BEYOND PROHIBITION CONFERENCE: LEGAL CANNABIS IN CANADA
May 8, 2004
Wosk Centre For Dialogue
R. Keith Stroup, Esq.
National Organization for the Reform of Marijuana Laws (NORML)
presented to the seminar entitled
“Beyond Prohibition: Legal Cannabis in Canada”
Saturday, May 8, 2004
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.
II. Responsible Marijuana Smoking Should Be Legal
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, 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 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. 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.
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, which includes cannabis and all of its extracts on Schedule I, the schedule for the most dangerous drugs; the 1971 Convention on Psychotropic Substances, which includes THC and its isomers on Schedule I ; and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988.
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
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. 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. 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. “…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. 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. 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.
A 1997 discussion paper by the New Zealand Drug Policy Forum Trust went even further. 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. 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.
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.
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, 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.
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.
 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.
 Irwin RAVIN, Petitioner, v. STATE of Alaska, Respondent. No. 2135. Supreme Court of Alaska. May 27, 1975. As Amended May 28, 1975.
 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).
 D. Gieringer. 1994. Economics of Cannabis Legalization. California NORML: Oakland, CA.
 1961 Single Convention on on Narcotic Drugs http://www.druglibrary.org/schaffer/legal/singconv.htm
 1971 Convention on Psychotropic Substances
 1988 Convention Against Illicit Trafficking in Narcotic Drugs and
 DrugScope. 2001. European Drug Laws: the Room for Manoeuvre. London.
 First Report of the National Commission on Marihuana and Drug Abuse. 1972. Marihuana: A Signal of Misunderstanding. Washington, DC: US Government Printing Office.
 Department of National Health and Welfare, Health Protection Branch. 1979. Cannabis Control Policy: A Discussion Paper. Ottawa.
 ”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.
 Lande, 1973:128, as cited by Department of National Health and Welfare, Health Protection Branch. 1979. Cannabis Control Policy: A Discussion Paper. Ottawa.
 Commentary (1973:112), as cited by Department of National Health and Welfare, Health Protection Branch. 1979. Cannabis Control Policy: A Discussion Paper. Ottawa.
 “…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.
 Alternate Systems of Cannabis Control in New Zealand: A Discussion Paper. Drug Policy Forum Trust, Wellington. July 1997.
 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).
 ”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.
 ”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.
 Jamaican National Commission on on Ganja. 2001. A Report of the National
Commission on on Ganja. Kingston
Jeffrey A. Miron
“Economic Aspects of a Post-Prohibition Regime for Marijuana“
Department of Economics
Boston, MA 02215
For many years opponents of marijuana prohibition have fought a seemingly hopeless battle against the accepted wisdom that government should outlaw the production, distribution and use of marijuana. In recent years, however, the climate has changed substantially in numerous countries (with the glaring exception of the United States), and the opportunity for eliminating or at least scaling back marijuana prohibition seems within grasp.
With this progress, however, comes a set of questions that has not been fully addressed. First, what exactly is the best alternative to current prohibition. Second, what are the economic implications of this alternative policy regime?
Regarding the first question, the presumption of many prohibition critics is that a post-prohibition regime should have substantial amounts of government involvement in the market for marijuana. For example, many reformers push for medicalization of marijuana, or decriminalization, or government provision, rather than outright legalization. Even amongst those who advocate legalization, the assumption is usually that legalized marijuana would be subject to substantial regulation in the form of sin taxation, age restrictions, advertising prohibitions, or bans on drug-testing.
This paper argues that full legalization, in which policy treats marijuana like any other good, makes better economic sense than the “half-way houses” frequently endorsed by opponents of marijuana prohibition. This does not mean partial measures have no value; they are better than the current policy of prohibition. But full legalization is better yet.
Regarding the economic impacts of marijuana legalization, the conventional wisdom amongst prohibition critics is that legalization will produce large-scale economic benefits in the form of reduced government expenditure for prohibition enforcement and increased tax revenue from legalized production and sale.
This paper suggests, however, that the impact of marijuana legalization on government budgets is probably modest. Hard data on the size of current marijuana markets are difficult to obtain, and the change that would occur under legalization is uncertain. Available evidence indicates, however, that these impacts, while not trivial, are an order of magnitude lower than claimed in many recent accounts. In and of themselves, the budgetary impacts are minor issues in the debate over marijuana legalization.
II. What is the Ideal Policy Toward Marijuana?
There is widespread agreement in the marijuana reform movement that current policy is, at a minimum, excessive. In particular, virtually everyone in this movement opposes arresting and incarcerating people whose only “crime” is marijuana use. Beyond this proposition, however, there is substantial diversity in the views over the best alternative to current prohibition. I present here the argument for minimal government intervention other than that directed at all legal goods.
Legalization or Decriminalization
A first issue that arises in discussing alternatives to marijuana prohibition is whether policy should legalize or merely decriminalize marijuana. Under full legalization, the production, distribution, sale and possession of marijuana are all legal; the law treats marijuana like any other commodity. Under decriminalization, marijuana possession is not subject to criminal sanctions, but penalties against production, distribution and sale remain. Thus, marijuana is not a legal commodity.
Decriminalization is difficult to defend from the perspective of economics. To begin, every transaction must have both a seller and a buyer, so it makes little sense to criminalize one side of the market but not the other. Even more importantly, decriminalization does little to reduce prohibition-generated ills other than those directly related to the adverse legal treatment of marijuana users. Decriminalization maintains the illegal status of production, distribution and sale of marijuana, so the industry still operates underground. This means the negatives side effects of prohibition (crime, corruption, infringements on civil liberties, poor quality control, wealth transfers to criminals, disruption of other countries) all continue under decriminalization. It also means the state cannot tax the production and sale, nor can it regulate the marijuana industry The only benefit of decriminalization relative to prohibition is that marijuana users face limited legal penalties from drug use.
A possible response to this perspective is that several countries have diminished the harm from marijuana prohibition by decriminalizing without legalizing. This conclusion is unwarranted, however, because it confounds the effect of prohibition per se with the degree to which prohibition is enforced. Countries that have decriminalized are, by and large, countries with minimal enforcement of marijuana laws generally, including those directed at production and sale. This low level of enforcement mitigates the effects of prohibition on crime, corruption, and other prohibition-generated ills, even though marijuana is still prohibited.
The economically sensible policy, therefore, is legalization rather than decriminalization. Decriminalization is better than prohibition, but full legalization is better still.
A different alternative to marijuana prohibition, often termed medicalization, is to put control over marijuana in the hands of physicians, with only modest oversight from law enforcement. Specifically, physicians would be legally permitted to prescribe marijuana for a range of conditions or treatments, and pharmacies would be legally allowed to sell marijuana to persons holding a valid prescription. These pharmacies would obtain the marijuana, again legally, from licensed private or government suppliers, as occurs now with other prescription medications.
