Statement of
R. Keith
Stroup, Esq.
Executive
Director
National
Organization for the Reform of Marijuana Laws (NORML)
presented to
the seminar entitled
“Beyond
Prohibition: Legal Cannabis in Canada”
Saturday, May
8, 2004
Vancouver,
Canada
First I want to thank Kirk Tousaw and the BC Civil Liberties Association for sponsoring this seminar entitled “Beyond Prohibition: Legal Cannabis in Canada.” They have provided us an opportunity to advance the public debate on marijuana policy beyond the usual discussion of medical use and decriminalizing the marijuana smoker. I hope we can use this time to refine the several issues that need to be addressed so we can more effectively move forward with legalization as the preferred public policy option for controlling marijuana.
Hundreds
of millions of people around the world smoke marijuana, and the vast majority
of them smoke it responsibly and without harm. Yet approximately 700,000 people
in my country alone are arrested each year on marijuana charges, and 88% of
those arrests are for simple possession of marijuana for personal use. It is
time we changed these destructive policies.
Marijuana
prohibition wastes an enormous amount of law enforcement resources that should
be focused on serious and violent crime. In the US it is estimated that we
spend approximately $10 billion each year in a futile attempt to identify and
prosecute marijuana offenders.
Further
it invites government into areas of our private lives that are inappropriate.
Just as we do not want government knowing what books we read, the subject of
our telephone conversations, or the way we conduct ourselves in the privacy of
the bedroom, neither should the government be involved in the decision of
whether we drink alcohol or smoke marijuana when we relax at the end of the
day.
And
finally, marijuana prohibition needlessly destroys the lives and careers of
hundreds of thousands of good, productive citizens each year in the US, for no
good reason. We have declared war against a whole segment of our population,
without cause. We must stop arresting responsible marijuana smokers.
NORML
supports the elimination of all penalties for the personal use of marijuana,
regardless of whether one is smoking marijuana for medical use or for personal
pleasure. We also support the right of consumers to cultivate marijuana for
personal use, and to share small amounts of marijuana among friends. This is
generally called “decriminalization.” Decriminalization is a half-step, but an
important one because it would remove the consumer from the criminal justice
system, and eliminate nearly 90% of the current marijuana arrests in my county.
In essence, it is a cease fire in the war against marijuana smokers.
We
all recognize that alcohol and tobacco cause far more harm to the user and to
society than does marijuana, yet both are legal and we certainly do not arrest
those who use these drugs responsibly. Rather, as a society we focus on
discouraging abuse and minimizing the harm to society. We need to adopt a
similar policy for marijuana. We need to discourage abusive behavior, but stop
arresting otherwise law-abiding citizens who smoke marijuana responsibly.
Incidentally,
although the Bush Administration and the Republican leadership in the US
Congress are committed to continuing the criminal prohibition of marijuana,
less well know is the fact that twelve individual states in America have
already decriminalized marijuana. Beginning with Oregon in 1973[1],
a series of states have stopped arresting marijuana smokers under state law, in
most cases substituting a civil fine, enforced with a citation instead of an
arrest, for minor marijuana possession cases. In Alaska, because of an Alaskan
Supreme Court decision[2]
interpreting the privacy guarantee in the state constitution, it is perfectly
legal for an adult to possess up to four ounces of marijuana in private.
In
11 of these states, these decriminalization laws have been in effect for more
than twenty-five years, and the results have been overwhelmingly favorable.
There has been no increase in use of marijuana in those states that have
stopped arresting marijuana smokers, as compared to neighboring states that
continue to arrest their citizens for marijuana offenses[3].
Decriminalization is a smart public policy that deserves to be adopted
everywhere.
III. Decriminalization is not
enough!
NORML
further supports the establishment of a legally regulated market where
consumers could buy marijuana from a safe and secure environment. Consumers
should not have to resort to obtaining their marijuana from an underground, and
sometimes dangerous, unregulated market.
Simply
decriminalizing marijuana is not enough. Decriminalization leaves the existing
illegal, underground market for marijuana intact. Just as we learned with
alcohol prohibition in the US in the 1920s, only by establishing a legally
regulated market can we eliminate the violence, corruption and crime associated
with a black market. Marijuana prohibition is a terribly corrupting influence
in American society.
In
addition, without a legally regulated market, consumers are forced to obtain
their marijuana from the same unregulated, underground market that frequently
has far more dangerous drugs available. As a public health matter, we should
all be learning from the Dutch experience, and separating the marketing of
marijuana from the marketing of more dangerous illicit drugs.
