CANNABIS POLICY: MOVING BEYOND STALEMATE

Abstract

CANNABIS POLICY: MOVING BEYOND STALEMATE . ROBIN ROOM, BENEDIKT FISCHER, WAYNE HALL, SIMON LENTON & PETER REUTER . New York : The Beckley Foundation Press in collaboration with Oxford University Press Inc. , 2010 , 256 pp, £29.95, ISBN-10 : 0 19 958148 7 , ISBN-13 : 978 0 19 958148 1 This slender and well-researched volume starts from the widely shared perception that cannabis policy has long-standing anomalous features. Its goal is to review the evidence about cannabis harms, about the efficacy of restrictive policies in controlling those harms, and about the harms associated with those policies (including both the damage associated with illicit commerce and the damage associated with law enforcement). On that basis, the authors attempt to construct a range of possible alternative policies and a pathway towards their adoption. It would be hard to imagine a stronger team to undertake this task than that assembled by the Beckley Foundation, and the praise for their product offered by Thomas Schelling in the Foreword is fully justified. Cannabis is an outlier among currently illicit substances in both in the breadth of its market and the modesty of the health and social damage it causes. Cannabis policies have been widely relaxed. Use of the drug has been decriminalized to various extents, often de facto and sometimes de jure as well. In some jurisdictions there is no, or minimal, enforcement against small-scale sales. More recently, there has emerged toleration of production and sale for medical (and quasi-medical, and even pseudo-medical) use. Yet the drug remains at least nominally banned for non-medical use world-wide. Nor is the ban entirely nominal. In all developed countries the level of enforcement against production and sale is sufficient to make cannabis quite expensive on a unit–weight basis, albeit not very expensive on a per-hour-intoxicated basis. In the United States, the illicit market (and quasi-medical market) price is several times the estimated price of the drug were it legal. (Kilmer et al. estimate that high-potency cannabis that now retails for $300/ounce could be profitably produced and sold, even using relatively inefficient small-scale indoor growing, for about $40/ounce plus tax [1]). Cannabis supports a quite substantial illicit market: smaller in revenue terms than either cocaine or the illicit opiates, but in the low tens of billions of dollars world-wide. The cannabis markets tend to be less violent and to attract less vigorous enforcement and less drastic penalties than other illicit drug markets; but they continue to cause the social harms inseparable from large-scale illicit commerce, and the enforcement effort generates both costs to public budgets and harms to dealers and users. In the United States, there are more arrests for cannabis possession than for all other crimes relating to illicit drugs (although fewer than for alcohol offenses), and cannabis-related searches of individuals, vehicles and premises are common. Violating the cannabis laws is also the sole form of habitual lawbreaking for large numbers of otherwise law-abiding people. Damage to physical and mental health, although relatively low per dose, is magnified by the large number of users, and especially of heavy users. The numbers of cannabis users ‘in need of treatment’ by clinical standards, and of those actually entering treatment, rank high compared to other illicit drugs, although far lower than for alcohol. Early initiation of use—an identified risk factor for various forms of damage—is a widespread concern, with the median age of initiation in some countries hovering around 16 years. The potency of cannabis in terms of tetrahydrocannabinol (THC) content has been rising, along with the ratio of THC to cannabidiol; the book reviews the substantial, although not overwhelming, evidence that both trends tend to make the drug more dangerous. As a set of policy outcomes all this seems not very satisfactory, and the ‘stalemate’ of the title reflects the authors' impatience with lack of movement toward policies that might have better outcomes. A full analysis of cannabis policy would work forward from (i) formal policies embodied in statutes, regulations and the budgets and administrative rules of public agencies, to (ii) policies-in-practice (e.g. of enforcement) carried out by officials, to (iii) conditions influencing cannabis use (such as price, availability, legal risks faced by users and attitudes), to (iv) use itself, to (v) harms associated with use (vi), harms associated with illicit commerce and (vii) to harms associated with enforcement, including both budget costs and the damage resulting from punishment. On that basis it would be possible to choose, from among alternative sets of formal policies, that policy with the most attractive balance of benefits and harms. Then it would be necessary to work backwards from the identified optimal set of formal policies to the actions necessary to bring about their adoption. That is more or less the strategy of this book. No part of it is without difficulty. There is evidence, for example, that relaxation in formal policies towards cannabis users—notably decriminalization of possession—tend to have little or no measurable impact on measures of use-related harm. However, that is partly because of the rather loose coupling between changes in formal policy and changes in policy-in-action. Formal decriminalization often follows, rather than presaging, decriminalization in practice, and reducing sanctions may even, perversely, lead to increases in enforcement levels. Therefore, whether cutting back on user-orientated enforcement is truly a ‘free lunch’—a step that reduces the costs of control without increasing the costs of abuse—remains unclear. The literature concerning the step from use to use-related harm is copious, but its results are not generally presented in the format that would be most useful to policy-makers. For policy purposes, what we want to know about (for example) cannabis and schizophrenia is how many additional cases (if any) would be caused by a doubling in the number of users, or the number of heavy users, or the number of users or heavy users aged under 15 years, brought about by a particular policy change; but medical research is aimed at different questions. Some of the studies reviewed in the book fail to distinguish between use and heavy use. Few, if any, give comparisons with alcohol as a benchmark of policy (as opposed to statistical) significance. (A curious omission, both from the discussion and from the list of future research topics, is the effect of cannabis availability and price on the consumption of alcohol.) The authors point out the natural tension between relaxing policy towards use and maintaining the ban on production, symbolized by the Dutch ‘coffee shops’, which are said to have ‘legal front doors’ (through which the customers enter) but ‘illegal back doors’ (through which the product enters). ‘Moving beyond stalemate’, in this view, would involve the creation