Cannabis legalization – what possible?

The legalization of cannabis in Canada has been a contentious issue for some time.  With growing numbers of individuals accepting cannabis for medicinal purposes and as an alternative to alcohol for recreational use, renewed discussion has taken place regarding its legal status.  This paper will examine several aspects of the marijuana legalization debate through the lens of cannabis use for non-medical purposes. It will begin with a brief examination of the three alternatives currently being discussed; maintaining current laws, decriminalization, or legalization.  The paper will then take an in-depth look at an alternative strategy that has been used in the past, nullification of criminal cases regarding cannabis.

While the use of marijuana in Canada is widely accepted, the laws of the country have not changed as much as public opinion.  In Ontario, significant changes in the law have occurred with regard to Superior and appellate courts.  However, this trend has not been reflected uniformly on a national scale.  Federal laws still currently prohibit marijuana possession except for medical purposes, and law enforcement continues to pursue criminal charges for cannabis use and possession.  Proponents of maintaining the status quo of cannabis regulations argue that any form of change to the current status of drug laws will increase drug use (Osborne & Fogel, 2004, p. 541).  Plus, marijuana is a gateway drug to the use of harder and more dangerous substances.  Thus it is important to maintain stiff penalties for marijuana possession for non-medical purposes (Martel, 2006, p. 47).

Arguments have been made that decriminalization should occur for cannabis.  This would essentially make marijuana crimes only punishable by other words use and possession of minimal amounts of cannabis would remain illegal, but prison sentences and criminal records would be substituted with fines.  Proponents of decriminalization argue that the country’s fiscal resources are being wasted on law-enforcement efforts to capture and prosecute users of minimal amounts of cannabis.  Decriminalizing it would reduce the current harsh criminal penalties, increase revenue for local and regional governments through the collection of fines, and not cause criminal record issues for those convicted of possession of small amounts of the substance (Carstairs, 2006, p. 32).

 As with decriminalization, many proponents of changing the cannabis laws see legalization as the best avenue to proceed to.  Perhaps the strongest arguments for legalization are the revenue streams that it may provide the government.  Canada’s government already produces one strand of marijuana for consumption by medical users.  Legalizing the drug for non-medical users would likely create additional sales and tax revenue for Canada’s government (Fischer & Ala-Leppilamp, 2003, p. 269).    

Because of the wide assortment of opinions on marijuana use, and the varying enforcement powers of both the provinces and federal government, another alternative may be available to communities where cannabis use is widely supported.  In Canadian law a process known as nullification exists.  A jury may nullify a law if they wish to based on a shared belief that the law itself is not valid. Many of the precedents for nullification date back to the time when Henry Morgentaler was acquitted by several juries for performing abortions.  These abortions were illegal at the time.  However, they were widely accepted by the community. So juries used their right to nullify the law and acquitted  Morgentaler despite the law.  Drug laws, particularly those effecting marijuana have created a similar challenging ethical dilemma within the legal system because citizens in many local communities do not agree with the prosecution and imprisonment of cannabis users or their suppliers.  The main unease is determining how much public good is actually served by the prosecution and imprisonment of persons stricken with debilitating illnesses or their suppliers of cannabis (Joffe & Yancy, 2004, p. 633). 

Thus some advocates have called on juries to acquit defendants who use marijuana for reasons despite their guilt -- basically, to ‘nullify’ the law.  Nullification occurs when jurors believe a defendant is guilty of a crime, but disagree with the underlying law and feel it contrary to their inner sense of justice, they may then vote their conscious and acquit.  These social critiques have played a valuable role in protecting the public from unjust laws.  Thus when jurors believe the underlying law to be the problematic issue, and not its application, then nullification may be an appropriate course of action.  This is especially true where voters of local communities have approved an action in the form of state referendums and by legislative means.

Jury nullification has a long history in Canadian courts and while not always an appropriate cure, may be suitable in many cases, especially ones dealing with marijuana users.  The reasons, explained below, are numerous and include among other things the severity of the conditions of the patients, the fact that it is a nullification of the law, and not the enforcement of the law and because many communities have approved of cannabis use through their own democratic processes. 

