban areas' ([25]van Vliet 1990). Although the use of cannabis in The Netherlands came to public attention in the late 1950s, debate on drug policy only began in earnest when heroin use and the problems associated with it became increasingly visible between 1972 and 1975.

Amendments to the Opium Act were introduced in 1976 and can be seen as heralding a new era in drug policy. Until this time drug policy in The Netherlands was much like that of other countries ([26]Wijingaart 1990, p668, cited in [27]Wardlaw 1992, p16). Drug law and policy in The Netherlands The Opium Act of 1976 makes a clear distinction between 'drugs presenting unacceptable risks' (heroin, cocaine, LSD, amphetamines) and 'cannabis products'. The changes introduced in this legislation increased penalties for dealing in 'drugs presenting unacceptable risks' and decreased the penalties for possession and dealing in cannabis products.

The purpose of the legislation was to separate drug markets and user groups in an effort to prevent cannabis users from involvement in the 'hard' drug scene. Although the legislation falls clearly within a total prohibition framework, as Dutch commentators have pointed out 'law in practice is more relevant than law in books' ([28]Leuw 1991). A clause in The Netherlands Code of Criminal Procedure, known as the 'expediency principle', states that the prosecution office may decide whether or not to enforce certain laws, to prosecute or to initiate criminal investigation on the basis of whether or not such action would be 'in the public interest'. Using this clause, the Minister of Justice issued guidelines in 1976 for the enforcement of drug laws and the investigation and prosecution of breaches of drug laws.

Essentially it is these guidelines rather than legislation that determines drug policy in The Netherlands. [29]Marshall et al. (1990) have noted that the priorities in the guidelines correspond to the distinctions made between 'hard' and 'soft' drugs in the Opium Act. High priority is given to detecting the importation and exportation of drugs that are seen to represent an 'unacceptable risk'.

Investigation and prosecution of 'soft' drug violations, with the exception of the import and export of large amounts of such drugs, are assigned a low priority (Marshall et al. 1990). According to the guidelines, dealing, possessing or producing small amounts (30g or less) of marijuana, do not require police investigation, arrest or prosecution. A low priority is also given to the investigation and prosecution of retail dealing in cannabis, and police are only required to confront dealers when they advertise publicly or conduct their business in a provocative manner. As long as there is no sale to minors, no advertising, no sale of 'hard' drugs, and if the dealing takes place without causing a public nuisance, then (generally speaking) there will be no police intervention. Where there are breaches of the type outlined above, administrative measures, such as the withdrawal of permits to serve drinks and food, are imposed. If the parties involved persist in contravening the guidelines, they are issued with a warning. Confiscation of the drugs may be another consequence of continuing breaches of the guidelines. [30]Marshall et al. (1990) report that only very rarely is imprisonment the consequence of such violations. The extent to which the guidelines, or the Opium Act, are followed depends on local circumstances. Sanctions imposed may vary between different districts of The Netherlands.

Rationales

Pragmatic rationales

The goals or rationales for Dutch drug policy include the following:

• to promote safer methods of consumption of cannabis;
• to limit sales of cannabis to specialist sellers;
• to limit progression from cannabis use to other drugs;
• to limit the amount of violence in the cannabis distribution system; and
• to limit the substitution of other (more damaging) drugs for cannabis.

Philosophical rationales

The 'drug problem' in The Netherlands has always been recognised as a complex social problem and as such, law enforcement and penal sanctions alone have never been seen to represent a complete solution . During the parliamentary debate on the revised Opium Act of 1976 Irene Vorrink, the Minister of Public Health, identified the following aims that form the basis of drug policy in The Netherlands:

• the central aim is the prevention and amelioration of social and individual risks caused by the use of drugs;
• a rational relation between those risks and policy measures;
• a differentiation of policy measures which will also take into account the risks of legal recreational and medical drugs;
• a priority of repressive measures against the trafficking of drugs other than cannabis; and
• the inadequacy of the criminal law with regard to any other aspect of the drug problem ([31] Handelingen 1976, cited in Leuw 1991, p10).

The aims outlined above illustrate that The Netherlands drug policy is characterised by a number of factors. First, the criminal law was never thought to be a solution to the drug problem. Government policy with respect to 'hard' drugs is broadly based and focuses on treatment and assistance for the user and punishment for the commercial dealer ([32]Marshall et al. 1990). Secondly, it is recognised that the basis of drug policy should be to minimise harm rather than eradicate drug use, and thirdly, it is argued that drug policy should not be the same for all illicit drugs. Cannabis is seen in a different light from other drugs. Clearly there are pragmatic reasons for this separation, as the user markets for different drugs are divided and users of cannabis are, it is argued, less likely to progress to the use of 'harder' drugs.

