| The
Audacity of Dope
The Past
Cannabis prohibition in New South Wales is now about
80 years old. Few know the real history of how this came about.
However, many accept uncritically an alternative history. But
more important than the history of cannabis prohibition in NSW
or Australia is the growing realisation that cannabis prohibition
has been a grotesque, expensive failure.
To put it simply:
‘Drug prohibition is
a joke inspired by religion designed to enrich criminals and terrorists
in the name of promoting morality. It is working, except for promoting
morality.’
Few realize how the decision to adopt cannabis prohibition
was arbitrary and capricious from the start. This decision was
made at a 1925 League of Nations meeting in 1925. The late Robert
Kendell commented that
‘a claim by the Egyptian
delegation that [cannabis] was as dangerous as opium, and should
therefore be subject to the same international controls, was supported
by several other countries. No formal evidence was produced and
conference delegates had not been briefed about cannabis.’
Australia was represented at this conference. The
Commonwealth then wrote to all of the states asking them to enact
legislation to ban Indian hemp. This is how the NSW Under Secretary
of the Colonial Secretary’s Department replied on behalf
of this state:
‘The omission of that
drug [cannabis] from the operation of the Act would have been
of small moment, but having been considered by the conference
as required to be included, it might perhaps be as well, if practicable,
to bring it within the purview of the dangerous drug laws’
This sentence explains why cannabis is still prohibited in NSW
today. On this shaky foundation, the mighty edifice of cannabis
prohibition in NSW (and other states) was built.
Cannabis prohibition costs a lot of money - no-one
knows how much we spend in NSW or Australia - in a futile attempt
to stop the law of supply and demand from operating. But we know
that it is many millions of dollars every year. We also know that
it is a very hard challenge to identify any probable or certain
benefits to the community from this considerable expenditure of
our taxes. But, worse than this, it is easy to find plenty of
good evidence that cannabis prohibition produces a lot of harm.
The best that could be said about the relative benefits and costs
of cannabis prohibition would be something similar to Emperor
Hirohito’s famous explanation of his decision to surrender
in WW II
‘the war situation has
developed not necessarily to Japan’s advantage.’
What harms does cannabis prohibition produce? The
turnover of the cannabis industry was estimated by Access Economics
in 1997 to be $5 billion in 1997, only slightly less than the
$6 billion a year turnover of tobacco. But while the cannabis
industry did not collect a cent for taxes, the tobacco industry
was and is taxed. ‘Broaden the base and lower the rate’
was one of Treasurer Peter Costello’s mantras. So the failure
to tax cannabis means that our individual, corporate and indirect
taxes are marginally higher than they would be if cannabis was
taxed and regulated like alcohol or tobacco. More serious than
this is the connection between cannabis and other illicit drug
prohibitions and official corruption, especially police corruption.
Starting with the Royal Commission into the Dockers’ Union
in the 1980s, followed by the Fitzgerald Royal Commission in Queensland,
the Wood Royal Commission in NSW and the Kennedy Royal Commission
in Western Australia, we have had four Royal Commissions in recent
decades documenting widespread police corruption linked to unsuccessful
attempts to enforce our failed and futile drug laws. Rampant police
corruption plays a major part of Underbelly, the current Channel
Nine series about a spate of murders linked to amphetamine trafficking
in Victoria. Cannabis is particularly important in terms of police
corruption because it represents about two thirds of the illicit
drug industry in financial terms. According to the WA economist,
Professor Kenneth Clements, the Australian cannabis industry is
financially twice the size of our wine industry. To paraphrase
Tony Blair, why not get ‘tough on police corruption and
tough on the causes of police corruption’?
Studies comparing the then hard-line attitude to
cannabis prohibition in WA compared to the expiation notice system
in South Australia showed that WA cannabis offenders paid a high
price in terms of loss of employment, loss of accommodation, loss
of relationships and a growing feeling of alienation from the
community without any change in their cannabis consumption. South
Australia showed that changing from a criminal to a civil penalty
system saved significant police resources. This meant that the
SA police then had more resources to follow up violent and other
serious forms of crime. This study was influential in the decision
by the WA government to adopt a cannabis expiation notice system
(despite severe criticism from the then WA Opposition). The WA
Liberals made their opposition to cannabis law reform a major
policy at the last state elections. Few attended the public rallies
they called. The issue developed no traction for them in the election
campaign. The WA Liberals were soundly defeated in the last state
elections. Cannabis prohibition was no help to them.
