Drugs on Ballot

On November 3rd, many states in the US voted in favour of decriminalising drugs. Arizona, Montana, New Jersey, and South Dakota voted to decriminalize recreational marijuana. Meanwhile, in Mississippi and South Dakota, medical marijuana will be legalized. In Washington DC, voters voted to decriminalize psilocybin, the organic compound active in psychedelic mushrooms.

Voters in Oregon voted for the most drastic change whereby, all illegal drugs – including heroin, cocaine and methamphetamines – will be decriminalized, meanwhile psilocybin, or psychoactive mushrooms, will be legalized for therapeutic use. The initiative in Oregon places the emphasis on treating addiction as a health issue rather than that of law and order. Those found in possession of drugs, instead of a trial, will have the option to either pay $100 fine or sign up for addiction services. These measures, however, do not make it legal to sell drugs such as heroin, cocaine, etc legally.

Arizona legalised possession of up to an ounce (28.35 grams) of marijuana for adults. The successful measures also set up a licensing system for retail sales, which can start in March 2021. The newly approved laws also allow people with marijuana related convictions to petition courts to have their records cleared.

Montana’s measure calls for sales to begin in January 2022.

South Dakota voters approved proposals to legalize both medical and recreational marijuana, a major shift after the state overwhelmingly rejected a medical pot measure four years ago.

The newly approved measures in New Jersey put New Jersey on the path to have the largest weed market on American east coast and one of the largest in the US. The state has to first establish the rules for the businesses, so it is unclear when the industry will start. The voter approval in New Jersey also puts pressure on neighbouring states, particularly New York, to follow the suit.

Advocates of legalisation of cannabis in the US hope that these changes will reduce overdose deaths, reduce racial disparities in drug sentencing and arrests and improve services for drug users. The Drug Policy Alliance, which drafted and funded the measures in Oregon, say that $100m could be saved per year through its Measure 110, in law enforcement savings (from reduced arrests and incarceration) and increased tax revenue from drugs sales. That money will be funnelled towards treatment and social services for drug users – such as addiction recovery centres, housing, and healthcare.

Many are hopeful that these new measures will address the consequence of the war on drugs, started by President Nixon and popularised by President Regan and the ex-first lady Nancy Regan, which has disproportionately targeted Black, Brown and Hispanic communities. The advocates believe that the imprisonment, federal mandatory minimum sentences and prohibitive cash bail for drug charges have ruined lives and communities, particularly those of Black Americans.

The public view of marijuana has drastically changed since the war on drugs was started in the US. In 1969, two years before the dawn of the drug war, 84 percent of Americans thought marijuana should be illegal, according to the Pew Research Centre. By 2019, according to Pew, 91 percent of Americans supported the legalization of marijuana, either for both medical and recreational use or solely for medical use. Advocates say that over the years the effects of cannabis has grown less severe in the eyes of the public after witnessing the effects of crack and the opiod crisis and thus leading to legalisation in some states.

Even through the public opinion has changed, the American law enforcement still polices possession of drugs, particularly, by Black people aggressively. According to American Civil Liberties Union (ACLU) Black Americans are 3.5 times more likely to be arrested for marijuana than white Americans. The law enforcement’s aggressive policing of drug possession is also responsible for the stead rise in incarceration. As of March 2020, 20 percent of the more than two million incarcerated people in the United States were imprisoned because of drug offenses.

The war on drugs drastically failed to achieve its goal. After almost half a century of global prohibition drugs are cheaper, more available and widely used than ever before. It is an industry of over $300bn (£190bn) a year – growing every year – mainly run by organised criminals and unregulated dealers, which has created vast costs for those least able to bear them and, fuelled crime, corruption and conflict.

Other countries have also recently reformed their drug legislation, particularly in relation to cannabis.

Uruguay legalised recreational use of cannabis in 2013, making it the first country in modern era to legalise cannabis. The second country to do so is Canada.

In 2018, medical use of cannabis was legalised in the UK. In Spain, consumption of marijuana in private spaces is legal but commercial sale remains illegal. Medicinal use of cannabis is legal in German. Recreational use remains illegal in Germany, but the law enforcement does not prosecute for possession of small amounts of cannabis (the definition of small amount various throughout the country) unless it is a matter of public health.

In Netherland, personal use is not a criminal offence, but smoking cannabis is public is technically illegal. ‘Coffee shops’ in Netherland are technically illegal but are tolerated by the government as long as they sell no more than 5g per transaction and only keep 500g in stick at any time.

Certain medicinal uses are legal in France and sale of cannabis with a maximum of 0.2 percent THC (Tetrahydrocannabinol) is legal.

Advocates for legalisation believe that legalising drugs would eliminate or significantly reduce the black market and criminal drug trade. They believe that the birth of the violent industry of criminal drug trade is a direct consequence of prohibition of drugs.

The advocates argue that the governments can accrue taxation revenue from illegal drugs as they currently do from gambling, alcohol and tobacco. They believe that if one is not harming anyone else, the government has no right to restrict what consenting adults do in their personal lives. It is the right of every individual to decide whether to take drugs. The taking of drugs is a “victimless crime” where only the user is taking any risk.

An alternative to legalisation is decriminalisation. Experts don’t agree on the terminology but, in essence, decriminalisation refers to a reduction of legal penalties. This can be done either by changing them to civil penalties, such as fines, or by diverting drug use offenders away from a criminal conviction and into education or treatment. It largely applies to possession offences and not sale or supply. This argument focuses on drug users rather than suppliers. Decriminalisation has the potential to reduce the burden on police and the criminal justice system.

The moral argument against legalisation suggests the use of illegal drugs is amoral, anti-social and otherwise not acceptable in today’s society.

Those opposed to legalisation argue that legalising drugs could result in significant increase in drug use and public nuisance and, create an extensive economic burden on the healthcare system as alcoholism and use of tobacco does. Over 8,400 people died in Europe in 2015 of drug overdoses. They believe that egalising harder drugs like heroin would only lead to more addiction and more deaths. Even if the hardest drugs remained illegal, softer drugs would only act as a gateway to more dangerous substances. Moreover, the opponents are not entirely confident that legalisation or decriminalisation will necessarily affect the black market. Even if the Government taxed a legalised drugs market heavily, drug gangs could still operate. This could involve producing or smuggling the substances and selling to consumers at lower prices or selling stronger versions.

However, in Australia, there hasn’t been a rise in cannabis use rates despite states and territories introducing civil penalties for users. And research on diverting drug use offenders away from a criminal conviction and into treatment has shown that these individuals are just as likely to succeed in treatment as those who attend voluntarily. The research has also noted a negative side effect to the way in which decriminalisation currently operates in Australia whereby more people are swept up into the criminal justice system than would have occurred otherwise under full prohibition because discretion by police is less likely and/or they do not fulfil their obligation.

The opponents are also worried that as most countries criminalise use and possession of drugs, legalisation can attract drug tourists to their countries. This can be beneficial in purely economic terms but could also increase problematic behaviour in public.

by Swarnim Agrahari

Addiction is a chronic, relapsing brain disease, and the path to recovery for someone who is addicted is often a long and difficult one. If you or someone you know is suffering from addiction, you can get more information on how to get help in the UK on the NHS website (https://www.nhs.uk/live-well/healthy-body/drug-addiction-getting-help/). You can find your nearest drug addiction support services in the UK on the following website - https://www.nhs.uk/Service-Search/other-services/Drug%20addiction%20support/LocationSearch/339

The Corporate Law Journal18 November 2020Comment