However there is also evidence that suggests that the use of cannabis was never perceived by Dutch society to be a particularly compelling social problem. Leuw claims that: In accordance with the legal differentiation between cannabis products and hard drugs, drug policy encompassing prevention and assistance developed primarily in reaction to the emerging heroin problem. The cannabis problem - if there ever had been one seemed to have disappeared from the face of the earth even before the amended Opium Act became effective ([33]Leuw 1991, p725).

The separation of cannabis from other drug problems also has had the effect of making the drug problem more manageable. [34]Van Vliet (1988) is critical of the US style of drug policy that makes no moral or legal distinction between different types of drug offences or different types of drugs and claims that 'by lumping all these different phenomena together, societies and governments help to create a problem which is unsolvable' (van Vliet 1988). Conversely, The Netherlands breaks down the 'inextricable' problem into 'manageable bits'.

In the mid-1980s, a Government-sponsored research project led to the development of the concept of 'normalisation' or 'cultural integration' which added to the sophistication of Dutch drug policy ([35]van Vliet 1990;[36] Leuw 1991). 'Normalisation' recognises that some type of drug use is natural to all human societies and argues that the eradication of all drug use is an unrealistic policy goal. The reduction of drug use and the social and individual problems associated with it are felt to be far more reasonable policy goals. Central to the concept of 'normalisation' is the idea that drug users should not be marginalised from the rest of society. In a speech to the Dutch Parliament, the State Secretary of Health stated, in 1985, that: Normalisation ... includes the cultural integration of drug users in society ... This does not mean the elimination of the drug phenomenon as a social reality: it means a change of context which clears the way for a different approach ... drug addicts should be treated neither as criminals nor as dependent patients but as 'normal' people to whom we can make 'normal' demands and who should be offered 'normal' opportunities ([37]van Vliet 1990, p727).

The implications for cannabis policy of 'normalisation' are clear. According to the Dutch, the eradication of cannabis use is an unrealistic policy goal and the creation of a 'deviant status' for drug users means that users are more likely to 'drop out' of main stream society and perhaps start using more dangerous drugs. The use of the criminal law to deal with cannabis use would marginalise cannabis users and this would be seen as unnecessarily destructive in terms of its social costs.

Outcomes

Today it is possible to openly buy and use cannabis in a number of coffee shops in Amsterdam and other regional centres. Most of these coffee shops do not sell any other drugs and many do not even sell alcohol. However, the public consumption of cannabis has been subject to criticism from other countries, who seem to equate public consumption with increased use. Downes (1988) has claimed that the image of The Netherlands portrayed in the international media is one of 'a blinkered liberalism belatedly struggling to cope with the results of its own permissiveness' and cites an example of a British journalist who wrote in the Sunday Times that 'Amsterdam has a long history of free-thinking and tolerating most things except law and order ... But the city's tolerance has been worn thin by crime, drug abuse and militant squatters' ([38]Downes 1988, p123).

Unsurprisingly, Dutch commentators do not subscribe to the view that their society is on the brink of collapse. They argue that the 'hash cafes' have been integrated as normal urban facilities and do not pose a threat to public order ([39]Leuw 1991). The point has also been made that visible drug use only signals failure if maintaining an image of a drug-free society is an aim of drug policy (Leuw 1991). In contrast, the Dutch, who aim to prevent drug users from being marginalised, may see visible drug use as a sign of success.

Despite the impression presented in the international media, most studies suggest that the policies implemented in The Netherlands have not resulted in any significant increase in drug use or changes in patterns of use ([40]Engelsmann 1989; Wijingaart 1988a cited in [41]Wardlaw 1992, p23). A recent study combined the results of over 20 Dutch studies that examined the percentage of the population who had 'ever used' cannabis and compared them with data from Norway, Sweden and the USA. The period from 1970 to 1988 was examined and the authors concluded that:

The results of the time analysis show that the prevalence of cannabis use since 1970 decreased, whereas the policy became more tolerant. Since 1979 a slight increase in the use of cannabis can be observed. A comparison with data from other countries with a more restrictive policy reveals that the use of cannabis in The Netherlands is on the same level as in Sweden and Norway (around 10-15 per cent), but far lower than that in the US (exceeding 50 per cent). However the downward trend in these three countries since 1984 did not occur in The Netherlands ([42]Driesen, van Dam & Olsen 1989, p11 cited in Leuw 1991).

