After my panel interview on KNPR last week to discuss the pros and cons of legalizing marijuana, I was left with a lot of food for thought. There were some great points made by everyone involved, and I haven't thought about the issue - or the practical domestic ramifications - of such a dramatic shift in US drug policy as deeply and extensively as I have in the last week.
Then I read an intriguing Twitter post a few days ago, and my brain has been spinning ever since. Essentially, it pointed out that the United Nations requires member states to enact prohibitionist policies. So I asked myself, if this is true, why doesn't anyone mention it during debates over legalization, and how do countries like Portugal and the Netherlands get away with their liberal drug policies?
It turns out that those countries - and a few others with similar policies - have never truly legalized drugs; they have decriminalized their use. And this is where the huge amount of public misinformation and misunderstanding begins.
Many people don't understand the subtle - but distinct - legal difference between legalization and decriminalization. Legalization of a drug or several drugs means that anything associated with it - its use, possession, production, distribution, etc. - is completely legal and not subject to any criminal or civil penalty. Of course, laws can be enacted to regulate all of those things, and the breaking of those laws can draw penalties. In the example of alcohol, you can buy and consume it if you're over the age of 21, you can sell it if you have a license, and you can get arrested if you drink too much of it in public. Contrary to public perception, not one country (at least, none of the 180 signatories to the UN Single Convention on Narcotic Drugs) has fully legalized drugs.
However, there are several countries that have decriminalized the use and possession of various drugs. This means that people caught using or possessing them are either given a simple fine, the drugs are confiscated, or they're mandated to seek some sort of counseling or treatment (sometimes only after the third violation). Drug use is treated pretty much in the same way as a speeding violation. Those involved in the manufacture or distribution of drugs, however, can be prosecuted as criminals. Some of these countries include Portugal, the Netherlands, Spain, Argentina, Germany, Ecuador, Belgium, and Mexico. Yes, Mexico.
Before I get into the decriminalization loophole, I want to bring to your attention a document I just mentioned - the United Nations Single Convention on Narcotic Drugs. This is an international treaty that was created in 1961 to essentially serve as an umbrella for several different anti-drug conventions that were created several decades earlier, and was able to take into account new synthetic drugs and opioids that had come into vogue during that window. In 1972, it was supplemented by the Convention on Psychotropic Substances, which controls LSD, Ecstasy, and other psychoactive pharmaceuticals.
Knowing about the Convention is critical to understanding some of the complexities of international drug policy - specifically, why certain countries do or don't do certain things with their drug policies. The Convention prohibits the production and supply of specific (nominally narcotic) drugs and of drugs with similar effects except under license for specific purposes, such as medical treatment and research. Article 36 requires treaty parties to criminalize "cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention." It also identified/created the four schedules that we're familiar with for categorizing drugs based on their potential for addiction and medical uses.
Understanding the Convention is also important because it turns out it's the foundation for our own drug policies. Our Controlled Substances Act of 1970 and the United Kingdom's Misuse of Drugs Act 1971 were actually designed to fulfill treaty obligations. Both Acts include analogous schemes of drug scheduling, along with similar procedures for adding, removing, and transferring drugs among the schedules. The Controlled Substances Act also includes a provision mandating that federal authorities control all drugs of abuse at least as strictly as required by the Single Convention.
So how do those countries that have decriminalized drug use and possession get away with it on the international stage? Well, the Convention has a lot of loopholes. And, after all, it's the United Nations we're talking about - not exactly an authority with teeth. There has been considerable legal debate over whether or not the Convention's reference to criminalization of possession means or includes possession for personal use, or just for intent to distribute. The wording that mentions penalties and exceptions for certain countries' constitutions is necessarily vague, and treaty parties can easily find a way to decriminalize drugs - much to the UN's chagrin - through their interpretation of the Convention.
On the flip side, countries with conservative drug policies can point to the Convention as a major reason for maintaining a prohibitionist stance. After all, the US designed its own drug policy after the Convention. How would it look to the international community if the US government decided to blatantly defy the Convention by decriminalizing marijuana? I ask that rhetorically, as I've just laid out how it's not really that blatant of a rebuke. But the US is held to a different international standard than many other countries, and the UN pointing out an American refusal to stick to the Convention's principles and guidelines would go over very differently than if, say, Ghana decided to do the same thing.
