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FIVE LEGISLATIVE OPTIONS

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Chapter 4.


Introduction

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

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

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

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

Option 1: Total prohibition

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

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

PART A: THE UNITED STATES:

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

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

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

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

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

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

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

Rationales

Pragmatic rationales

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

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

Philosophical rationales

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

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

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

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

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

Outcomes

Although the price of cannabis has increased with the policies
of prohibition, the increase has not had the intended effect of
significantly reducing cannabis consumption. Despite half a
century of total prohibition, cannabis is still the most widely
used of illicit drugs in the US. Household surveys of drug use
conducted by the National Institute on Drug Abuse have found that
almost 68 million people in the US reported that they had used
cannabis, including 9.7 million who reported that they had used
it in the past month. In other words, some 33 per cent of the
household population aged 12 years or older reported they had
used marijuana in their lifetimes and 5 per cent reported having
used the drug in the past month. (NIDA, National Household Survey
on Drug Abuse: Population estimates 1991; cited in [9]US Bureau
of Justice Statistics 1992, p26).

It could be concluded that the prohibition of cannabis has not
been successful in eradicating or even significantly decreasing
cannabis use in the United States. On the other hand, it could be
argued that the policy has prevented an even higher level of use
occurring. From 1981 to 1987, 5.3 million kilograms of marijuana
were seized, however Customs, Coast Guard and the DEA believe
that they seized only 10 per cent of the marijuana entering the
country ([10]Inciardi & McBride 1990, p284). Despite the
fluctuations in price that law enforcement efforts may cause to
cannabis markets from time to time, demand for cannabis has, it
is claimed, remained relatively unchanged. Nadelmann has argued
that ‚the greatest beneficiaries of the drug laws are organised
and unorganised drug traffickers. The criminalisation of the drug
market effectively imposes a ‚value added tax‘ ([11]Nadelmann
1991).

The law enforcement program associated with prohibition has
also been costly, both in financial and social terms. In 1986 the
Federal expenditure on cannabis enforcement was estimated to be
around $800 million, and it is thought to have significantly
increased since then (Kleiman 1986). This figure does not include
state and local expenditures on law enforcement and criminal
justice. Every year there are 350,000 arrests for cannabis
possession alone, making this the third most common cause of
arrest in the US ([12]Kleiman 1992, pp267-8).

The social costs of the law enforcement program are also high.
[13]Kleiman (1992) claims that the majority of people who are
arrested for buying and using cannabis rarely do anything else
that might bring them to the attention of the criminal justice
system and that, for many users, being subject to arrest and
criminal justice processing is the most substantial risk of using
cannabis. The consequence of this is that large numbers of people
acquire criminal records and are stigmatised for what many would
see as relatively minor offences.

Kleiman also argues that the prohibition of cannabis
undermines the symbolic value of the criminal law. Since arrest
is the most immediate and frequent part of the punishment process
for all crimes, it is important that arrest should retain its
social meaning both as involving some substantial risk of further
punishment (to maintain its deterrent value) and as resulting
from the doing of some substantial harm (to maintain its moral
force). The fact that simple possession of marijuana is the third
most common cause of arrest puts strain on both of these symbolic
links. This contribution to the devaluation of arrest as a
sanction ought to be counted as a sizeable cost of current
marijuana laws ([14]Kleiman 1992, p268).

It has also been claimed by some opponents of the ‚war on
drugs‘ that one by product of prohibition is the abuse of civil
liberties (e.g. [15]Boaz 1990). In the United States, property
can be seized if a police officer alleges that a small amount of
a controlled substance, including cannabis, is found in the
property. Forfeiture can occur without indictment or conviction
of the owner of the property, a practice that Boaz claims is a
violation of civil rights.

The prohibition of cannabis has also had a number of
unintended consequences. It is argued that the patterns of
cannabis use have become more dangerous and the amount of
violence associated with the cannabis market has increased.
First, it is argued that the successful interdiction of cannabis
entering the US from overseas has resulted in increased
cultivation and production of cannabis within the country.
Nadelmann has claimed that the US has emerged as one of the
world’s leading producers of cannabis ([16]Nadelmann 1991, p787).
He also argues that international drug traffickers have
redirected their attention from cannabis to cocaine, resulting in
a ‚glut of increasingly potent cocaine being available and a
shortage of comparatively benign marijuana‘ ([17]Nadelmann 1991,
p787).

It is also argued that prohibition has caused an increase in
the crime and violence associated with cannabis markets and an
increase in the content of THC (the major psychoactive
ingredient) of cannabis. When the majority of cannabis used was
imported from other countries, the distribution system for
cannabis was much smaller. The production of cannabis within the
US, it is argued, leads to more small and medium producers with a
wider, more competitive and possibly more violent distribution
system (Kleiman 1986; [18]Wardlaw 1992). Domestic enforcement
has, it is argued, resulted in more technology-intensive methods
of cultivation and an increase in the potency of cannabis
([19]Reuter 1987). The fact that the sale of water pipes for
smoking cannabis is illegal means that users more often consume
cannabis in cigarette papers, which is the form of consumption
most damaging to their lungs (Reuter 1987).

Given the costs of this form of prohibition, and its relative
lack of success, it is perhaps surprising that the US drug
strategy enjoys widespread support from the American people. In
Gallup surveys conducted from 1969 to 1985, people were asked:
‚do you think the use of marijuana should be made legal or not?‘.
In 1985, 23 per cent of respondents were in favour, 73 per cent
opposed and 4 per cent expressed no opinion ([20]Inciardi &
McBride 1990, p295). In October 1989 a Time/CNN poll found that
79 per cent of the population would be willing to pay higher
taxes if the money were used for fighting the ‚war on drugs‘
(Inciardi & McBride 1990, p295). The ‚war on drugs‘ is
supported by liberal and conservative politicians alike, public
debate on drug strategy is rare, and discussion of the
appropriateness of drug strategy has been described as ‚a parlour
sport for intellectuals‘ rather than a subject of general public
concern.

As noted above, during the 1970s a number of US states removed
the penal penalties for possession of small amounts of cannabis
for personal use (a process referred to in the USA as
‚decriminalisation‘), but this move towards a more liberal
approach was subsequently abandoned. Little information is
available on the basis of the policy reversal, referred to as
‚recriminalisation‘. Apparently the decisions were made not on
the basis of factual research into the impact of
decriminalisation, but rather on ideological grounds.
Opportunities were available for research comparing the
experiences of the various states, but apparently such research
was not undertaken, leaving policy to be made without a firm
information base.6

CONCLUSION – THE USA APPROACH

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

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

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

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

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

Part B: The Netherlands:

LEGISLATIVE PROHIBITION WITH AN ADMINISTRATIVE EXPEDIENCY
PRINCIPLE

Background

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

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

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

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

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

Rationales

Pragmatic rationales

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

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

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

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

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

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

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

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

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

Outcomes

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

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

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

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

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

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

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

CONCLUSION – THE DUTCH APPROACH

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

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

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

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

Conclusion – the total prohibition options

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

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

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

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

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

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