The savings made to law enforcement and criminal justice budgets of not processing large numbers of cannabis offenders are substantial and should be seen as one of the primary benefits of the Dutch approach to drug policy. In addition, the cannabis market and distribution system is free from violence ([43]van Vliet 1990).

It has also been argued that the Dutch approach has led to safer patterns of cannabis use. First, the fact that users of cannabis do not seem to turn to other more dangerous drugs is used as evidence that the policy of the separation of drug markets is working ([44]van Vliet 1990). [45]Cohen (1988) argues that Dutch cannabis users, unlike their counterparts in the USA, are not likely to ingest the herbicide paraquat in the cannabis that they consume, and are also more likely to consume the drug in a safer way because the sale of drug paraphernalia such as water pipes is legal in The Netherlands (Cohen 1988). Cohen has also argued that 'the knowledge of how to regulate cannabis use has become an inconspicuous part of local Dutch youth culture because the development of drug use rules was not pushed out of the mainstream and into deviant sub cultures' (Cohen 1988, p24).

In terms of the goals that Dutch policy makers identified, drug policy in The Netherlands has been moderately successful. However, the Dutch approach to drug policy has not been popular internationally: Germany and the USA in particular have been vocal in their opposition. In recent times this has led to the introduction of tougher drug policies with respect to 'hard drugs' ([46]Marshall et al. 1990), however these pressures have not yet had any impact on cannabis policy. Indeed, it has been speculated that Dutch cannabis policy is unlikely to change as a result of international pressure ([47]Wardlaw 1992).

CONCLUSION - THE DUTCH APPROACH

In a variety of ways The Netherlands drug policy meets many of the criteria outlined in [48]Chapter 2.

First, Dutch policy makers have recognised the need to have different policies for different drugs. The idea of separating 'drugs of unacceptable risk' and cannabis is based on the idea that the control regime that appears to be appropriate for one illicit drug need not apply to others.

Secondly, policy makers have managed to separate arguments about the consequences of drug use from arguments about morals. In fact, Dutch policy was intended to be 'non-moralistic' ([49]Leuw 1991). It has been claimed that, in The Netherlands, drug use has never been seen as a 'moral' issue and it is argued that: Political speeches elaborating on the abhorrence of illegal drugs have seldom been staged. They would appear as quite misplaced in Dutch political culture. Consequently there are no votes to be won or positions to be conquered by rallying an anti-drug theme ([50]Leuw 1991).

Thirdly, this non-moralistic approach to drug policy has led to the development of realistic policy goals with respect to cannabis use. [51]Leuw (1991) notes that in The Netherlands there has been no pledge of 'solving the problem' of drug use. Instead of attempting to eradicate drug use Dutch authorities have adopted the more pragmatic goal of minimising the risks and damaging effects of drug use. Of concern to some observers, however, is the Dutch approach of formalising inconsistency between the provisions of legislation and its implementation. An argument can be advanced that this conveys confusing messages to the community. It is preferable, some would argue, for legislation and policy on implementation to be aligned so that both permit (or proscribe) the use of cannabis in certain circumstances. Having legislation creating an offence of cannabis use, along with policy declaring that it is inexpedient to prosecute such offences, seems to be acceptable in the Dutch context, although it would possibly be unacceptable in other cultures. We return to this apparent difficulty in the concluding chapter of this report.

Conclusion - the total prohibition options

The Netherlands has been successful in terms of the goals identified by Dutch policy makers. Their policy has not resulted in the increased use of cannabis; indeed levels of cannabis use are markedly lower than those seen in the United States or Australia. There is little violence associated with the cannabis distribution system, cannabis users do not seem to progress to using more serious drugs and the drug is consumed in a manner whereby the risks of harm are minimised.

Dutch policy is also relatively successful in terms of many of the policy goals that we discussed above. The separation of cannabis from other drugs ensures that The Netherlands has a more manageable drug policy. The goals of policy are realistic and policy makers have not confused moral arguments with arguments about the consequences of drug use.

In contrast, the US drug strategy with respect to cannabis does not seem to be particularly successful. Despite considerable economic and social costs, cannabis use is far from being eradicated in the USA. Cannabis users may be consuming the drug in a particularly dangerous manner, the illicit drugs distribution system (of which cannabis is a part) is associated with violence, and law enforcement, criminal justice processing and the imprisonment of cannabis-related offenders costs American tax payers millions of dollars every year.