The critical effect of medicalization is to provide many marijuana users with a legal supply, thereby reducing the black market. Since the range of conditions for which marijuana appears efficacious is broad, physicians would have enormous scope to prescribe marijuana. Thus, the magnitude of the black market might shrink substantially if prescription marijuana were legal. Thus, from the perspective of eliminating the negative effects of a prohibition-induced black market, medicalization is beneficial.
There are, however, important limitations of the medical marijuana approach relative to legalization. First, it does not necessarily eliminate the black market for marijuana; that depends on how strict or lax the rules on prescribing are. Second, the quality of marijuana provided to pharmacies might be low, which again means continuation of the black market. Third, medicalization encourages users to request, and physicians to supply, marijuana for the treatment of questionable medical conditions; this charade breeds disrespect for the law. Fourth, medicalization accepts the notion that using marijuana is “bad” and only allowable to medical reasons; there is no justification for this perspective, and if allowed it persist, the perspective spills over to other arenas.
As with decriminalization, therefore, medicalization is better than current policy but less desirable than legalization.
The Regulation and Taxation of Legal Marijuana
Given a legal regime for marijuana, a number of additional issues arise.
The first question is whether to impose to tax marijuana more heavily than other goods. Most societies currently impose “sin” taxes on alcohol, tobacco, gasoline, and a few other goods.
There are two standard rationales for sin taxes. There are two main rationales. One is that drug use imposes negative effects on innocent third parties (e.g., by causing traffic accidents). The other is that many users make irrational decisions to consume drugs.
Neither of these rationales applies in a convincing way to marijuana. Marijuana use potentially imposes externalities in certain situations, such as driving under the influence, but existing evidence does not support a strong effect in this direction, and in any case such evidence suggests laws against DUI, not a sin tax. The consumption of marijuana does not have substantial potential for addiction or negative health consequences, so myopia justification is not valid either.
In addition, the sin tax approach is problematic. First, it perpetuates the notion that marijuana use is a sin. Second, sin taxes often reflect political influences rather than valid economics. Third, it is difficult to determine which goods generate the biggest externalities. And sin taxation can increase to the point where it drives the drug market underground, which generates the same negatives as prohibition.
A second policy issue that arises in a legalized regime for marijuana is whether to prohibit advertising. Many critics of prohibition assume a post-prohibition regime should prohibit advertising of legalized marijuana. This outcome is perhaps likely from a political perspective, but it makes little sense from an economic perspective.
To begin, there is little evidence that advertising substantially increases demand for a mature product. Instead, advertising appears to mainly shift demand for a given product between different brands. If marijuana were legalized, it would be a newly legal product, but it would still be mature from the perspective of most consumers. The natural assumption therefore is that a marijuana market would resemble the markets for cigarettes, alcohol, soft drinks, and many other consumers goods for which differences in quality are often not dramatic but advertising promotes brand differentiation.
Assuming this is an accurate description, the fear that advertising would entice additional persons to consume marijuana is unfounded. Thus, the principle negative that some attach to advertising of legalized marijuana would not arise.
In addition, advertising potentially has an important benefit. Advertising gives the manufacturer of a high quality or improved products the ability to attract and retain customers. This spurs innovation and means cheaper, safer products for consumers.
Still a third policy issue that arises under marijuana legalization is whether to impose age restrictions on the purchase of marijuana, as currently occurs now for alcohol and tobacco. The standard rationale for age restrictions is that minors are not ready to make informed decisions about whether or under what circumstances to use certain commodities.
Whatever the validity of this assumption, however, age restrictions are imperfect at preventing underage consumption of restricted commodities. Minors often evade these restrictions, which breeds contempt for the law. Further, minimum purchase ages can encourage parents to supervise their children less diligently, under the mistaken assumption that the law has addressed the problem. Thus, it is not obvious that age restrictions do more harm than good.
One issue that exists already but that would acquire renewed discussed under legalization is how policy should regard marijuana testing. Many opponents of marijuana prohibition also oppose marijuana testing by employers or others and endorse government policies to prohibit or limit marijuana testing.
Economic analysis gives little justification for governments to restrict private drug testing, however. In the absence of government pressure to engage in drug testing, private employers will test their employees only if the benefits in terms of increased productivity exceed the costs. This is exactly what should occur to achieve economic efficiency.
At the same time, there is no economic reason for the government to require drug testing by private companies. It might make sense for the federal government to test some of its own employees (e.g., military pilots), but there is no reason to compel such testing by private employers. Thus, the incidence of testing would likely decline in any case.
A second issue that arises under prohibition or legalization, but that deserves renewed discussion in the context of legalization, is whether governments should subsidize marijuana “abuse” treatment. Many critics of prohibition believe the funds currently expended on marijuana prohibition should be transferred to subsidizing treatment.
The case for government-subsidized marijuana treatment is weak, however. First, no evidence that treatment generates benefits in excess of costs. Second, having the government subsidize treatment accepts the view that marijuana use is somehow “wrong” and the marijuana use is something that needs to be eliminated. Third, demand for treatment would fall under legalization, both because there would be less government coercion and because there would be less social pressure to abstain from drug use, so the issue would be less important in any event.
III. Economic Implications of Marijuana Legalization
The legalization of marijuana, were it to occur, would have a number of economic and social effects. Prominent amongst these are any impacts on government budgets. Legalization means government would no longer expend resources enforcing prohibition and that governments could collect tax revenue on legalized marijuana. These section provides some educated guesses about the magnitude of these impacts in Canada.
The Size of the Canadian Marijuana Market
Estimation of the budgetary impacts of marijuana legalization requires information on the size of the market that would exist under legalization. A first step in determining this magnitude is estimation of the size of the current market. Existing accounts suggest this market is substantial in size; for example, many observers believe that marijuana production in British Columbia is roughly $10 billion per year relative to overall GDP of roughly $114 billion. This estimate seems excessive by a substantial magnitude, however, for several reasons.
The first reason to doubt the magnitude of existing “estimates” is that they are simply too large on their face to be plausible. In developed economies, total expenditure on food as a fraction of GDP is roughly 9%. The data in the previous paragraph suggest that marijuana production in British Columbia is also about 9% of GDP. This makes no sense.
A second reason to doubt the magnitude of current estimates is that available data put the size the of U.S. marijuana industry at roughly $10 billion. Since the U.S. economy is about 10 ten times the size of the Canadian economy, whether measured in GDP or in population, either the U.S. figure is substantially too low or the Canadian figure is substantially too large (or some combination of both). Since the methodology used in the U.S. estimates appears reasonable, the sensible conclusion is that the Canadian estimates are too high by a factor of 10.
This paper therefore assumes that the size of the Canadian marijuana market is currently about $1 billion per year.