So, taking all of this into account, I wonder why the drug policy reform movement isn't pursuing a decriminalization agenda rather than one for legalization. Given the legal distinction between the two, and the fact that no country has truly legalized drugs (only decriminalized them to varying extents), surely they have to know that legalization just isn't a practical goal. Decriminalization, however, is a different story. Maybe it's just easier to use the term legalization, or maybe no one wants to explain over and over the difference between the two.
I strongly suspect that the drug reform movement isn't concerned about the practicalities, given the passion of those in the movement I've come into contact with. However, I wonder why they're so vehemently pushing for all-out legalization - given the Convention's requirements for treaty parties against it - instead of the more doable decriminalization. I'll be the first to admit I don't know a ton about NORML or the drug reform movement in general, so perhaps it's a matter of principle or the group's mission not to take baby steps.
Just a few final points I want to make here. First, those of us involved in one way or another in the debate over drug policy need to be better about describing it more accurately. Drug reform advocates can't point to countries like Portugal and the Netherlands as good examples of countries that have legalized drugs, when in fact they've only decriminalized them to varying extents. Second, I think it's smarter for drug reform advocates to pursue a decriminalization agenda rather than a legalization one, if only because it's more practical and realistic in light of restrictions imposed by the Convention; not super-enforceable perhaps, but ones which the US government will likely always stick to. At least with decriminalization, there's are viable loopholes our government can exploit. And no matter how much legalization advocates may disagree with or despise the Convention, it's a UN treaty with 180 signatory nations, and it does mean something.
Third, the American public has been warming up to the concept of legalization over the last two decades, but how many of them know about the complexities of international drug policy and how that impacts what we can do to change our own policies? The American public isn't stupid. However, it's very easy to misinform people, especially on issues they may not closely follow or not feel too strongly about one way or another. A big push to educate Americans - and our own government, perhaps - about the relative ease of decriminalization compared to full legalization might make some big inroads for the drug reform movement, as well as our own understanding of how we view drug use.
You make a very interesting (and important) point about the distinction between legalization and decriminalization. Like you said, the complexities of the international drug policy are not very well understood, this is in large part because the treaty is deliberately vague and because the ‘War on Drugs’ is also deliberately vague.
The US foreign aid towards ani-nartcotics is ridiculous and almost entirely focused on a military approach, but is oblivious to other very important elements, such as fight against organized crime (i.e. money laundering) which receives less than 1% of the annual budget or institution building, which is significantly less but fortunately receiving more attention as a late. Even though, the later approaches have proven more effective and are in large part the backbone of the illicit narcotics trade. (see www.foreignassistance.gov, great new webpage).
No US politician wants to touch this subject, save the renegades like Ron Paul, because they are afraid to lose valuable support from the largely uninformed population of America regarding international drug policy. If they mention it, they will be immediately labeled and attacked by their opponents. It’s much easier to criticize a war that is killing thousands of our own citizens and wasting billions of dollars on an arguably lost-cause, than one that is killing thousands of our neighbor’s citizens to “stop the flow of drugs into the USA”, despite the fact that the two wars are completely intertwined wasting billions that could be ‘invested at home.’
The legalization/decriminalization movements needs to bring the wasteful government spending issue to the debate table if they want to get anywhere. This is what America wants to hear, more money on the home front.
However, I’m still unclear about the differences between Legalization and decriminalization you make. Alcohol is legalized, not decriminalized, and is therefore regulated, taxed, tariffed, accepted and consumed internationally. But can a decriminalized substance (i.e. marijuana and/or cocaine) be taxed, traded, tariffed, regulated, consumed and accepted internationally without a complete overhaul of the UN convention?