The USA has not emerged favourably in relation to the goals identified in the first part of this report. Apparently American policy makers have not recognised the need to consider different policy strategies for different drugs, leaving cannabis part of the larger, seemingly unsolvable 'drug problem'. Moral arguments have been confused with arguments about the consequences of drug use, and this has led to the development of unrealistic policy goals and a failure to recognise that the control regime imposed to deal with the problem of cannabis use may be causing more harm than the cannabis use itself. Examples from the USA and The Netherlands demonstrate that the legislative option of total prohibition can be implemented in very different ways. The two countries have very different philosophical and pragmatic rationales for their policies and, unsurprisingly, the outcomes of the policies have varied considerably.

In developing policy, international examples are of benefit to Australian policy makers. It should be remembered, however, that the relative success or failure of drug policies depend as much on cultural factors, existing patterns of drug use, and public views of drug use, as they do on the soundness of the policy.

References

Boaz, D. 1990, 'The consequences of prohibition', in The Crisis in Drug Prohibition, ed. D. Boaz, Cato Institute, Washington DC. Cohen, P. 1988, 'Building upon the successes of Dutch drug policy', The International Journal on Drug Policy, vol. 2, no. 2, pp22-24. Downes, D. 1988, Contrasts in Tolerance: Post-war Penal Policy in The Netherlands and England and Wales, Clarendon Press, Oxford. Driessen, van Dam & Olsen 1989, 'De ontwikkeling van het cannabisgebruik in Nederland, enkele Europese landen en de VS sinds 1969', Tijidschrift voor alcohol, drugs en andere psychotrope stoffen, vol. 15, pp2-15, cited in Leuw, E. 1991, 'Drugs and drug policy in The Netherlands,' in Crime and Justice: A Review Of Research, vol 14., ed. M. Tonry, University of Chicago Press, Chicago. Engelsman, E. L. 1989, 'Dutch policy on the management of drug-related problems', British Journal of Addiction, vol. 84, pp211-218. Inciardi, J. (ed.) 1990, Handbook of Drug Control in the United States, Greenwood Press, New York. Kleiman, Mark A.R. 1989, Marijuana: Costs of Abuse, Costs of Control, Greenwood Press, United States. Kleiman, Mark A.R. 1992, Against Excess: Drug Policy for Results: Alcohol, Cocaine, Heroin, Marijuana, Tobacco, Basic Books, New York. Kleiman, Mark A.R & Saiger, A.J. 1990, 'Drug legalisation: The importance of asking the right question', The Hofstra Law Review, vol. 18, 1989-90, pp527-565. Leuw, E 1991, 'Drugs and drug policy in The Netherlands,' in Crime and Justice: A Review Of Research, vol. 14, ed. M. Tonry, University of Chicago Press, Chicago. Marshall, I E., Anjewerierden, O. & Atteveld, H.A. 1990, 'Toward an Americanisation of Dutch drug policy', Justice Quarterly, vol. 7, no. 2, pp391-420. Nadelmann, E.A. 1991, 'Drug prohibition in the United States: Costs, consequences and alternatives', Notre Dame Journal of Law, Ethics and Public Policy, vol. 5, no. 37, pp783-808. National Institute on Drug Abuse 1991, Household Surveys as cited in US Bureau of Justice Statistics 1992, Drugs Crime and the Justice System, US Government Printing Office, Washington. Reuter, P. 1987, 'What impasse? A skeptical view', Nova Law Review, vol. 11, no. 3, pp1025-1040. Single, E. 1989, 'The impact of marijuana decriminalisation: An update', Journal of Public Health Policy, vol. 10, no. 4, pp456-466. US Bureau of Justice Statistics 1992, A National Report. Drugs, Crime and the Justice System, US Government Printing Office, Washington. van Vliet, H. 1988, 'Drug policy as a management strategy', The International Journal on Drug Policy, vol. 1, no 1, pp27-19. van Vliet, H. 1990, 'The uneasy decriminalisation: A perspective on Dutch drug policy', Hofstra Law Review, vol. 18, 1989-90, pp717-750. Wardlaw, G. 1992, 'Overview of national drug control strategies' in Comparative Analysis of Illicit Drug Strategy, Monograph Series no. 18, National Campaign Against Drug Abuse, eds M. Bull, D. McDowell, J. Norberry, H. Strang, & G. Wardlaw, AGPS, Canberra. Wijingaart, Govert Frank van de 1991, Competing Perspectives on Drug Use: The Dutch Experience, Swets and Zeitlinger, Amsterdam.