Expenditure on Marijuana under Legalization
The second step in estimating the tax revenue that would occur under legalization is to determine how expenditure on marijuana would change as the result of legalization. A simple framework in which to consider various assumptions is the standard supply and demand model. To use this model to assess legalization’s impact on marijuana expenditure, it is necessary to state what effect legalization would have on the demand and supply curves for marijuana.
This paper assumes there would be no change in the demand for marijuana. This assumption likely errs in the direction of understating the tax revenue from legalized marijuana, since the penalties for possession potentially deter some persons from consuming. But any increase in demand from legalization would plausibly come from casual users, whose marijuana use would likely be modest. Any increase in use might also come from decreased consumption of alcohol, tobacco or other goods, so increased tax revenue from legal marijuana would be partially offset by decreased tax revenue from other goods. And there might be a forbidden fruit effect from prohibition that tends to offset the demand decreasing effects of penalties for possession. Thus, the assumption of no change in demand is plausible, and it likely biases the estimated tax revenue downward.
Under the assumption that demand does not shift due to legalization, any change in the quantity and price would result from changes in supply conditions. There are two main effects that would operate (Miron 2003a). On the one hand, marijuana suppliers in a legal market would not incur the costs imposed by prohibition, such as the threat of arrest, incarceration, fines, asset seizure, and the like. This means, other things equal, that costs and therefore prices would be lower under legalization. On the other hand, marijuana suppliers in a legal market would bear the costs of tax and regulatory policies that apply to legal goods but that black market suppliers normally avoid. This implies an offset to the cost reductions resulting from legalization. Further, changes in competition and advertising under legalization can potentially yield higher prices than under prohibition.
It is thus an empirical question as to how prices under legalization would compare to prices under current prohibition. The best evidence available on this question comes from comparisons of marijuana prices between the U.S. and the Netherlands. Although marijuana is still technically illegal in the Netherlands, the degree of enforcement is substantially below that in the U.S., and the sale of marijuana in coffee shops is officially tolerated. The regime thus approximates de facto legalization. Existing data suggest that retail prices in the Netherlands are roughly 50-100 percent of U.S. prices.  Canadian prices are plausibly already lower than those in the U.S. because the degree of prohibition enforcement is also lower.
The effect of any price decline that occurs due to legalization depends on the elasticity of demand for marijuana. Evidence on this elasticity is limited because appropriate data on marijuana price and consumption are not readily available. Existing estimates, however, suggest an elasticity of at least -0.5 and plausibly more than -1.0 (Nisbet and Vakil 1972). 
If the price decline under legalization is minimal, then expenditure will not change regardless of the demand elasticity. If the price decline is noticeable but the demand elasticity is greater than or equal to 1.0 in absolute value, then expenditure will remain constant or increase. If the price decline is noticeable and the demand elasticity is less than one, then expenditure will decline. Since the decline in price is unlikely to exceed 50% and the demand elasticity is likely at least -0.5, the plausible decline in expenditure is at most 25%. Given the estimate of $1 billion in expenditure on marijuana under current prohibition, this implies expenditure under legalization of at least $0.75 billion.
Tax Revenue from Legalized Marijuana
To estimate the tax revenue that would result from marijuana legalization, it is necessary to assume a particular tax rate. This report considers two assumptions that plausibly bracket the range of reasonable possibilities.
The first assumption is that tax policy treats legalized marijuana market identically to other goods. In that case tax revenue as a fraction of expenditure would be approximately 35%, implying tax revenue from legalized marijuana of $263 million. The amount of revenue would be lower if substantial home production occurred under legalization. The evidence suggests, however, that the magnitude of such production would be minimal. In particular, alcohol production switched mostly from the black market to the licit market after repeal of prohibition in 1933.
The second assumption is that tax policy treats legalized marijuana similarly to alcohol or marijuana, imposing a “sin tax” in excess of any tax applicable to other goods. Imposing a high sin tax can force a market underground, thereby reducing rather than increasing tax revenue. Existing evidence, however, suggests that relatively high rates of sin taxation are possible without generation of a black market. For example, cigarette taxes in many European countries account for 75–85 percent of the price (US Department of Health and Human Services 2000).
One benchmark, therefore, is to assume that an excise tax on legalized marijuana doubles the price. If general taxation accounts for 30% of the price, this additional tax would then make tax revenue account for 80% of the price. This doubling of the price, given an elasticity of -0.5, would produce a 50% decline in quantity consumed, but since the price has doubled, it would cause a 50% increase in revenue, implying total expenditure on marijuana would be $1.125 billion (=$750 x 1.5). Tax revenue would equal 80% of this total, or $900 billion. This includes any standard taxation applied to marijuana income as well as the excise tax on marijuana sales.
The $900 million figure is not necessarily attainable given the characteristics of marijuana production. Small scale, efficient production is possible and occurs widely now, so the imposition of a substantial tax wedge would probably drive a significant component of the market underground. The assumption of a constant demand elasticity in response to a price change of this magnitude is also debatable; more plausibly, the elasticity would increase as the price rose, implying a larger decline in consumption and thus less revenue from excise taxation. The $900 million figure should therefore be considered an upper bound.
These calculations nevertheless indicate the potential for substantial revenue from marijuana taxation. A more modest excise tax, for example, might produce revenue on legalized marijuana of, say, $400-$500 million per year.
Savings in Government Expenditure from Marijuana Legalization
If marijuana were legal, federal, provincial and local government would save the resources currently being used to arrest, prosecute, and incarcerate marijuana offenders. The magnitude of this saving is probably modest, however.
Existing estimates for the U.S. (Miron 2004) indicate that that marijuana legalization would save $7.7 billion per year in government expenditure on enforcement of prohibition ($5.3 billion of this saving would accrue to state and local governments, while $2.4 billion would accrue to the federal government). Assuming a ratio of 10 to 1 to adjust of the difference between the U.S. and Canada implies a savings for Canada for $0.77 billion.
This estimate is probably too large, however. Office of the Auditor General of Canada (2001) states that federal expenditure for control of illicit drugs is $500 million per year, of which roughly 95% is for enforcement. In the U.S., Miron (2003) estimates that federal expenditure for enforcement was $13.6 billion in 2002. The ratio is more than 25 to 1, rather than just 10 to 1. Using the higher ratio implies that savings in Canadian enforcement costs would be roughly $308 million.
Caputo, Michael R. and Brian J. Ostrom (1994), “Potential Tax Revenue from a Regulated Marijuana Market: A Meaningful Revenue Source,” American Journal of Economics and Sociology, 53, 475-490.
Clements, Kenneth W. and Mert Daryal (1999), “The Economics of Marijuana Consumption,” manuscript, Economic Research Centre,” Department of Economics, The University of Western Australia.
Clements, Kenneth W. and Mert Daryal (2001), “Marijuana Prices in Australia in 1990s,” manuscript, Economic Research Centre,” Department of Economics, The University of Western Australia.