IV.
What Should Legalization Look Like?
As
consumers, we need a legal source for obtaining marijuana. That is the most
basic requirement.
For
those who prefer to provide for their own needs, NORML further believes it is
important that consumers have the option of growing a few marijuana plants for
personal use. Most marijuana smokers
will probably not exercise this option, just as few alcohol drinkers go to the
trouble of brewing their own beer, although they can legally do so in the US.
Nonetheless, to accommodate those who prefer their own homegrown products,
whether we’re talking about tomatoes or cannabis, NORML strongly supports the
right of any adult to grow his own marijuana under any system of legalized
marijuana.
In
addition, it is important that the legalization model we adopt provide
consumers with a convenient, affordable market with a variety of marijuana
strains and potencies. The market must
generally satisfy the consumer demand. To do otherwise would be to invite the
continuation of a thriving black market to fill the marketing gap. By providing
consumers with choice of products of similar quality to those available on the
underground market, but for less money and without the risks of dealing with an
unregulated market, the underground market will very shortly disappear.
At
NORML, we recognize that any legalization system will also likely include age
controls. There will almost certainly be a ban against the use of marijuana by
minors, and selling marijuana to minors, as currently exists for alcohol.
There
are those who make an argument that these are matters better left to the
parents; that the government should defer to the parents to decide at what
point our kids are mature enough to drink alcohol, to smoke marijuana, to have
sex, etc. As a parent, I have some sympathy for that position, but I think it
is politically naive. When we finally have the political support necessary to
legalize marijuana, age limitations to protect kids will almost certainly be
part of the package. At least in the United States, that is the political
reality.
Similarly,
as with alcohol and tobacco, legal marijuana will almost certainly carry a
significant tax. Often called “sin taxes,” there is precedent at least in the
US for taxing a legal intoxicant, and we should not oppose reasonable taxes.
Rather
I would hope the pro-legalization forces could agree that we can support a tax
on legal marijuana, as the trade-off for bringing the market above ground. We could offer to use the tax revenue -- and
it would be significant -- to fund drug education and treatment programs, to
reinforce the need for moderation in all things. The availability of this
significant source of state revenue should eventually be a valuable asset in
our efforts to win legislative support. To my knowledge, marijuana smokers are
the only significant constituency who are raising our hands and asking to be
taxed, because with taxation comes legitimacy. Ours is a culture that would
like to come in from the cold.
Because
the actual cost of growing good quality marijuana, if it were legal to do so,
would only a few dollars an ounce, it is obvious that the state could assign a
significant tax on the top of the production cost, and still offer legal
marijuana at far less than it costs in today’s unregulated market. Some studies
have suggested that marijuana tax revenue post-legalization might be in the
area of $5 billion each year in the US[4].
V. Are
countries limited in their ability to legalize marijuana by international drug
control treaties? If so, can those treaties be amended or renounced?
There
are three relevant international drug control treaties: The Single Convention
Treaty of 1961[5], which
includes cannabis and all of its extracts on Schedule I, the schedule for the
most dangerous drugs; the 1971 Convention on Psychotropic Substances[6],
which includes THC and its isomers on Schedule I ; and the United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, 1988[7].
Many
countries who are signatories to the major international drug treaties have
nonetheless liberalized their marijuana laws over the last several years.
Several countries in western Europe have eliminated penalties altogether for
personal marijuana smoking, and in Holland limited amounts of marijuana are
legally sold in hundreds of coffee shops throughout the country. While
proponents of marijuana prohibition have often argued that international treaty
obligations require signatories to adhere to a rigid national policy of
criminal marijuana prohibition, several studies have concluded that these
treaties do not prohibit countries from relaxing legal restrictions on the
personal use or cultivation of marijuana.
Most
recently, a legal study released by the British think-tank DrugScope[8]
concluded
that governments have “considerable room for maneuver under the terms of the
three drug control Conventions,” adding that the treaties allow for measures
such as “education, rehabilitation and social reintegration … [to] be
substituted for conviction and penal sanction” in drug cases. Authors noted
that many European nations have replaced criminal penalties for minor drug
crimes with “administrative sanctions” without running afoul with U.N. treaties
by either calling on “constitutional principles, principles of proportionality
or public interest criteria with regard to use or possession offenses which are
considered minor in nature, [or by invoking their] right … to apply
alternatives to punishment for offenses which have been established as
punishable.”
a. Article 36 Does Not Apply
to Personal Consumption Offenses
Article
36 of the Single Convention requires member countries to treat as punishable
offenses the “cultivation, production, manufacture, extraction, preparation,
possession, offering, offering for sale, distribution, purchase, sale, delivery
on any terms whatever...transport, importation and exportation of drugs
contrary to the provisions of this Convention.” However, most observers have
concluded that the possession included in Article 36 is limited only to
possession in furtherance of commercial trafficking. If, on the other hand, the
conduct -- whether possession, cultivation or distribution -- is related solely
to personal consumption, the Single Convention does not require they be
classified as punishable offenses.