While decriminalizing Marijuana, and even Cocaine in the US would save a considerable amount in incarcerations and policing, the US will still be wasting billions of dollars on a war on drugs to secure it’s interests abroad which are largely connected to international drug trade revenue (i.e. oil, gold and coal in Colombia, Mexico and Afghanistan). By legalizing drugs in the US (more so cocaine and Marijuana) it will bluntly defy the UN treaty and force a reconsideration of a broken drug policy instead of continuing a tacit ignorance of an outdated international convention.
Posted by: Ryan C Lee | July 04, 2011 at 05:57 PM
@Ryan - A decriminalized substance can be taxed and regulated, and it is in the Netherlands, at the least. It's even taxed by US states where state law makes its sale for medical purposes legal (although it's still illegal by federal law, and thus not taxed at the federal level).
Posted by: Sylvia Longmire | July 04, 2011 at 07:31 PM
I definitely think that the tax ramifications of this subject will be a driver for how this plays out. Imagine that California decides to decriminalize marijuana, and to tax its sales. Sounds quite possible ... esp. given the desperate shape of California's financial position. But are these same drug sales then subject to federal taxes?? My guess is that the Feds would certainly want their share. But if the Federal Gov't has not decriminalized marijuana - then that puts them in a legal pickle :-) Legal or not legal? Taxable or not taxable? And at what level of government?? Should be interesting.
I also think that thought needs to be given to the growing of marijuana. If the drug use is decriminalized, where do we stand about growing pot? Would it be legal for households to grow half a dozen plants? Would it be legal for farms to plant ten acres of marijuana plants?? Good question. It seems silly to have a policy where the drug use is decriminalized, but growing it is still a serious offense. This goes beyond mere banter over issues. If we don't decriminalize the growing of marijuana, then presumably all the activities of the cartels will continue unabated - they will remain a major source for a demand that has been allowed by law.
It needs thinking through. It probably will evolve at the local level, such as states like California, rather than at the national level. It is likely to be a legal mess for a LONG time!
P.
Posted by: P | July 04, 2011 at 07:43 PM
I see you deleted my comment....ok, I guess you want me to say that stricter laws need to be put in place against Marijuana. Tougher prison sentences might teach those pot heads a lesson. Marijuana was created by the devil and Jesus don't like it. Pharmaceutical companies need to keep their annual profits up in the billions for FDA approved drugs that are substantially more dangerous than marijuana.
Also, the alcohol and tobacco companies need to keep their multimillion dollar annual profits up. Also, we need to keep the death toll as high as possible to enforce these prohibition laws at the expense of the tax payers.
There, does that suite your fancy better? Even though that way of thinking is extremely counter productive.
Posted by: Thompson_DT | July 05, 2011 at 07:38 AM
@Daniel - I didn't delete your comment; in fact, I never received notification of it. Can you try to resubmit?
Posted by: Sylvia Longmire | July 05, 2011 at 07:49 AM
1) "Decriminalization" of marijuana is what we generally call a relaxed policy towards possession of small amounts of pot. It does not change the laws in ANY WAY with regard to manufacture or sales. It's really not a significant policy change. It's just more of the same. It doesn't stop the SWAT teams and their no-knock raids murdering citizens, it doesn't stop cops from stealing property from citizens without ever charging them with a crime(civil forfeiture is a major related issue in the Drug War), and most importantly, IT DOES NOT DO ANYTHING TO HALT THE BLACK MARKET. Everyone who wants pot will still be purchasing it illegally.
2) When a country doesn't want to be part of a UN treaty anymore, they withdraw from it. Bolivia withdrew from the UN Single Convention last week. Drug Warriors want us to think that it's impossible to ever contravene the UN Single Convention, but when it suits their purposes in other political arguments, they'd be happy to thumb their noses at the UN.
3) The USA basically invented and exported the idea of virulent international prohibitionist policies. It will take the USA's opposition to end this ill-conceived and destructive war on civil liberties. Now is the time to start repairing the damage that has been done.
Posted by: Ben | July 05, 2011 at 09:51 AM
"United Nations requires member states to enact prohibitionist policies."
So you are saying that a foreign entity has required us to enact laws that violate our federal constitution? "Regulate interstate commerce" means to "make regular" or establish a fair and free trade zone between the states. If the hippies can put down the bong they should be getting rid of the federal drug laws based on the fact that the federal government has not authority to ban these substances. That power only resides with the state and local governments if their constitutions gives them that power.