Durose, Matthew and Patrick A. Langan (2003), Felony Sentences in State Courts, 2000, Bureau of Justice Statistics, Office of Justices Programs, U.S. Department of Justice, NCJ 198821.
European Monitoring Centre for Drugs and Drug Addiction (2002), Annual Report 2002, available at (http://annualreport.emcdda.eu.int/pdfs/2002_0458_EN.pdf).
Harrison, Lana D., Michael Backenheimer, and James A. Inciardi (1995), “Cannabis use in the United States: Implications for Policy,” in Peter Cohen and Arjan Sas, eds., Cannabisbeleid in Duitsland, Frankrijk en do Verenigde Staten, Amerstdamn: Centrum voor Drugsonderzoek, Universiteit van Amsterdamn, 231-236.
MacCoun, Robert and Peter Reuter (1997), “Interpreting Dutch Cannabis Policy: Reasoning by Analogy in the Legalization Debate,” Science, 278, 47-52.
Massachusetts Department of Corrections (2001), New Court Commitments to Massachusetts County Correctional Facilities During 2000, Concord, MA: Research and Planning Division, Massachusetts Department of Corrections.
Massachusetts Department of Corrections (2002), January 1, 2001 Inmate Statistics, Concord, MA: Research and Planning Division, Massachusetts Department of Corrections.
Miron, Jeffrey A. (2002a), “The Effect of Marijuana Decriminalization on the Budgets of Massachusetts Governments, With a Discussion of Decriminalization’s Effect on Marijuana Use,” Report to the Drug Policy Forum of Massachusetts, October.
Miron, Jeffrey A. (2003a), “Do Prohibitions Raise Prices? Evidence from the Markets for Cocaine and Heroin,” Review of Economics and Statistics, 85(3), 522-530.
Miron, Jeffrey A. (2003b), “A Critique of Estimates of the Economic Costs of Drug Abuse,” Report to the Drug Policy Alliance, July.
Miron, Jeffrey A. (2003c), “The Budgetary Implications of Marijuana Legalization in Massachusetts,” Report to Change the Climate, August.
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Wright, D. (2002), State Estimates of Substance Use from the 2000 National Household Survey on Drug Abuse: Volume I, Findings (DHHS Publication No. SMA 02-3731, NHSDA Series H-15), Rockville, MD: Substance Abuse and Mental Health Services Administration, Office of Applied Statistics.
US Department of Health and Humans Services. 2000. Reducing Tobacco Use: A Report of the Surgeon General, Tobacco Taxation Fact Sheet. Accessed at
 A third possible rationale might be that marijuana demand is price inelastic, so that taxation has a small distortionary impact. Current evidence does not indicate that marijuana demand is price inelastic, however.
 And since advertising potentially raises costs, allowing advertising can lead to a higher equilibrium price which is a positive to those persons who think marijuana use should be discouraged even though legalized.
 ONDCP (2001a, Table 1, p.3) estimates that in 2000 U.S. residents spent $10.5 billion on marijuana.
 To be explicit, the assumption is that there is no shift in the demand curve. If the supply curve shifts, there will be a change in the quantity demanded in the new equilibrium.
 The underlying assumption is that the marginal costs of evading tax and regulatory costs is zero for black market suppliers who are already conducting their activities in secret.
 MacCoun and Reuter (1997) report gram prices of $2.50-$12.50 in the Netherlands and $1.50 – $15.00 in the U.S. They speculate that the surprisingly high prices in the Netherlands might reflect enforcement aimed at large-scale trafficking. Harrison, Backenheimer, and Inciardi (1995) note that ONDCP data on drug prices in the U.S. are very similar to prices charged in Dutch coffeeshops. ONDCP (2001b) reports a price per gram for small-scale purchases of roughly $9 per gram in the second quarter of 2000, while EMCDDA (2002) suggests a price of 2-8 Euros per gram, which is roughly $6 on average. Various web sites that discuss the coffee shops in Amsterdam suggest prices of $5 – $11 per gram in recent years. These comparisons do not adjust for potency or other dimensions of quality.
 Clements and Daryal (2001) report marijuana prices for Australia that are similar to or higher than those in the United States. Since Australian marijuana policy is noticeably less strict than U.S. policy, this observation is consistent with the view that legalization would not produce a dramatic fall in price.
 The Nisbet and Vakil estimates that use survey data imply price elasticities of -0.365 or -0.51 in the log and linear specifications, respectively, while the purchase data implies price elasticities of -1.013 and -1.51. The estimates based on purchase data are plausibly more reliable. Moreover, as they note, these estimates are likely biased downward by standard simultaneous equations bias. Clemens and Daryal (1999) estimate a price elasticity of -0.5 for marijuana using Australian data. Estimates of the demand for “similar” goods (such as alcohol, cocaine, heroin, or tobacco) suggest similar elasticities.
 Pacula, Grossman, Chaloupka, O’Malley, Johnston and Farrelly (2000) summarize the literature on the relation between marijuana use and factors that can affect use, such as legal penalties. They conclude the evidence is mixed but overall indicates a moderate response of marijuana consumption to “price.” The papers summarized do not provide measures of the price elasticity. The results reported by Pacula et al. suggest an elasticity of marijuana participation between 0.0 and -0.5; this understates the total elasticity, which includes any change in consumption conditional on participation. The literature since Nisbet and Vakil is thus consistent with the elasticity estimate assumed above.
 This calculation assumes the demand elasticity is constant over the relevant range, which does not hold for all demand curves. So long as the price change is not dramatic, however, it provides a reasonable approximation.
 In 2001, total government receipts divided by GDP equaled 29.7%. See the 2003 Economic Report of the President on-line, http://w3.access.gpo.gov/usbudget/fy2004/pdf/2003_erp.pdf, Tables B-1 and B-92, pp. 276 and 373. Canadian taxes are higher as a percentage of GDP.
 Whether such production is illicit depends on the details of a legalization law. Plausibly, growing small amounts for personal use would not be subject to taxation or regulation, just as growing small amounts of vegetables or herbs is not subject to taxation or regulation.
If Cops Were Smoking Legal Marijuana
To begin with, it is important to explain the background of LEAP and of the members whom comprise its speaker’s bureau, for LEAP’s cachet is in who is now speaking out against drug prohibition.
Law Enforcement Against Prohibition (LEAP) is a drug-policy reform group created by current and former members of law enforcement who believe that to save lives and lower the rates of disease, crime and addiction, as well as to conserve tax dollars, drug prohibition must end. The present drug policy laudable goals of lessening the incidents of crime, drug addiction, juvenile drug use and stemming the flow of illegal drugs into this country have not only failed but have, in fact, only magnified our problems as society continues its “war on drugs”. LEAP believes a system of regulation and control is more effective than one of prohibition.