of some system of licit availability, although Room et al. make it clear how complex the design of such a system would be. From this standpoint, the existing international treaty regime and the agencies associated with it (notably the International Narcotics Control Board) emerge as key barriers to be surmounted or worked around. The proposed ‘framework convention’ on cannabis control contemplates, as one option available to its signatories, a full commercial market, with for-profit growers, wholesalers and retailers. This is to be modified strongly by an absolute ban on marketing, or as close to an absolute ban as the constitutional and legal frameworks of the signatories will allow (although, given the doctrines of ‘commercial free speech’ as enunciated by the US Supreme Court, that might not prove to be very close in the American setting). That framework in effect poses, as the alternative to policy stalemate, a very substantial victory for the opponents of the existing prohibition regime, the advocates of ‘legalization’ or ‘drug policy reform’. That might, in fact, be the best outcome. However, although Room and his colleagues are right to point to the lack of compelling evidence that some non-prohibition regime would lead to large-scale and costly increases in use and use-related harms, the contrary is also true: in the absence of a working model, existing knowledge is not sufficient to support a confident claim that Regime X applied in Country Y would substantially eliminate the illicit cannabis market with no more than a Z% increase in the number of dependent users. Moreover, while it is possible to imagine very tight controls—either government monopolies attempting to minimize harm rather than to maximize sales, or a strictly-regulated and highly taxed commercial industry supplying cannabis—imagining such a thing is not the same as constructing it, or making it stable over time. If cannabis were to be made an item of commerce, even under tight regulations and high taxes, the resulting industry would have a strong economic interest in loosening the regulations and lowering the taxes. It would be only natural for that interest to find political expression, in the form of both lobbying activity and the financial support of political campaigns. If the result of that process were a market resembling the current markets in alcohol, then very large increases in the number of problem users could not be ruled out as a possible—I would say a probable—consequence. In that case, the extent of the health and psychological damage from heavy cannabis use becomes a central, rather than a peripheral, question. So, too, does the relationship of complementarity or substitution that would subsist between cannabis and alcohol under conditions where both were fully commercialized. If the two products were strong substitutes in the economic sense—if increased availability and lower price for cannabis caused substantially decreased consumption of alcohol, especially among heavy drinkers—then the case for full cannabis legalization would be nearly overwhelming; according to the evidence presented in the book, the damage from heavy drinking is much more substantial than the damage from even heavy cannabis use. However, if the cross-elasticity of demand were positive—if cannabis use tended to increase alcohol use—then we would have to add the damage from more heavy drinking to the damage from more heavy pot-smoking and weigh the sum in the balance against the reduced damage from the illicit cannabis market and from enforcement against that market. Alas, the evidence about the cannabis-alcohol relationship does not point strongly in either direction; even if it did, evidence about relatively small changes in cannabis price and availability might or might not be a good guide to the consequences of very large changes, especially accompanied by the changes in attitudes likely to accompany legalization. Thus, even someone who accepted all the evidence offered by Room et al. might still approach the prospect of the legalization of cannabis on commercial lines with great trepidation. The probable irreversibility of the step would increase that trepidation. If there were a great post-legalization increase in cannabis use and harm, leading to a proposal to reinstate a ban on the drug, that proposal would confront the prospect of a greatly increased illicit market, making re-prohibition even more costly than the existing prohibition. The impacts of commercialization might not be confined to the states that chose such a policy. Although the framework convention would require a prohibition on unlicensed exports, the smuggling problem might make it nearly impossible to maintain high prices (e.g. near current illicit-market prices) in one country if a neighboring country allowed sales at nearer free-market prices, which might be lower by an order of magnitude. An alternative view of ‘moving beyond stalemate’ would require finding a system of legal availability less prone than commercialization to lead to massive increases in volume. The authors mention that, in Spain, groups of users band together in ‘cannabis social clubs’ that hire professional growers of cannabis for distribution to the membership. (A similar system funds some organic food production in the United States.) That system would seem to combine reasonable convenience for users with robust protection for public health, but the club-production option is not considered when the authors turn to making policy recommendations. Legalization without commercialization is a policy remote from both current practice and most of the current debate. It lacks the fiscal sweetener in the form of (real or imagined) tax revenue that helped to drive the repeal of alcohol prohibition and continues to foster the continued legalization of organized gambling so it may be, in terms of practical politics, a non-starter. Nevertheless, the non-commercial approach offers, at least in concept, considerable advantages compared either to the status quo or to the multiplication of heavy cannabis use that could easily result from a commercial market. A still different approach would be state-monopoly distribution, at prices sufficiently lower than current illicit-market prices to divert most demand from illicit to licit channels but not nearly as low as the probable free-market price. This option, too, is mentioned by the authors, and there is nothing in the proposed framework convention that would exclude such a policy, but its results would be expected to differ dramatically from outright commercial legalization. As noted, a high-price, state-monopoly system might not be sustainable in one country if a neighboring country chose full commercialization and a lower price. Room and his colleagues have provided a substantial public service; any discussion of cannabis policy in the near future will have to start with the facts and reasoning in this book. Nonetheless, it is possible to doubt that the authors have really found a path beyond stalemate. Cannabis policy is a hard problem, not an easy one.