There are many serious inherent problems with cannabis
prohibition. Because cannabis is now distributed by Al Capone,
we cannot have any warning labels advising that cannabis may cause
physical and mental health problems, or should be avoided during
pregnancy. Yet we can do this for tobacco where warning labels
seem to have been very helpful. We cannot advertise a telephone
help line on cannabis packets for people who want to cut down,
quit or use less harmfully. In a climate of cannabis prohibition,
honest drug education is much more difficult. Instead we have
drug education which meets the needs of a middle aged elite but
is not believed by most young people. Black markets are regulated
by criminals and corrupt police. Therefore there are no controls
of THC concentration. A regulated cannabis market could ensure
that cannabis sold in Australia contained THC within a certain
concentration band.
Cannabis prohibition does not reduce consumption
but does make it more likely that the person selling cannabis
can also sell you or your loved ones heroin or amphetamine. When
identical questionnaires and methods were used to survey residents
of more liberal Amsterdam and more restrictive San Francisco,
12% of Amsterdam residents said they had smoked cannabis more
than 25 times compared to 39% in San Francisco. Just over a third
(35%) of Amsterdam residents had ever smoked cannabis compared
to 62% of San Francisco residents. Also, almost one in six (15%)
Amsterdam residents said that they could obtain other drugs (such
as heroin, cocaine or amphetamine) at their source for cannabis
while over three times as many (51%) San Francisco residents said
that these other drugs were available for sale where they bought
their cannabis from. Taxing and regulating cannabis will help
to separate this market from markets for heroin, cocaine and amphetamine.
The Present
The main difference between genius and stupidity
is that there are limits to genius. How do we explain why the
case for reform is so strong and the case for prohibition is so
weak yet the pace of reform is so glacial. We have to ask ourselves
why, if cannabis prohibition costs so much money, achieves so
little benefit but is also responsible for so much harm –
lost taxes, increased police corruption, real harm to cannabis
offenders, lost opportunities for improving the health of cannabis
users – how come it has survived so many decades? The answers
seem to me to be obvious.
First, although cannabis and other illicit drug
prohibitions attempt to defy economic gravity, they do sound intuitively
appealing to many people in the community. Political success based
on appealing to irrational fears is a lot easier than campaigns
based on hope, reason and evidence. So economics is on the side
of those of us who want to see reform of cannabis laws but politics
is against us in the short term. We are used to these battles
where the irresistible force of economics rages against the immovable
mountain of politics. In the short term, politics always wins.
In the long term, economics always achieves change. But the example
of Western Australia and many other examples show that community
attitudes to cannabis prohibition are changing. Cannabis prohibition
may have been a Viagra for aging male politicians in the past.
But the community is slowly waking up. Increasingly people regard
cannabis prohibition as a political stunt. How come every second
major politician admits to smoking cannabis in their early years
but now regards the drug as so dangerous that people who have
used the drug have to be punished?
Second, advocacy for drug law reform has generally
been poor. Rather than accept that our community is made up of
people with very different views and values, drug law reformers
tend to argue a ‘one size fits all’ approach instead
of using diffrerent kinds of arguments for different segments
of our community. Advocates for cannabis law reform often use
libertarian arguments even though few in the community care all
that much about libertarianism. We fail to listen to and analyse
our opponents’ arguments. Many advocates for cannabis law
reform seem self indulgent and simplistic. We often criticise
cannabis prohibition but rarely propose alternative models. Concerns
about possible health damage from cannabis are dismissed ritualistically.
Where is the commitment to a rigorous evidence based approach
to cannabis laws? I believe that cannabis law reformers have to
accept a large share of the responisiblity for the longevity of
cannabis prohibition.
Third, most social reforms occur slowly and incrementally.
Look at how long it has taken for homosexual law reform and equal
treatment of women to occur in the face of overwhelming arguments.
But against all this we have to remember that for
opinion has now changed among most researchers and policy makers
- when speaking in private. There are now dozens of major enquiries
from Australia and other countries which have concluded that illicit
drug prohibition does not work. Let me give you just a few examples.
“Our conclusion is that
the present law on cannabis produces more harm than it prevents.
It is very expensive of the time and resources of the criminal
justice system and especially of the police. It inevitably bears
more heavily on young people in the streets of inner cities, who
are also more likely to be from minority ethnic communities, and
as such is inimical to police-community relations. It criminalises
large numbers of otherwise law-abiding, mainly young, people to
the detriment of their futures. It has become a proxy for the
control of public order; and it inhibits accurate education about
the relative risks of different drugs including the risks of cannabis
itself. Weighing these costs against the harms of cannabis, we
are convinced that a better balance is needed and would be achieved
if our recommendations were implemented’.