LEAP went public in July of 2002 and has grown from the five founding members to over 1,000 participants. We have 55 speakers living in 30 of the United States and in 5 other countries. All LEAP speakers are current or former drug-warriors. We also have a powerful and respected Advisory Board, made up of a former U.S. Governor, four sitting Federal District Court judges, a county sheriff, four former police chiefs (including a former commissioner of New York City Police Department), the Mayor of Vancouver, British Columbia who is retired from the Royal Canadian Mounted Police, the former Attorney General of Colombia, South America and from the United Kingdom, a former Chief Constable of Police.[i]
The mission of LEAP is (1) To educate the public, the media, and policy makers, to the failure of current drug policy by presenting a true picture of the history, causes and effects of drug abuse and the crimes related to drug prohibition; (2) To create a speakers bureau staffed with knowledgeable and articulate former drug-warriors who describe the impact of current drug policies on: police/community relations; the safety of law enforcement officers and suspects; police corruption and misconduct; and the financial and human costs associated with current drug policies; (3) To restore the public’s respect for law enforcement, which has been greatly diminished by its involvement in imposing drug prohibition; (4) To reduce the multitude of harms resulting from fighting the war on drugs and to lessen the incidence of death, disease, crime, and addiction by ultimately ending drug prohibition.
So, if drug prohibition was repealed what would law enforcement and the judicial system look like after three decades of fueling the war on drugs with over half a trillion tax dollars (in Canada and the United States) and the court system choked with ever-increasing prosecutions of nonviolent drug violations? This is an important question to consider since, in the US, with the war on drugs, their prison population has quadrupled and has made building prisons their fastest growing industry. They have imprisoned more than 2.2 million of their citizens and every year arrest an additional 1.6 million for nonviolent drug offenses—more per capita than any country in the world. The United States has 5% of the population of the world but 25% of the world’s prisoners. Despite all that, illicit drugs are cheaper, more potent, and easier to get than they were 30 years ago.
Why, despite this justice system work ethic, are people are still dying in the streets and drug barons continue to grow richer than ever before? The answer is easy: the international illicit drug business generates as much as $400 billion in trade annually according to the United Nations International Drug Control Program. That amounts to 8% of all international trade and is comparable to the annual turnover in textiles (Source: United Nations Office for Drug Control and Crime Prevention, Economic and Social Consequences of Drug Abuse and Illicit Trafficking (New York, NY: UNODCCP, 1998), p. 3).
But the profits of the drug dealers themselves is not the only drain on the economy consider the Drug Enforcement Agency (DEA) in the US which has expanded its personnel to three times the amount it had in 1973 and its budget has gone from $75 million in 1973 to one billion 550 million dollars in 2001—an increase of more than 20 times the original amount. And, according to the US Drug Enforcement Administration, from 1980 to 2000 arrests for all drug violations tripled and arrests for marijuana drug violations nearly doubled. In 2000 marijuana arrests still amounted to nearly half of all arrests for drug violations and 84% of the marijuana arrests were for possession.
(Source: US Drug Enforcement Administration Table for 2001).
The numbers in Canada show a similar tale where, in 2002, three in four drug crimes involved marijuana – and approximately 72 % of those were for possession, more than half of all drug-related offences are possession of pot (Statistics Canada). Across Canada drug related crime was up just over 42%, the highest in 20 years with about 93,000 drug offences in 2002; again, with possession of marijuana charges increasing by 80 per cent between 1992 and 2002. Statistics Canada also revealed that in 2002, drug offences accounted for 9% of adult court cases, and 7% of all youth court cases.
And those are not the only direct costs, for an idea of how current drug prohibition translates into prison costs let us look at the US where The Bureau of Justice Statistics reports that in 1999, the nation spent $146,556,000,000 on the Federal, State and Local justice systems. In that year, the United States had 1,875,199 adult jail and prison inmates. Based on this information the cost per inmate year was:
— Corrections spending alone: $26,134 per inmate
— Corrections, judicial and legal costs: $43,297 per inmate
— Corrections, judicial, legal and police costs: $78,154 per inmate
(Source: Gifford, Sidra Lea, US Department of Justice, Bureau of Justice Statistics, Justice Expenditure and Employment in the United States, 1999 (Washington, DC: US Department of Justice, February 2002)).
Further, it was found that “prisoners sentenced for drug offenses constitute the largest group of Federal inmates (61%) in 1999, up from 53% in 1990. On September 30, 1999, the date of the latest available data in the Federal Justice Statistics Program, Federal prisons held 63,360 sentenced drug offenders, compared to 30,470 at yearend 1990.” (Source: Beck, Allen J., PhD, US Department of Justice, Bureau of Justice Statistics, Prisoners in 1999 (Washington, DC: US Department of Justice, August 2000)).
And, more importantly, repealing drug prohibition would also address the intangible cost of institutionalized racism that plagues the justice systems of both Canada and the United States. According to a Statistic Canada 2001 Federal Census, in British Columbia, 17 % of adult prisoners and 29% of incarcerated youths are aboriginal (this is shocking considering that the aboriginal population of Canada is approximately 2%). For the US, a Federal Household Survey revealed that although Caucasians constitute 72% of all drug users in the US while African-Americans constitute 15% of all drug users, over 37% of those arrested for drug violations are African Americans and over 42% of those in federal prisons for drug violations are black. Further, African-Americans comprise almost 60% of those in state prisons for drug felonies (Sources: Substance Abuse and Mental Health Services Administration, National Household Survey on Drug Abuse: Summary Report 1998 (Rockville, MD: Substance Abuse and Mental Health Services Administration, 1999); US Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1998 (Washington DC: US Department of Justice, Bureau of Justice Statistics, August 1999)). Thus, these overarching monetary costs and the cost to our collective humanity need to be addressed and we need to start thinking outside the box (or more correctly the “prison mentality”).
This brings us to the question of what legalized marijuana would look like to law enforcement. We can skip past the obvious cost-savings to the government once the failed enforcement attempts are abandoned, money which could then be applied to drug education and addiction issues. Simply, marijuana, legal and regulated would be more effectively controlled such that it is not so readily available to our youth. Regulation can follow different venues, one of which is that provided for the distribution and sale of alcohol or cigarettes. Drug dealers do not worry about underage customers or product purity as (bar owners or store owners must) since they have no “license” to pull or a chance of losing business (business is so good that as one drug dealer is arrested another immediately steps in to take his place). Further, with legalization comes self-regulation and government standards which would be more readily enforced and therefore complied with by the vendors who do not want to risk losing their licenses. This regulatory process already exists in regards to cigarettes and alcohol and could be easily incorporated to include the sale of marijuana, thus freeing up policing resources.