This
was the conclusion of the U.S. National Commission on Marijuana and Drug Abuse
(aka the Shafer Commission) in their First Report to Congress in 1972[9].
The Shafer Commissioner recommended the elimination of criminal penalties for
the possession and use of small amount of marijuana, and for the not for profit
sharing of marijuana among friends, and they concluded these recommendations
would not violate international treaty obligations.
A
1979 Canadian government report also reached this conclusion[10]. Its authors found that international
treaties granted governments “considerable constructive latitude” in dealing
with cannabis offenses. They concluded, “Even if Canada should elect to
continue criminalizing consumption-oriented conduct, it is not required to
convict or punish persons who have committed these offenses.”
That
was also the conclusion reached by the CCSA National Working Group on
Addictions Policy in Canada in a 1998 discussion paper[11]. “...the statute, procedure or punishment
does not necessarily have to be criminal in nature, and there is no per se
exclusion of the wide realm of sanctions (including intermediate or conditional
sanctions, such as fines, discharges, probation, or conditional and diversion
sentences) available in contemporary legal practice. Moreover, education,
treatment or social reintegration measures can clearly be substituted for any
legal sanctions.”
This
is also the interpretation of Adolf Lande, who served for many years as secretary of the Permanent Central Narcotics
Board and the Drug Supervisory Body (both international drug organizations) and
who was the primary drafter of the Single Convention[12].
According to Lande, “The term ‘possession’ and ‘purchase’ used in the penal
provisions of the Single Convention art. 35, s-para.1(a) mean only possession
and purchase for the purpose of illicit trafficking. Consequently unauthorized
possession and acquisition (purchase) of narcotic drugs including cannabis
products for personal consumption need not be treated under the Single
Convention as punishable offenses or as serious offenses.
This
interpretation also seems to be supported by the official Commentary on the
Single Convention on Narcotic Drugs 1961, as prepared by the office of the UN
Secretary-General[13].
It notes that whether the possession of drugs (including prohibited forms of
cannabis) for personal use requires the imposition of criminal penalties “is a
question which may be answered differently in different countries”.
Therefore,
there would appear to be a consensus that the language in Article 36 does not
preclude a member country from decriminalizing marijuana smoking, or the
cultivation of marijuana for personal use. However, to be fair, it should be
noted that the Le Dain Commission in 1973 had reached an opposite conclusion[14].
A
1997 discussion paper by the New Zealand Drug Policy Forum Trust went even
further[15].
Its authors declared that a policy of “partial prohibition” – defined as
“permit[ing] adults to possess up to a defined amount of cannabis and cultivate
up to a certain number of plants” – is also likely in compliance with international
conventions. While the researchers did
acknowledge that the 1961 treaty probably prohibits government regulation of
marijuana commerce, they added that any nation wishing to enact such a system
may “simultaneously ‘denounce’ the Single Convention, as permitted under
Article 46, while re-ratifying with reservations concerning cannabis in
accordance with Article 49,” which allows signatories the “right to permit
temporarily in any one of its territories … the use of cannabis, cannabis
resin, extracts and tinctures of cannabis for non-medical purposes”.under
limited circumstances.
In
sum, although international treaty obligations are often regarded as an
impediment
to marijuana-law reform, the truth is that individual nations possesses
wide-ranging flexibility regarding their pot policies despite existing
international commitments. In reality,
international treaties are little more than a paper tiger, and it remains the
prohibitionists themselves that still pose the greatest barrier to pot reform.
b.
Legalization Would Not Be Permitted Under Current Language
However,
that would appear to be as far as one could stretch the current treaty language[16].
The language of Article 36 which requires criminal penalties for the commercial
distribution of marijuana would appear to preclude a member country from
establishing a legalization system to regulate and tax the sale of marijuana.
In
theory, as suggested by the New Zealand report and by the Le Dain Commission, a
member country could propose an amendment to the Single Convention to exempt
cannabis products from the coverage of the treaty. But that would probably be a
hard sell, and would likely be a long, extended process that would ultimately
be unsuccessful[17].