Police Foundation of the United
Kingdom 2000
“[cannabis offences]
… absorbed a significant proportion of resources dedicated
to drug law enforcement. In addition, in contrast to most other
illicit drug use, there appears to be a comparatively low rate
of associated crime and harm to other individuals and the community.
The decriminalisation of personal cannabis use and production
may greatly reduce both police and legal resource expenditure”.
Australian Bureau of Criminal
Intelligence (1997)
“We have come to the
conclusion that, as a drug, [cannabis] should be regulated by
the State much as we do for wine and beer, hence our preference
for legalisation over decriminalisation”.
Senator Pierre Nolin, Chair,
Canadian Senate Special Committee on Illegal Drugs, 2002
The Future
Herbert Stein, an economist advising Richard Nixon
coined something called “Stein’s Law”. He used
to say ‘if something cannot go on forever, it will stop’.
How could we speed up cannabis law reform?
First, we must articulate a credible alternative.
It is not enough to just criticise the status quo. In my view,
taxation and regulation is the most credible alternative. The
path from criminal penalties passes inevitably through civil penalties.
But the problem with civil penalties has been that as the harms
of drug law enforcement have been reduced, more people have been
caught in the net.
Second, we have to be more strategic. This includes
developing different kinds of advocacy for different segmnets
of our community. Presenting human rights arguments to the Rupert
Murdoch’s of this world is as much a waste of everyone’s
time as presenting arguments based on cost-effectivness to civil
libertarians. Horses for courses.
Third, we must be less self indulgent. The history
of cannabis prohibition is important, but only the real history
and not some doubtful stories about Du Pont and William Randolf
Hearst.
Fourth, cannabis law reform will make much better
progress when it is based on real evidence. The possibility of
real cannabis toxicity should not be denied before the evidence
is even considered. But the question of cannabis toxicity should
be regarded for what it is – a third order question. The
first order question is ‘who is the least worst cannabis
distributor?’For me, the worst cannabis distributors are
criminals and corrupt police. The more dangerous cannabis is considered
to be, the stronger the arguments for preferring cannabis to be
taxed and regulated rather than controlled by a 21st Century Al
Capone. We should think about the costs and benefits of taxed
and regulated cannabis compared to cannabis controlled by criminals.
We also have to think of the costs of the transition.
Finally, we have to be mindful of the fears that
sustain the politics of cannabis prohibition. Unless we deal with
these fears in a credible and honest way, cannabis law reform
will not make much progress.
But if we follow these five principles, we will
see real progress. This is why I have called this talk ‘the
audacity of dope’.
My commitment professionally and personally is to
reduce both the harms from cannabis and also the harms from the
arrangements we adopt in response to cannabis. In my view, there
is also a very strong case to be made now to allow the community
to benefit from the medicinal benefits from cannabis. This is
of course not just my view but the view of many in the pharmaceutical
industry. When a UK company sought £6 million capital to
expand its research efforts to bring medicinal cannabis to market,
it was oversubscribed by about four times that. One of the prices
we pay for cannabis prohibition is that some people with nasty
symptoms from terminal conditions are denied the relief that might
be afforded from cannabis.
Cannabis law reform will be a long and difficult
battle. I have no doubt that we will win in the end. The Nimbin
Mardi Grass is important in this battle against prejudice. Just
as the Gay and Lesbian Mardi Gras is important to the battles
waged by our gay and lesbian brothers and sisters in their battle
against prejudice. But Mardi Grass actions by themselves are not
enough.
Dr. Alex Wodak,
President,
Australian Drug Law Reform Foundation
March 2008
Robert Kendell, Cannabis condemned: the proscription of Indian
hemp Addiction, 2003 98, 143–151
NSW Under-Secretary, Colonial Secretary’s
Department
From Mr. Sin to Mr. Big: A History of Australian Drug Laws
D Manderson - 1993 - Oxford University Press.
Police Foundation of the United Kingdom 2000
Drugs and the Law: Report of the Independent Inquiry into the
Misuse of Drugs Act of 1971.
Australian Bureau of Criminal Intelligence (1997)
Australian Illicit Drug Report 1996-97. Canberra, ABCI, p. 26.
Senator Pierre Nolin, Chair, Canadian Senate Special
Committee on Illegal Drugs, 2002
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