We have tried the facile “Just Say No” campaign and kids are still smoking marijuana; we have tried as hard as we could to arrest our way out of the problem but it is here to stay we must now change tactics. Society has yet to be successful in preventing its citizens from obtaining in-demand products (ever since Eve bit the apple), so the strategy must turn to regulation and education. From a law enforcement perspective, once the burden of the social issue of drug use is lifted from policing shoulders, the time, effort, money and human resources can be utilized to true policing concerns. The very title, “war on drugs” illustrates what is problematic with the law enforcement philosophy i.e. as a military role rather than what it should be, an agency of the community for the community, a large part of which freely chooses to smoke marijuana. From the recent scandals that have occurred and are still occurring in large cities and small, we can see that with this failed war on drugs comes the corruption and police abuses that drug enforcement agents and their agencies must constantly be vigilant against. The removal of the war on drugs will assist in furthering the police officer’s role as a community leader and problem-solver as opposed to a “warrior” against drugs. With drug enforcement removed as a concern, the majority of the efforts of police officers can turn to problem solving for those in need and who have nowhere else to turn as well as ensuring the smooth operation of the community.
[i] The LEAP Advisory Board is composed of the following current and former members of law enforcement:
The Honorable Larry W. Campbell, Mayor of Vancouver, BC and former member of the RCMP
The Honorable Warren W. Eginton, Judge, U.S. District Court, Bridgeport, Connecticut, U.S.A.
The Honorable Gustavo de Greiff, former Attorney General of Colombia, and Ambassador to Mexico, Bogotá, Colombia
The Honorable Gary E. Johnson, former Governor of the State of New Mexico, U.S.A.
The Honorable John L. Kane, Judge, U.S. District Court, Denver, Colorado, U.S.A.
The Honorable Whitman Knapp, Judge, U.S. District Court, New York City, New York, U.S.A.
Sheriff Bill Masters, Sheriff of San Miguel County, Telluride, Colorado, U.S.A.
Dr. Joseph McNamara, former Chief of Kansas City, Missouri and San Jose, California Police Departments, U.S.A.
Mr. Patrick V. Murphy, former Police Commissioner, New York City Police Department, U.S.A.
Mr. Robert P. Owens, former Chief of San Fernando and Oxnard, California Police Departments, U.S.A.
The Honorable Robert W. Sweet, Judge, U.S. District Court, New York City, New York, U.S.A.
Mr. Francis Wilkinson, Esq., former Chief Constable, Gwent Police Force, South Wales, UK
Distribution of Medical Cannabis in CA
The Compassionate Use Act:
On November 4, 1996, California voters passed Proposition 215, also known as the Compassionate Use Act (“CUA”), to “ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes” without criminal penalty. Since then, hundreds of medical marijuana patients and those who supply them with the medicine they need have been searched, arrested and prosecuted for marijuana violations, in large part because the CUA has been interpreted in a very obscure manner.
The CUA provides basic protections for medical marijuana patients and their primary caregivers from prosecution for cultivation and possession of marijuana for medical use. Since it became effective on November 5, 1996, California courts of appeal have, for the most part, narrowly construed its provisions, fearing an “open sesame” for marijuana distribution not intended by the California voters. As a result of their extreme caution, medical marijuana patients and their caregivers were left largely unprotected from arrest and prosecution for transporting and distributing medical marijuana, as well as the seizure of their medicine, even when they had valid documentation proving their eligibility for the protections of the CUA. Their fates depended largely on the discretion of the local police, which has proved a mixed blessing due to vast disparities in the local guideline amounts of marijuana that a qualified patient could possess without fear of legal repercussion.
Two legal models exist under the CPU:
- The Individual model is simply patients growing their own medicine for personal use
- The Caregiver model is a designated person growing cannabis for a patient who is unable.
Self-implementation of distribution:
Under the CPU, patients with a doctor’s recommendation can obtain medical cannabis to treat their illness. This act left unclear, however, the means by which they should receive this medicine, and made no mention of distribution of cannabis to qualified patients. Despite the limited protection afforded under the law, patients and caregivers pushed the envelope to find distribution models that work for the many different types of patients. These issues were debated in several conflicting court decisions. Following the passage of the CPU, the implementation of the law was completely sporadic across the state. In areas that are more progressive and/or had a significant patient base, cities and counties were tolerant if not supportive of the dispensary model and set large plant numbers for patients and caregivers. In more conservative areas, law enforcement or the courts did not recognize the CPU Act at all. This lead to almost completely unregulated system of distribution that includes:
- The Cooperative model seeks to combine the efforts of patients and caregivers, as the two work together to educate the public and grow cannabis. Each individual involved is expected to give what he or she can to the endeavor. In return, the cooperative offers its members safe access to medical cannabis, often at no cost.
- The Dispensary model is perhaps the most simple, basic mechanism through which patients receive medical cannabis. Each dispensary maintains its own membership of legally qualified patients, and those members are allowed access to safe and affordable cannabis medicines.
- A Dispensary or Cooperative with patient services is a more comprehensive model. This dispensary does not simply provide its members the opportunity to secure safe, medical-grade cannabis, but also offers other services to meet the needs of the patient’s general well-being. In this way, the dispensary becomes its patient’s primary caregiver, as well as a provider of medicine. At these facilities, health professionals including nurses, doctors, and alternative medicine therapists provide consultations and other services. Attorneys provide legal training to educate patients and caregivers as to their constitutional protections. Grow workshops are another common service provided, along with peer counseling groups, classes, special events, and hospice style care.
SB 420- defining and clarifying distribution:
On January 1, 2004 S.B.420 became law in California and was an attempt to clarify the CPU and to set up a voluntary ID program to protect patients and caregivers from arrest. S.B.420 has expanded the protections available to those who cultivate medical marijuana for distribution through cooperatives. Before the enactment of S.B.420, nearly all cooperatives were operating illegally, even under California law, because the Compassionate Use Act only exempts from the marijuana laws cultivation and sales of medical marijuana; it does not exempt sales or distribution. Thus, even though courts had carved out an exception for qualified patients reimbursing their primary caregivers for the “bona fide reimbursement of costs” from cultivating medical marijuana, most cooperatives were left unprotected by the CPU (except for the tolerance afforded by local officials) because courts were reluctant to recognize cooperatives or their individual employees as “primary caregivers” under the CPU.
S.B.420 has expanded the opportunities for cooperatives to supply marijuana to the seriously ill patients who need it in several ways. First, S.B.420 expressly exempts collectives and cooperatives formed in California for cultivating marijuana for medical purposes from prosecution for cultivation and distribution of marijuana, and for maintaining a place where marijuana is used and sold. Second, S.B.420 greatly expands the amount of compensation a primary caregiver may receive for distributing marijuana to a qualified patient. Although it is still illegal to distribute medical marijuana for profit, Cal. Health & Safety Code § 11362.765(a), a primary caregiver may now receive “reasonable compensation for services provided” and out-of-pocket expenses. H & S § 11362.765(c). Thus, primary caregivers and cooperatives may be reimbursed for cultivating marijuana for qualified patients, including a reasonable amount for their labor, so long as they do not otherwise earn a profit. Finally, each designated primary caregiver of the cooperative may possess up to six mature or 12 immature plants per qualified patient, which can amount to a great quantity if the cooperative serves more than a few patients.
