Reform Beyond Permitting Cannabis Use Regulating Availability

In cannabis control reform regimes where cannabis use is depenalized or even permitted on a de facto or de jure basis, as in the reform systems in the countries outlined above, the supply and availability of cannabis for the purpose of personal possession and use inevitably becomes a key practical matter. This is an especially challenging issue, since most standing drug control laws in these reform systems strictly prohibit and provide for heavy punishment for any cannabis supply activities (and in some instances have been strengthened further in exchange for more liberal control approaches to dealing with possession or use), and thus by default may expose most users to considerable criminal enforcement and consequences which the alternative use control measures are aiming to reduce or avoid. Conversely, some cannabis use control reform regimes have included provisions for a reduction of penalties (e.g. by way of imposing civil penalties, e.g. a limited non-criminal fine for the cultivation of a small number of cannabis plants) for limited cultivation of cannabis for personal use purposes (e.g. the various Australian civil penalty schemes in effect, or the proposed Canadian cannabis use reform law).

Yet there have been several other proposals which have taken the issue further and recommended for controlled or regulated cannabis availability schemes to be put into place as a complementary measure to legal control reform regimes aiming at use/possession. Under a regulated cannabis availability system all cultivation, sale and supply of cannabis would be controlled or regulated by the government to a greater or lesser extent, e.g. either by the government carrying out an active monopoly for cannabis production and distribution (e.g. via state-owned production facilities and/or outlets), or by way of regulating and licensing designated private or commercial producers and distribution outlets. Any cultivation or distribution occurring outside the government regulated system would likely be illegal and subject to criminal sanction (McDonald, Moore, Norberry et al., 1994). Such a licensing or monopoly system would resemble the systems by which alcohol production and dissemination is handled in a large number of jurisdictions (Babor et al, 2003).

Worldwide, at the present time there are few working examples of cannabis supply regulation, though several have been proposed (see Haden, 2004). Under the Dutch system of 'de facto legalization', the retail dissemination of cannabis in 'coffee shops' is regulated by state authorities, but not the production (Pakes, 2004; Lenton et al., 2000a; MacCoun & Reuter, 1997). A recent Senate inquiry in Canada recommended that a system of government controlled cultivation and distribution of cannabis for recreational purposes be implemented in conjunction with the legalization of personal cannabis use (Senate Special Committee on Illegal Drugs, 2002). The government-sponsored reforms specific to cannabis use proposed as part of the narcotics control law revisions in Switzerland in 2004 included provisions for state-regulated cannabis availability and dissemination in conjunction with the proposed de jure legalization of personal cannabis use (Fischer et al., 2003). The state-authorized bhang shops in Indian states are functioning examples of such systems.

The state-sanctioned existing distribution systems for medical cannabis users (e.g. cannabis buyers' clubs) in Canada and the US are another operating model of regulated cannabis availability, albeit limited to the special sub-population of medical cannabis users (Lucas, 2008; Hall & Degenhardt, 2003). These private facilities are granted permission from the state to distribute cannabis products to individuals recognized as medical cannabis users. The Canadian MMAP features an additional detail of interest, in that the federal government itself operates a cannabis cultivation facility (in an abandoned underground mine in Flin-Flan, Manitoba), which produces cannabis offered for distribution to members of the MMAP.

Conclusions

1. Cannabis use control reforms which have been implemented in different countries are not always easy to get detail on or to categorise cleanly according to the reform typologies proposed in our examination. Even within clearly defined parameters of legal cannabis control, legal provisions and their implementation change over time, vary within jurisdictions and can also hinge considerably on discretionary practices used by relevant authorities (e.g. institutions of the criminal justice system).

2. The main thrust of cannabis use control reforms observed has been towards less severe penalties for personal cannabis use, which can be expressed in either the quality (e.g. whether criminal or non-criminal) or the quantity (e.g. amount of fine) of penalties imposed. In many instances, however, traditional forms of punishment have been replaced by other behavioural requirements of the user, e.g. diversion to education or treatment. Few systems do not impose any penalties at all on cannabis users.

3. A key conceptual distinction for cannabis control reform systems is whether alternative regimes are brought about by so-called de facto or de jure mechanics. In the former, reforms are brought about by changes in how existing - usually conventional criminal - cannabis control law is applied. Such reforms then do not necessarily reflect the spirit or letter of the existing law, rely on discretion, and may be considered temporary or not solidly founded in the material base of law. The latter reform approaches are enshrined in law, and as such are an outcome of legislative or constitutional processes. As such, they represent a more explicit expression of existing norms regarding cannabis use, as well as offering greater predictability of consequences for cannabis users.

4. While quite a number of countries have implemented reform measures aiming at cannabis use control, fewer have addressed the issue of supply, often for political reasons. These issues are inevitably linked, since the use of cannabis requires that the product is obtained either by one's own cultivation, by trade or by purchase. In traditional criminal control systems, yet also in many reform systems, these activities are subject to heavy penalties and hence potentially expose the cannabis user to these consequences for supply activities, while the penalties for consumption are reduced. The link between use and supply thus remains a major policy challenge.

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