Does Cannabis Prohibition Work?

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Medical Marijuana

Fallen Cannabis Warrior
The drug legalisation debate is often conducted as if it depends upon whether a drug is essentially good or bad. In the case of cannabis, NORML will argue that the drug is ultimately safe, while Jim Anderton and Peter Dunne will tell you it's just bad. This debate is fruitless, because lawmakers need to know not just what harms a drug causes, but how effective drug policies are in controlling whatever harms the drug does cause. We need to evaluate not cannabis, but the law.

The New Zealand Drug Foundation have been urging New Zealanders to discuss cannabis more openly. Their Executive Director Ross Bell told Salient that our current National Drug Policy recognises that drug use is a health issue first and a criminal justice issue second, but the Misuse of Drugs Act 1975 does not take health treatment into account. At the government's request, the Law Commission has begun a review of the Misuse of Drugs Act, to investigate "whether the legislative regime should reflect the principal of harm minimisation underpinning the National Drug Policy," and what the most suitable models of regulation are. In particular, the Law Commission's review will ask whether the current A, B and C class categories should remain, given that the NZ Drug Foundation argues they do not reflect evidence of addictiveness or harm.

So let us evaluate whether our current cannabis laws are working. A law should serve three functions: to deter potential and actual offenders through the threat or application of punishment; to improve the offender through the Corrections system's ability to rehabilitate those caught; and perhaps most importantly, to reduce whatever danger the crime poses to the wider public. So we should evaluate prohibition on the grounds of deterrence, rehabilitation, and public safety.

i) Do cannabis laws stop the public from smoking cannabis? Under the Misuse of Drugs Act 1975, possession of cannabis is punishable by conviction as well as "imprisonment for a term not exceeding 3 months or to a fine not exceeding $500 or to both". The risk of being caught and punished is intended to deter the public from using cannabis. However, recreational cannabis use was relatively unknown in New Zealand at the time it was restricted by the Dangerous Drugs Act 1927. Contemporary statistics relating to cannabis use vary: Alcohol and Public Health Research Unit surveys of over 5000 people, conducted for the Health Select Committee inquiry into cannabis, show that 50 per cent admitted having used cannabis in 1998, rising to 52 per cent in 2001. A more detailed study has been conducted by the Christchurch Health and Disability Study (CHDS), which records detailed information on 1,265 people born in 1977. 67.3 per cent of the CHDS's subjects reported using cannabis by the age of 21. At the other end of the scale, a World Health Organisation report this year found that only 41.9 per cent of New Zealanders have used cannabis — but this is still the second highest rate in the world, behind the USA.

Whatever the correct figures, we know that around half of our population have used cannabis at some point. While this suggests that penalising cannabis does not prevent use, further evidence comes from a 1997 article in the journal Science, which found rates of cannabis usage remained statistically identical between the Netherlands — which legalized cannabis use in 1976 — and the USA throughout the 1990s.

ii) Do penalties for cannabis use reduce reoffending? While the above evidence suggests prohibition does not prevent the public from trying cannabis, we also need to know whether being caught and punished deters a user from reoffending. A 1976 Canadian study that interviewed those found guilty of possession found neither the certainty of punishment nor its severity had any correspondence to an offender's intention to use in the future (Patricia G Erickson, The Journal of Criminal Law and Criminology, June 1976). The CHDS study shows the same thing happening in New Zealand — of those subjects who reported being arrested for cannabis use, 90 per cent did not change the amount they used after arrest, 5 per cent decreased use, but the remaining 5 per cent increased use. This research suggests that prohibition has no effect on an offender's use.

Deterrence relies upon the perception that if you break the law you'll likely be caught — certainty of punishment. But it is common knowledge that very few of the large minority who smoke pot actually get caught (5.1 per cent, according to the CHDS), and fewer (3.6 per cent) are convicted. The law is not applied often enough to actually deter, but is common enough to damage a large number of lives. The law is commonly ignored, and the police could not change this even if they wanted to, but they still have to technically enforce it, and so over 14,000 people are arrested every year on cannabis charges. As the CHDS state in summing up their evidence: "The findings [of our study] show that the law was administered in an inefficient way, the application of the law was biased, and the law was ineffective in reducing cannabis use."