Similarly,
the clear language of 1988 UN Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances (Vienna Convention) says in Art. 3(2):
“Subject to constitutional principles and the basic concepts of its legal
system, each party shall adopt such measures as may be necessary to establish
as a criminal offense under it domestic law, when committed intentionally, the
possession, purchase or cultivation of narcotic drugs or psychotropic
substances for personal consumption contrary to the provisions of the 1961
Convention...”
Despite
subsequent language that makes it clear a country need not impose a conviction
or criminal punishment for an offense under this section, there does appear to
be a requirement that a punishable offense be maintained on the books.
c. The Renunciation Option
Any
country that wishes to legalize marijuana, and that believes provisions of
international drug control treaties may not permit that, can easily renounce
the treaties and no longer be bound by those provisions[18].
Each
of these treaties permits a signatory party to unbridle themselves of the
provisions of the treaty simply by announcing their intention to do so in
writing, and waiting for a few months. For the Single Convention, a party may
withdraw, a procedure called “denunciation,” by depositing a written instrument
with the Secretary General. If this denunciation is received by July 1 of any
year, it becomes effective on January 1 of the following year. If received
after July 1, the denunciation does not take effect until January 1 of the
second succeeding year.
If
the countries that wish to legalize marijuana did the right thing, they would
renounce these ill-conceived treaties -- treaties that include marijuana and
THC in all of its forms on schedule I with the most dangerous drugs, the result
of famed US drug warrior Harry Anslinger’s successful attempt to
internationalize US drug policies by replicating the schedules included in the
US federal Controlled Substances Act of 1970. These treaties were drafted to
make it difficult for member countries to experiment with optional drug
policies in the future; to lock in the harsh criminal justice response to drug
use. It would be best to walk away from these treaties altogether, at least as
they pertain to domestic marijuana policies.
Realisticly,
I doubt that will be the avenue these governments take. Most countries will not
want to renounce the treaties entirely, because of their reticence to create
waves in the international community. Rather, I expect they will work to (1) find a creative way to fit
marijuana legalization into the current treaty language; or (2) to amend
current treaty language sufficiently to permit marijuana legalization.
d. A Domestic Constitutional
Ruling Would Trump Treaties
As
noted by the Jamaican Commission on Ganja[19],
were a domestic court to decide that the requirements of any of the three
international drug treaties violates basic constitutional law or principles,
then the treaty obligations would be void. This is because each of the treaties
are prefaced by constitutional limitations.
For
example, Paragraph 1 (a) of Article 36 of the 1961 Single Convention on
Narcotic Drugs, is qualified by the clause: "Subject to its constitutional
limitations, each Party shall adopt such measures as will ensure” etc.
Paragraph
2 of Article 3 of the 1988 Convention Against Illicit Traffic is
similarly
prefaced: "Subject to its constitutional principles and the basic
concepts
of its legal system, each Party shall adopt such measures” etc. In other words
the Conventions pay due regard to the peculiarities of each country, such as
would be reflected in its supreme law, the Constitution.
The
Constitutional guarantees of individual rights and personal freedoms could be
invoked to allow the personal use of marijuana, as an expression of religious
freedom or of the right to privacy, without breaching international
obligations.
e. Conclusion
The
three international anti-drug treaties are far more permissive of alternatives
to the total prohibition of marijuana than some of the language in the treaties
might suggest. In fact, there exists a consensus that a member country could
decriminalize marijuana for personal use without violating provisions of these
treaties.
However,
the provisions of all three treaties would appear to preclude a member country
from establishing a legalized and regulated system for the control,
distribution and sale of marijuana. Therefore, any country wishing to legalize
marijuana would need to either amend these treaties, or disengage from them.
The
option of amending the treaties to delete cannabis from the treaties all
together was the recommendation of the Le Dain Commission in Canada in 1973.
This involves a somewhat complex procedure that may be instigated by any party,
but seems unlikely to be approved under the current political climate in many
signatory countries.
The
procedure for withdrawing is simple and can be accomplished within a matter of
months, and would appear to present the best option for a country wishing to
establish a system for legalizing and controlling marijuana.
In
addition, each of these treaties recognizes the preeminence of domestic
constitutional law for the member countries, and the requirements contained in
the treaties would be invalid if found to be violative of constitutional
principles by the member country. This may provide a safety valve for some
countries.
