Reforming cannabis penalty regimes to reduce harm
Two ways some jurisdictions have tried to reduce cannabis-related harm is by changing the laws that apply to cannabis (de jure changes), or by modifying the way these laws are enforced by police (de facto changes).
Simon Lenton
De jure changes can include prohibition with civil penalties, and partial prohibition. Under the former, possession and use remain illegal but civil rather than criminal penalties apply, and more severe sanctions are maintained for larger-scale possession supply offences. Such a system applies to cannabis use in 11 US states and four Australian jurisdictions – South Australia (1987), the Australian Capital Territory (1992), the Northern Territory (1996) and Western Australia (2004). Under partial prohibition, personal use activities are legal, but commercial activities are illegal. Examples exist in Columbia, Spain (where possession is only considered punishable if it is for consumption in public places) and Switzerland.
De facto de-penalisation can include prohibition with cautioning and/or diversion schemes (examples of which operate for a range of drugs in Italy, Portugal and Australia) and prohibition with an expediency principle. Under the latter, all drugrelated activities are illegal, but cases involving defined small quantities are not investigated or prosecuted. Examples of this system operate for cannabis in Belgium, Germany, Denmark and the Netherlands.
Although the published evidence evaluating the impact of cannabis policies is not large, caution needs to be exercised in its interpretation. The policy environment is a dynamic one where effects decay, and what is originally implemented changes over time. International comparisons are difficult, and results can be confounded by cultural, political, geographic and climatic differences. Cannabis law reforms often occur in locations with already high rates of use. Consequently, pre-post or longitudinal designs with ‘matched’ control locations are needed to identify true impacts. Any research evidence is at best indicative, as the actual impacts of any future cannabis policy reforms will depend on contextual factors and how the reforms are implemented. Therefore, it is important that changes to cannabis policy are evaluated, monitored and reviewed.
Most of the available published research has been done on moving from strict prohibition to prohibition with civil penalties. Taken as a whole, this research finds that removing criminal penalties for cannabis possession and use does not result in higher rates of cannabis use, but does reduce the adverse social impacts of conviction in terms of employment, further contact with the criminal justice system and so on. Savings in police and court resources can be considerable, but depend on the size of the jurisdiction and the way the schemes are implemented. There have been a small number of studies in the economics literature that have claimed that rates of cannabis use are higher in those states that have “decriminalised”.
However, because these studies have not taken into account rates of use prior to the legislative changes, it cannot be concluded that the higher rates of use were as a result of the legal changes, particularly as those states that reduce penalties often have higher rates of use beforehand. Yet there is more compelling evidence that rates of cannabis use would likely increase, especially among the young, if use was legalised.
Cautioning schemes where first-, second- or third-time apprehended cannabis users are required to attend education or treatment, rather than get a conviction, are in place in four Australian jurisdictions. While politically expedient and supported by the drug treatment sector, evidence of their effectiveness is thin. There is a concern that tying up treatment resources with this group may not be the best use of this valuable resource.
Questions remain about whether those diverted to treatment actually engage or may be more willing to do so in future. Also, given that only between two and five percent of cannabis users have contact with the criminal justice system in any one year, it is doubtful whether a system built around this group is ideal, even if we assumed that the majority of them had significant cannabis use problems.
Similarly, prohibition with civil penalties schemes can have unintended consequences depending on the scheme and how it is implemented. For example, the South Australian (SA) scheme has been shown to have a low rate (45 percent) of people paying their fines by the due date. In comparison, the Cannabis Infringement Notice Scheme implemented in Western Australia (WA) since 2004 has an overall rate of 65 percent, as those who fail to pay or attend an education session in lieu of fine risk having their driver’s licence cancelled.
Similarly, the SA scheme resulted in significant “net widening”, with the number being processed for minor cannabis offences increasing by 2.5 times after the scheme was introduced, due to the ease with which notices could be issued. While the WA scheme has resulted in some net widening, this has been modest, possibly because police are processing apprehended users at the police station where they are photographed and finger printed, rather than issuing the notices in the field, as intended by the scheme’s designers.
Socially and economically disadvantaged members of society, such as indigenous people, may be disadvantaged by new penalty options, just as they often are with existing criminal justice responses. Special effort needs to be made to monitor and address this.
The legislative changes in WA were about treating cannabis use as a health and social issue, rather than primarily one of criminal law. Importantly, this was not simply for the small proportion of cannabis users who are apprehended by police each year, but for the more than 90 percent who are not. Limited but growing evidence suggests that cannabis users may be more willing to voluntarily seek help for cannabis problems in an environment where civil rather than criminal penalties apply.
Yet legislative changes themselves at best only provide a context for reducing use and harm. If this is to be capitalised on, the penalty changes need to be accompanied by: balanced public education about cannabis, the law, the realistic risks and harms and how these can be reduced; and provision of a range of accessible, effective and attractive treatment options for those with cannabis-related problems.
Associate Professor Simon Lenton is a Deputy Director at the National Drug Research Institute in Perth.
