On Monday of this week I participated in a panel discussion at the annual convention of the Union of British Columbia Municipalities on cannabis legislation. The context for the discussion was a resolution put before the convention calling on governments to “decriminalize marijuana and research the regulation and taxation of marijuana.”
Three of the panelists spoke in favour of the resolution, including me. Three others spoke against it.
On Wednesday the resolution was passed by the UBCM convention delegates.
The resolution does not, of course, change the law. But it is an important step along the road of building the political momentum necessary to cause the federal government to abandon the legislated prohibition against marijuana.
Before I continue, I need to say one thing. I do not think the best next step in cannabis law reform is decriminalization. I think we should move directly to a taxation and regulation regime. Decriminalization would at least address one of the most pernicious harms in the current legislation, namely the fact that possession of 31 grams of cannabis is a crime potentially punishable by up to seven years imprisonment, a breathtakingly disproportionate response to the harm (if any) caused by carrying an ounce of crushed plant leaves around in your pocket. But decriminalization is only a halfway measure. In a decriminalized regime, organized crime will still have control over the market for cannabis; the social harms associated with organized crime’s control will continue; and so, too, will the reality that no consumer will really know whether what has been sold to them is really cannabis, or has been doctored. But although the UBCM resolution took a more cautious approach, I was delighted to be able to try to persuade the members of the UBCM to take at least this step forward.
One of the benefits of the panel discussion on Monday morning was the opportunity to hear the arguments of those who oppose reform.
I listened carefully to the presentations of the three individuals who spoke against the resolution: Daryl Plecas, a professor of criminology at University of the Fraser Valley, Dave Williams of the RCMP’s drug enforcement branch, and Commander Pat Slack of Washington State’s Snohomish County drug task force.
Commander Slack gave me my favourite moment of the morning when he argued against taxation and regulation by saying, “anything government touches gets screwed up”. I thought that was a fun argument to make in a room full of, well, er, um, government, that is, municipal councillors and mayors. Telling them they screw up everything they touch seemed a bit bold.
But more seriously, and interestingly, none of the speakers defended the status quo. I was delighted to see a consensus of panel members that the criminalization of marijuana has completely failed to achieve its stated purpose, namely to deter its use.
Now you might think an acknowledgement that the policy status quo is a failure would be a great platform for a discussion about the kind of reform that should take place, but that was unfortunately not the case.
Some of the arguments against the resolution were about whether reform would in fact lead to a reduction in gang violence, or have any of the other beneficial effects argued for by organizations like Stop the Violence and Law Enforcement Against Prohibition (LEAP). Upon reflection, it seems to me that most of these arguments – and they were not supported by any empirical evidence - are really just expressions of fear and uncertainty about change. No one contends that the legalization and taxation of marijuana would bring an end to organized crime. But it is surely a reasonable proposition that, done properly, it would reduce or even eliminate the investment of organized crime in the manufacture and distribution of marijuana. This is exactly what happened when alcohol prohibition was abandoned.
There is an enormous investment in the status quo, and that can make the project of reform a bit daunting. Cannabis criminalization has created the law enforcement equivalent of what US President Eisenhower once famously called “the military industrial complex” – in this case it is a massive criminal justice system complex, dedicated to perpetuating the notion that marijuana is an evil that can only (or most effectively) be eradicated by more and more expensive law enforcement. Even though it is perfectly clear that this expenditure has not had its desired effect.
One of the arguments I heard on Monday was made by Tom Siddon, who for many years was a BC MP and federal Cabinet Minister, and is now a local government councillor in the Okanagan. According to Province columnist Mike Smyth, Mr. Siddon said this during Wednesday’s debate (he said something similar during the Q&A session on Monday):
"We've fried enough brains already… I worry about where we are leading our nation and the values we set as elected politicians. This is not a remedy. It is going to aggravate the temptation of young people to move from marijuana ... to being hooked on heroin, cocaine and chemical designer drugs ..."
It’s wonderfully colorful language. But what does it mean? Well, first of all, if you think about it, the argument that decriminalization would aggravate the use of marijuana must assume that criminalization is an effective deterrent. But as I have already said, no one in the panel on Monday suggested this was true. The evidence is clear that prohibition has not reduced the supply of cannabis or deterred its use. If anything, it has had the opposite effect. During his remarks on Monday, Professor Plecas (who opposed the resolution) stated that 585,000 British Columbians are known to have used marijuana. That seems to me to be overwhelming evidence that prohibition has completely failed to prevent the harm which concerns Mr. Siddon.
Like Mr. Siddon, I worry about the values set by elected politicians. But I worry about them in a different way. When politicians make and defend laws that are ineffective, and indeed are repeatedly and flagrantly ignored and violated by a large section of the public, the message we send is that we should not take the law seriously. More specifically, responding to Mr. Siddon’s concern for young people, the message is that young people need not worry about respecting the law - the law, in effect, is seen as a joke. This is a profoundly problematic state of affairs for anyone who believes in the importance of the rule of law.
Equally fundamentally, however, I worry that implicit in this statement is the idea that as a society we can only discourage something by criminalizing it. This seems to me to be a complete abandonment of our role as citizens, parents, friends, neighbours and community members. Professor Plecas may be right when he says (as he did on Monday) that the use of marijuana will actually only cause real harm to a very small number of people. If so, then Mr. Siddon’s statement is empirically unsound. But it’s what that statement means for the role of the state that really concerns me. Is it really the job of government to criminalize everything that might cause harm? Of course not.
(Right now you should start making a list of all the things that are harmful and yet are not even regulated, let alone prohibited. Think of digitalis: it is toxic when consumed, and yet it is not against the law to grow foxgloves in your backyard. Ah, you say, but everyone knows digitalis is poisonous? Well, you just made my point.)
Speaking as a lawyer and former legislator, I can tell you what governments usually do when they are faced with a harm that is sufficiently serious to warrant state intervention. They decide to regulate it. And that of course is what I think ought to happen with marijuana. Regulate it and tax it. Just like alcohol and tobacco. With all the risks associated with poorly designed regulatory schemes, like the growth of underground markets when governments decide to overtax. But also with all the opportunities to inform, educate, persuade, and properly fund public health and treatment programs to prevent use, and help those who fall prey to addiction. And save the criminal law for the truly pernicious harms.
If we were starting from scratch, I have no doubt what governments would do today about marijuana – they would tax and regulate it, with the benefits and costs I have just described. They would not try to prohibit it. The lessons of our experience in this regard are clear: prohibition is a failure. In British Columbia prohibition gives control over the market in cannabis to criminals who shoot each other on our streets. No one seriously defends the status quo. Perhaps the only thing, really, that holds us back from reform is the fear of change.