While prohibition does not deter New Zealanders from using cannabis, advocates of prohibition would argue that police intervention also helps to rehabilitate offenders — for example, families and schools can get the police involved when their kids are caught using. It is debatable whether or not this "tough love" approach actually works. Even presuming that it does, if cannabis were legal for only those aged over 18 to use, parents would still be able to get the police involved.

The argument that imprisonment helps addicts get off drugs is deeply flawed, as Corrections freely admits its guards do not prevent visitors smuggling cannabis into jail (indeed, guards at Rimutaka have been caught smuggling themselves). Furthermore, while around 80 per cent of prisoners in this country have some form of drug or alcohol dependency, there very limited places available in drug treatment programmes — this means that in jail, drugs are easier to get than treatment.

Public Safety
Arguably the most important function of the law is to keep the public safe from criminal activity — for example, preventing public cannabis smoking. This argument is undermined by the public J-day smokeups that occur in major cities each May, where hundreds flout the law with only infrequent threat of arrest. Furthermore, opponents of prohibition argue that it forces users to buy their supplies from criminal gangs. University of Canterbury criminologist Greg Newbold wrote in Crime in New Zealand that much of the nation's illegal drug trade was initiated by members of Hell's Angels serving time in Paremoremo in the late 1970s, suggesting that imprisonment has facilitated the drug trade.

The Successes of Prohibition
If prohibition does not deter users, does not rehabilitate offenders, and decreases rather than increases public safety, does it do anything positive? Newbold argues that until customs stepped up border control in the late 1970s and 80s, most of New Zealand's cannabis was imported form South East Asia, but following this crackdown local users have had to rely upon local producers. This has not reduced the amount of pot available, but it is good for our trade deficit, so at least that's something.

Arguably the most positive aspect of prohibition is that it has inspired a counterculture rich in protest songs that would not exist if they had nothing to protest. So if you like Peter Tosh's Legalize It or NORML's quarterly magazine, then you have something to thank prohibition for.

Many of the arguments in favour of cannabis legalisation — for example, that it's a breach of human freedom — would fall flat if we could show that prohibition reduced drug abuse. But since the statistics show this is not the case, we should ask whether it may in fact increase abuse. Technically, the sanctity of the doctorpatient relationship means addicts can seek treatment without fear that their details will be leaked to the police. However, many employers will fire workers who admit to using drugs, which means addicts are pressured to hide their problem. It is primarily this fact — that addicts are pressured into hiding their problem — which suggests that prohibition may increase the harms of drug abuse. Furthermore, by forcing users to seek cannabis on the black market, prohibition brings users into contact with vendors of harder drugs.

Why the problem remains
Legalisation will not solve drug problems; in fact the legalisation debate largely focuses on the relative harms and benefits of cannabis, while ignoring the real issue, which is the harms and benefits of the law. Ross Bell notes that during the Health Select Committee inquiries into cannabis New Zealand was able to have this debate; indeed, when the last inquiry reported its findings in 2003, it stated the prohibition "inhibits people's education, travel and employment opportunities. Prohibition makes targeting education, prevention, harm minimisation and treatment measures difficult because users fear prosecution. It also facilitates the black market, and potentially exposes cannabis users to harder drugs."

Although the government's own inquiries have suggested that the law does not work, Ross Bell notes that the potential for change has been stifled by politics: "The ability to even talk about cannabis was taken off the table by United Future's coalition deal, and since that time the awareness and understanding of cannabis has dropped." Bell hopes that the Law Commission will provide a "neutral territory where we can have these bigger conversations about a better way that we can get our law to support policy." It is also possible that an Obama victory in this year's US Presidential election could see an end to the USA obstructing any efforts to focus the war on drugs on harm minimization.

You can get involved in creating drug laws based upon evidence rather than fear. The Law Commission will produce an issues paper about the Misuse of Drugs Act by the end of the year, at which point they will ask for public submissions. Tell them what you think:


1) Fergusson DM, Swain-Campbell NR, Horwood LJ, "Arrests and Convictions for Cannabis Related Offences in a New Zealand Birth Cohort." Drug and Alcohol Dependence, 2003.

By Tristan Egarr | 11 Aug, 2008