Prop S- a step toward municipal distribution:
Proposition S is the San Francisco ballot initiative passed in 2002 that directs the city to look into growing and distributing marijuana for medical purposes. The first initiative of its kind in the country, Proposition S was a direct reaction to the federal government’s paramilitary raids on San Francisco medical marijuana cooperatives.
The wording of this proposition is very weak. In fact, the proposition only requires the city to “look into” growing and distributing medical marijuana. Currently, a coalition of patients groups and advocacy organizations are trying to map out models for the city. The most popular model has been the city providing land/property for patient collectives to grow their medication.
Oakland- A step toward regulation of dispensaries:
February 18th 2004, the city of Oakland became the first city to pass a resolution regulating dispensaries. On June 1st, 2004 after an inspection and compliance process, the city of Oakland will give 4 business permits to dispensaries. Berkeley, Santa Cruz, and San Francisco are considering a similar model.
AN ADDRESS BY
SENATOR PIERRE CLAUDE NOLIN
British Columbia Civil Liberties Association, Vancouver
Ladies and gentlemen, first, let me thank the organizers and especially M. Kirk Tousaw, the Policy Director of the British Columbia Civil Liberties Association for inviting me to this important conference on a multidisciplinary approach to law reform on cannabis.
Many centuries ago, Aristotle said the following about the world of politics, and I quote: “Changes in the arts and sciences have certainly been beneficial; medicine, for example, and every other art and craft have departed from traditional usage. And, if politics be an art, change must be necessary in this as in any other art. That improvement has occurred is shown by the fact that old customs are exceedingly simple and barbarous. (…) But when we look at the matter from another point of view, great caution would seem to be required. (…) The analogy of the arts is false; a change in a law is a very different thing from a change in an art. For the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law.” End of quote.
After having been in the Canadian political field for the last 20 years, after having studied the complex issue of drug law reform in Canada and elsewhere in the world for the last eight years, I can tell you that the enlightened and visionary reasoning of Aristotle can apply to this file.
Since the Senate Special Committee on Illegal Drugs tabled its report, in September 2002, I can tell you that things are starting to change in Canada. Finally, after more than 80 years of prohibition of cannabis along with the prejudices, myths and adverse effects that came with it, there is hope that the 21st century will mark the end of this insidious policy which has not had any beneficial long-term effects.
In honesty, the Special Committee was not the first one to study proposals meant to reform our national policy on cannabis.
More than thirty years ago, the Le Dain Commission released its report on cannabis. This Commission had far greater resources than did we. However, we had the benefit of a much more highly developed knowledge base and of thirty years’ historical perspective. The Commission concluded that the criminalization of cannabis had no scientific basis. Unfortunately, the Commissioners were not able to reach a consensus on their recommendations to modernize this outdated public policy.
According to the testimony of professor Line Beauchesne, a renowned criminologist from the University of Ottawa, to the Special Committee, a majority of Commissioners adopted a so-called paternalistic position, aimed protecting the users against themselves, while Commissioner Campbell took a so-called moralistic position, aiming to impose the moral values of the majority. Finally, Commissioner Bertrand took a so-called liberal position based on self-responsibility.
Today, politicians, researchers, lawyers, police officers, medical physicians and a majority of Canadians citizens – more than 86 % according to recent public opinion polls – around our country are no longer afraid to say that status quo is not acceptable anymore.
After having had the honour and privilege of chairing the Special Committee, I firmly believe, that for the preservation of life, public health, personal safety and autonomy, freedom and democracy, prohibition of cannabis use and production needs to be abandoned. Listening to the various proposals that I’ve heard earlier today from outstanding speakers, I believe we all agree that the status quo is not an option.
Having said that, what kind of reform is needed to put an end to this public policy failure? For example, if we take cannabis, some would prefer that it be decriminalized or simply legalized. What is the best option for citizens and governments? Canadians who are debating this important issue deserve clear answers from their elected officials and, first and foremost, they do not want to repeat the undue multiplicity of mistakes that tainted the evolution of the Canadian policy on cannabis since 1923, the year where this so than called evil substance became illegal.
To answer these complex and highly emotional questions, the Senate of Canada established the Special Committee on Illegal Drugs in April 2000 to study this important matter, to intelligently and objectively provide information to Canadians, and to recommend appropriate reforms in order to develop a “Canadian Solution” on cannabis and other psychoactive substances.
To accomplish those ambitious objectives, we did not want to repeat the error of the Le Dain Commission with three reports recommending three different solutions to Canadians. To avoid this situation and to initiate an honest, effective and transparent social debate, we decided to develop guiding principles that I will later present.
The basic thesis underlying our report is the following: in a free and democratic society like Canada’s, citizens ought to have the right to make informed decisions about their behaviour, on the condition that they do not cause undue harm to others, and the State must favour such autonomous responsibility. We firmly believe that cannabis use falls into this category. We concluded that this substance is less harmful than tobacco and alcohol, both of which are legal. We questioned why it should not be treated in the same manner at least?
Nevertheless we established that in the name of public health protection, public intervention was needed. Even though we acknowledge that the excessive use of cannabis involves health risks, we found no valid reason to use criminal law, beyond repression of criminal trafficking or driving under the influence of cannabis often mixed with alcohol, as a means of protecting public health and safety in this case.
What should be the true role of the state? The Special Committee concluded that state intervention in the matter of cannabis and other psychoactive substances should be guided by the following objective principles: a principle of ethics based on reciprocal autonomy and responsibility; a principle of governance based on the need to facilitate individual choice; a legal principle, whereby only actions involving significant harm to others should be matters of criminal law; and a scientific principle, whereby knowledge, always incomplete, and ever necessarily being developed, can only help communities and governments make decisions.
Those four important objective guiding principles – that can be used to study other complex issues such as prostitution – were at the heart of our study, and followed us in the analysis of the testimony of 234 witnesses, including ordinary Canadians. We also rigorously reviewed a phenomenal number of scientific studies and data on the many facets of the problems involved in cannabis.
This lead us to our conclusions about the current Canadian policy on cannabis and other drugs. In Canada, the criminalization of illicit drug use as a strategy to protect the population from one of the most serious scourges of human history has subtly veiled the real issues at stake in the policy, as well as the way it has ravaged many communities while making it impossible to establish intelligent and efficient prevention and public education programs, and better focused and respectful treatment measures.
Despite the extremely strict statutes passed since almost a century to deal with users and traffickers, and the billions of dollars spent annually to enforce them, these substances can nevertheless still be found in our schoolyards and local communities.