[1] In
addition to Oregon, the following states decriminalized minor marijuana
offenses legislatively during the 1970s: Alaska; California; Colorado; Maine;
Minnesota; Mississippi; Nebraska; New York; North Carolina; and Ohio. Nevada
adopted a decriminalization statute legislatively in 2001.
[2] Irwin
RAVIN, Petitioner, v. STATE of Alaska, Respondent. No. 2135. Supreme Court of
Alaska. May 27, 1975. As Amended May 28, 1975.
[3] Johnston et al. 1981. Marijuana
Decriminalization: The Impact on Youth 1975-1980 (Monitoring the Future
Occasional Paper 13). Institute for Social Research, University of Michigan:
Ann Arbor; Single, Christie, Ali, 2000. The Impact of Cannabis Decriminalization
in Australia and the United States (Journal of Public Health Policy
21:157-186); Thies and Register. 1993. Decriminalization of marijuana and
demand for alcohol, marijuana and cocaine (The Social Sciences Journal
30:385-399).
[4] D. Gieringer. 1994. Economics of Cannabis Legalization. California NORML: Oakland, CA.
[5] 1961
Single Convention on on Narcotic Drugs http://www.druglibrary.org/schaffer/legal/singconv.htm
[6] 1971
Convention on Psychotropic Substances
http://www.druglibrary.org/schaffer/legal/psychotropic.html
[7] 1988
Convention Against Illicit Trafficking in Narcotic Drugs and
Psychotropic Substances
http://www.ukcia.org/pollaw/lawlibrary/conventionagainstillicittraffic1988.html
[8] DrugScope.
2001. European Drug Laws: the Room for Manoeuvre. London.
[9] First Report of the National Commission on
Marihuana and Drug Abuse. 1972. Marihuana: A Signal of Misunderstanding.
Washington, DC: US Government Printing Office.
[10] Department
of National Health and Welfare, Health Protection Branch. 1979. Cannabis Control
Policy: A Discussion Paper. Ottawa.
[11] ”Cannabis
Control in Canada: Options Regarding Possession,” Canadian Center on Substance
Abuse discussion paper, prepared by the CCSA National Working Group on
Addictions Policy, 1998, Ottawa.
[12] Lande,
1973:128, as cited by Department of National Health and Welfare, Health
Protection Branch. 1979. Cannabis Control Policy: A Discussion Paper. Ottawa.
[13] Commentary (1973:112), as
cited by Department of National Health and Welfare, Health Protection Branch.
1979. Cannabis Control Policy: A Discussion Paper. Ottawa.
[14] “...the prevailing view ...
Is that the word ‘possession’ in Article 36 includes the simple possession for
use.” Final Report of the Commission of Inquiry into the Non-Medical Use of
Drugs, (1972:210) as cited by Department of National Health and Welfare, Health
Protection Branch. 1979. Cannabis Control Policy: A Discussion Paper. Ottawa.
[15]
Alternate Systems of Cannabis Control in New Zealand:
A Discussion Paper. Drug Policy Forum Trust, Wellington. July 1997.
[16] At least
one authority has concluded that a reasonable interpretation of Article 22 of
the Single Convention “is that if a country decides that a system other than
prohibition is most appropriate for protecting public health and welfare and
for deterring illicit trafficking, that country is not obligated by virtue of
the Single Convention to maintain a prohibition policy.” Alternative Systems of
Cannabis Control in New Zealand: A Discussion Paper, July 1997 (Drug Policy
Forum Trust, Wellington).
[17] ”Amendments
may be proposed by any party. The Economic and Social Council then decides
whether the proposed amendment is to be considered at a special conference or
circulated to the parties for their acceptance and comments. If the latter
route is chosen, the amendment then comes into force eighteen months after its
circulation, so long as no party has rejected it. If it is rejected by any
party, the Council, in light of comments received from the parties, may still
decide to call a conference to consider the proposed amendment.” Department of
National Health and Welfare, Health Protection Branch. 1979. Cannabis Control
Policy: A Discussion Paper. Ottawa.
[18] ”Any party may withdraw from the Single Convention (a procedure
described as ‘denunciation’) by depositing a written instrument with the
Secretary-General. If this denunciation is received by July 1st of any year, it
becomes effective on January 1st of the succeeding year. If received after July
1st, the denunciation does not take effect until January 1st of the second
succeeding year. (See Article 46)” Department of National Health and Welfare,
Health Protection Branch. 1979. Cannabis Control Policy: A Discussion Paper.
Ottawa.
[19] Jamaican
National Commission on on Ganja. 2001. A Report of the National
Commission on on Ganja. Kingston