There is a reason that the first federal drug laws appeared in 1914 (Harrison Narcotics Tax Act) and not earlier. That is when the progressives (Christian based at the time; alcohol prohibition what a progressive Christian movement) began to circumvent the enumerated power in the constitution. It is interesting to note that the Harrison Act only required opium sellers to be licensed, similar to how our federal gun laws require licenses (FFL) for sellers. It is also interesting to note that these early laws were very racially based due to the fact that early progressives (T. Roosevelt, W. Wilson, Margaret Sanger,) were rabid racists and eugenicists.
A house built on a contradictory foundation will never stand.
The sooner the hippies and liberals begin to support constitutional principles, the sooner they can light up legally (if their state allows it), the sooner I won't be held responsible for their screwed up lives (e.g. medicaid), and the sooner the cartels can begin to focus on the more lucrative business of kidnapping and extortion of US citizens.
Posted by: anonymous_hero | July 05, 2011 at 06:19 PM
@ Sylvia
as Ben has pointed out, Bolivia has just withdrawn from the 1961 UN Single Convention on Narcotics...
portraying this as a question of legal niceties and legal necessities is a big mistake...
going beyond the Conventions is in fact nothing more than a question of political will, just as the abolition of slavery was
America can find that will, but only as long as it continues, as it is now, to wake up to the costs of prohibition - the financial costs, the costs to individual liberty, and the terrible human costs...
the distinction between decriminalization of personal cultivation and decriminalization of possession is very important, and I didn't feel you were clear on this
just last week, the Italian supreme court decriminalized personal cultivation of cannabis. This is in marked contrast, for example, to the proposals before the New Jersey legislature right now which would, if they passed, only decriminalize personal possession of cannabis...
by enabling cannabis users to cultivate small amounts of cannabis for their own use, the Italian laws have now made the essential step of cutting the link between the cannabis market and organised crime - and this is the heart of the matter
if a parallel change was made in the US and personal cultivation of cannabis was decriminalized at a federal level, the savings in human life not just outside the US, but inside too, would be of the order of tens of thousands a year
how? well, Jeffrey Miron, a Professor of Economics at Harvard, estimates that around 60% of the Mexican cartels' income comes from cannabis. In the four years up to Jan 2011 some 34,612 Mexicans lost their lives in the drugs wars, most in gang competition over supply routes to the US. The eminent economist Milton Friedman estimated that some 10,000 Americans each year die as an indirect consequence of prohibition, again in gang violence...
that cost in human life, those tens of thousands of deaths a year in the Americas, can be avoided by enabling US citizens to meet their own cannabis needs
there are a large variety of policy options: whether a fully normalised legal market, or through some form of decriminalization, Nanny State control of supply (as proposed in France this week)... or the decentralized Spanish cannabis club system, as an example of a decriminalized not-for-profit option
all offer a way out of the drug war drain on the economy, all offer a way out of the endless futile cycle of murder and mass incarceration - the deaths in Mexico and the US alone amount an ongoing tragedy equivalent to several 9/11s a year... the public need to understand this
the essential point here is that prohibition is a humanitarian catastrophe - morally indefensible, practically counterproductive - and there are many options on the table for bringing that to an end; as they say - "where there is a will, there is a way"
Posted by: Angus | July 06, 2011 at 12:00 AM
Why does society deplore Big Tobacco but yet assume that a legalized/decrim. marijuana market would behave any differently or benevolently?
I hope that all the Libertarians who agitate for legalization of drugs first examine the historical example of unfettered Libetarian ideals in practice. Why did those societies collapse? Perhaps seeing the utter failure of these societies influenced drug laws?
"Those who do cannot remember the past are condemned to repeat it." George Santayana
Posted by: Beltonwall | July 06, 2011 at 12:10 AM
"Why does society deplore Big Tobacco but yet assume that a legalized/decrim. marijuana market would behave any differently or benevolently?"
"Four legs good, two legs bad!"
Posted by: anonymous_hero | July 06, 2011 at 12:22 PM