Some commentators have offered nullification as a means to exact social change.  In the U.S., law professor Paul Butler has recently proposed that juries nullify nearly all non-violent criminal activity committed by black defendants as a way to address the growing disparity of race in the nation’s prison system.  The U.S. has surpassed Russia to become the current world leader in the rate of incarceration at 714 people per every 100,000 individuals. A large percentage of African-Americans are incarcerated as the result of drug offenses. “Although Black people constitute only 13% of the United States population, they accounted for 21% of the drug possession arrests nationally in 1980 and 33% of such arrests in 1995.” To put this statistic another way, African-Americans, comprising only 13% of the total population, somehow comprise 74% of the people incarcerated for drug use. “The war “on drugs” is a war mainly on African-Americans.”  Professor Butler argues that “The system is discriminatory, in part, because of the disparate impact law enforcement has on the black community.” (Butler, 1996, p. 45)

Margaret Finzen also states that “Due to concerted policing and prosecution practices, Black people continue to be imprisoned in numbers far out of proportion to their smaller percentage of the population.”  Opponents of this view argue that the high rates of incarceration of African-American males is not the result of policing and enforcement practices, but due to the fact that black persons simply commit more crimes than other races relative to their percentage of the total population (Finzen, 2005, p. 300).

      Another potential counterargument is that the cost of releasing non-violent “criminals” back into society without “punishing” them will be economically unjust. However, as the prison system is currently constituted, with no focus on rehabilitation, persons released from prison can be assumed to be more dangerous when they get out than when they went in. The burden of paying for the prison housing also falls on the taxpayer.  Many argue that from an economic perspective to incarcerate non-violent offenders, rather than seek some form of alternative solution, is to waste money.  Not only does the taxpayer have to absorb the cost of security of the prison, but the taxpayer must cover the bread budget, the landscaping budget, the toilet paper budget, on ad infinitum. To house non-violent offenders, in a jail or a prison, particularly those who have committed victimless crimes, is an economic waste.  According to Butler, until the laws are changed to reflect some kind of sanity and equality, citizens should be urged to take matters into their own hands by engaging in jury nullification (Butler, 1996, p. 63).

While nullification in this situation is compelling due to the overwhelming disparity of black prisoners, it is not necessarily the same use of nullification that has traditionally been used.  Nullification in this instance is being proposed as a way to deal with unjust enforcement of the laws against black men.  However, the vast majority of the general public support the underlying laws being enforced, such as narcotics trafficking, even if they may disagree with the law’s enforcement against a sub-population; black men.  Thus nullification is being encouraged as a social critique of the laws enforcement and not the law itself.  Some would say that this is not the proper use of nullification because these are primarily administration issues and should be dealt with politically within enforcement agencies.  Furthermore, a general societal knowledge that juries would nullify non-violent black criminals may create a perpetuation of a criminal society where black men choosing to conduct non-violent criminal activity would know they could likely “get away” with the crime going into it.  This would push more black men towards criminal activity and have a net negative effect on communities.  Thus there would be no incentive to push black males from dealing drugs.    

However, nullification in the context of marijuana cases follows a different path.  Here, nullification involves the social critique of a law many members of local communities disagree with.  This is a far different scenario than nullification of defendants who have committed significant crimes such as murder and the dealing of narcotics that generally most members of society condone to begin with.  Unlike the conditions presented by Professor Butler, the repercussions of nullifying medicinal marijuana cases do not carry the severe secondary effects of allowing individuals to commit violent crimes and go unpunished. 

Some argue that nullification of marijuana cases is anti-democratic.  The legislature is a more accurate and appropriate place to establish law.  Legislatures have access to more information and better resources to faithfully implement sound laws.  The legislature is in a much better position to determine what the law should be and it is not up to the jury to act as a “mini-legislature”.  Nullification also presents a danger of having citizens disregard the law.  A valid critique of that argument though is that the majority of people in Canada actually have very little idea of how laws are enacted or the politics behind the creation of many laws.  In the case of marijuana, societal biases have grown up around the use of marijuana in general.  Furthermore, many states approved of marijuana use for medicinal purposes either through legislative means or by popular referendum.  Thus juries are only choosing to act out against the imposition of unwanted federal law against local communities. 

     Of the alternatives mentioned, each has a certain number of benefits and challenges.  It would seem however that as attitudes change towards the legalization of marijuana, an incremental approach may work best.  Thus it would seem that the decriminalization of cannabis for non-medical users would be the right approach for regional and federal officials to take.  Until this takes place it seems completely appropriate for juries to nullify cases of cannabis use and distribution where they feel the law is unjust.   

   

References

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(NORML): http://www.norml.org/index.cfm?Group_ID=3391

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