In other words, the prohibition policy has had no impact on trends in drug use in Canada, given that at least 40 per cent of young Canadians aged 12 to 17 years – that’s over a million young people – have used cannabis in the past twelve months and 10 per cent, or 225,000, use this drug every day!
Nevertheless, many other models of public policy – ones that place an emphasis on health protection and on reducing the harm caused by drugs and their criminal prohibition – have been developed over the past 30 years in Europe as an alternative to criminal law. We studied with great interest the policies developed by countries such as the Netherlands, Portugal, Spain, Germany, France, Switzerland, the United Kingdom and Australia.
Since the report’s publication, I’ve always said that the Special Committee do not promote the recreational use of cannabis or other psychoactive substances.
We simply want governments to be accountable and to empower citizens with respect to the cannabis use phenomenon and all other drugs. Having said that, it was clear for the Special Committee that legislation, particularly criminal legislation, is only one of the tools of a global, effective and respectful public policy on psychoactive substances.
After having carefully studied these issues, I am convinced that it is essential for Canada to develop an integrated national strategy on the use of all psychoactive substances, based on objective guiding principles that I have mentioned earlier.
Adequate funding levels are essential to strengthen our understanding of the patterns of use and the impacts of drugs, thereby making it possible to create and implement innovative prevention and treatment programs, as well as strict evaluation and monitoring mechanisms.
Once the reach of this ambitious objective has been properly recognized, federal and provincial governments could establish a regulatory framework governing the use and production of cannabis. I am referring here to the concept of legalization with strong government control. As you see, for the Special Committee, legalization of cannabis does not mean establishing a “free market environment for drugs” as some people are arguing.
After many years of hard work, I can say that our committee has succeeded in offering an alternative to prohibition that is both promising and innovative.
Many people were surprised when I’ve stated that I was against Bill C-10 that would depenalized the simple possession of small amounts of cannabis.
Some will say that this Bill is a step in the right direction, one that gives society time to become accustomed to cannabis, to convince opponents that chaos will not result, and, finally, to adopt effective preventive measures.
I believe however – it is also the opinion of the Special Committee – that this approach is in fact the worst-case scenario, depriving the State of a regulatory tool needed in dealing with the entire production, distribution, and consumption network, and delivering a rather hypocritical message at the same time.
It is obvious that criminal legislation still remains the privileged way use by the federal government to deal with cannabis phenomenon.
In fact, even if Bill C-10 is part of a modernization of the outdated Canada’s Antidrug Strategy adopted in 1987, it is not aimed at dramatically reducing the amount of people, especially youths, arrested each year for simple possession or cultivation of small amounts of cannabis or to finally enable personal autonomy and enlightened decisions.
The main objective of this bill is to give more tools to police officers to catch these people. This is what we call the net-widening effect. First of all, it is obvious that criminal legislation still remains the privileged way by which the federal government deals with cannabis use. In other words, it is still considered as an abuse.
Furthermore, instead of putting an end to the problems related to the development of secure source of access to cannabis and the growth of organized crime, Bill C-10 will boost the expansion and the enrichment of criminal organizations across Canada.
While police officers will have more resources to deal with the big producers and traffickers of cannabis, the adverse effect could be to significantly raise the risk premium usually associated with those two illegal activities bringing more people especially young people into those gainful “businesses”.
In the end, this situation will be profitable to organized crime that will be able to plow back huge profits into money laundering and develop new technologies to frustrate police investigation procedures.
For all these reasons, I cannot support Bill C-10. Even though I am proud of our recommendations compared to the approach proposed by the federal government, my experience in politics leads me to be realistic about what the future holds for them.
Canada’s geographic position, its major trade relationship with the United States, and issues surrounding border protection and Canada’s international obligations with respect to the control of illegal drugs mean that, if the Canadian government were to decide to act upon our recommendations in the near future, it would have to begin by adopting a new public policy on drugs.
The legalization of cannabis could only be considered simultaneously with the United States and other countries doing the same, or if we asked for the renegotiation of international conventions. I will be discussing this issue in a few minutes.
Even though many years will likely go by before the dawn of the new day arrives, I am convinced that the days of prohibition are numbered. Why? Because Canadians want rigorous and objective information not only about cannabis and other legal and illegal psychoactive substances, but also about the harmful effects of the war on drugs.
They know that all use is not abuse. They are becoming increasingly aware that the current policy is a costly failure, and are desperately searching, as I have said earlier, for answers to their legitimate questions.
They want transparency in an informed, comprehensive and democratic public debate on these substances.
Only citizens can force their governments to put an end to prohibition, and from that standpoint, I believe, in all modesty, that our work, especially regarding guiding principles, constitutes an excellent contribution to the democratic process and to collective thinking on these issues.
Before I conclude my remarks, I would like to address the issue of the deadline of 2008 for a drug-free world decided by the United Nations in 1998 and the reform of our public policy on cannabis in an international context.
In 1998, the United Nations agreed, at a Special Session of the General Assembly to eliminate – or at least significantly reduce – the cultivation of cannabis, coca leaf and opium poppy, as well as the demand for these psychoactive substances, by 2008.
In March 2003, representatives of more than 100 countries met again, in Vienna, during the 47th Session of the United Nations Commission on Drugs to reaffirm their commitment to, and hence their faith in, prohibition.
Let us be clear, a drug free society has never existed in human history and will not exist in the near future. Greediness caused by prohibition had too many injurious consequences that go way beyond health problems and growth of organized crime. Today, prohibition threatens the basis of democracy, economy and the rule of law in many countries or regions of the world.
Sooner or later, governments around the world will have to, in the names of transparency and honesty, acknowledge this massive failure. As I pointed out earlier, many countries, mostly in Europe, have reviewed or are currently reviewing their policy on illegal drugs within the straitjacket of the current international framework. Now this analysis must be taken to the next level: the international one.
In this area of public policy, nobody can act alone. In that sense, multilateral discussions may be a pragmatic solution to the ineffectiveness of worldwide prohibition of cannabis and other illegal drugs. Otherwise, national reforms will not be effective.
To be successful, this important discussion must be open, honest, respectful and rigorous. By 2008, governments need to provide clear answers to citizens who debate drug policy reform in civil society. Time is running out and they must begin to work on them now. They need to offer to their citizens hope and innovative solutions, whatever they may be, not only speeches of experts or old recipes from the past.
To conclude, I honestly submit to you that the framework and guiding principles used by the Special Committee could not only be used here in Canada, but also by the international community to accomplish this ambitious task over the next 3 years. I’m convinced that Canadians can play an important role in this public policy field. The war on drug discourse is outdated and disrespectful. It is time to make our political leaders accountable. It is time to empower citizens, individually and collectively, on their responsible behaviour on cannabis and other illegal drugs.
It is only after having accomplished these objectives, that we will be able to achieve historical reform of our policy in this field. Thank you very much.