Recently The BFD published an article in three parts by James Farmer QC titled “Cannabis Legal Reform – Arguments for and Against”. The following is my reply.
I have consistently believed that cannabis is a harmful substance and that people who use it for “recreational purposes” would be more sensible to choose a healthy form of recreation that doesn’t put them and those dependent on them, i.e. their children and future children, at risk of harm.
I would rather have a cup of coffee than a joint and in my personal view cannabis is way overrated by people who use it. But the fact that recreational use of cannabis may not be “sensible” does not justify it being illegal.
A disappointing feature of the forthcoming cannabis reform referendum (apart from the fact that it’s being held at all) is that it is the consequence of a political deal between the Labour and Green Parties. Another feature of dubious morality is that it is being promoted as a measure that will generate tax revenues that can be used, as the proposed Cannabis Legislation and Control Bill says, “to reduce the harms associated with cannabis use experienced by individual, families, whanau, and communities in New Zealand”.
Yes, it is disappointing we are having a referendum instead of the normal legislative change process as drug policy is complicated and the public it seems are particularly vulnerable to fear, uncertainty and doubt, aka F.U.D.
As for generating tax revenues, agreed, it is a dubious argument and one I’ve never bought into.
Assuming the Bill is successful in achieving its objectives of eliminating the (non-tax-paying) black market – as to which, see below – and that legal cannabis becomes more readily available, the happy equilibrium will be attained of greater access to cannabis, more people using it, more people affected by its harmful effects and more public money to address those effects.
While that it is interesting argument it has yet to be played out that way anywhere cannabis has been legalised. Neither Canada or the US had seen any significant increase in use.
With the referendum now only weeks away, it is a useful time to collect together the arguments for legalization and test their soundness. The arguments, as they appear to be, are:
(1) Cannabis is no more harmful than alcohol and it is legal to consume alcohol and so it should be too for cannabis.
(2) Medicinal cannabis is now legal and cannabis for recreational use should be also.
(3) The legalisation of cannabis will decrease any harm to users because its production, supply, strength and price will be regulated.
(4) Legalisation of cannabis supply and use will eliminate the black market.
(5) It is wrong that people who use cannabis should be convicted under the criminal law.
My analysis, by reference to research, written expert and professional opinion, and plain logic suggests that there are flaws with each of these propositions. My conclusion is that, properly used, the amendment that was made to the Misuse of Drugs Act 1975 last year that gives Police discretion not to prosecute where a health-centred or therapeutic approach can be achieved is more likely to achieve the proposed Bill’s objective of reducing harm from cannabis use than wholesale legalisation of the use of the drug.
The problem here is that the amendment is not being “properly used”. The police have just interpreted it as “hey boys, just confirming you have a discretion when arresting stoners” and never got the memo about the “in the public interest” bit.
CANNABIS IS NO MORE HARMFUL THAN ALCOHOL AND IT IS LEGAL TO CONSUME ALCOHOL AND SO IT SHOULD BE TOO FOR CANNABIS
In a recent article (3 August 2020) in The NZ Herald, Professor Mary Cannon, Professor of Psychiatric Epidemiology and Youth Mental Health at the Royal College of Surgeons in Ireland, described this proposition as spurious and along the lines of “Would you rather be eaten by a lion or a bear or run over by a truck or a bus?” She went on to make the point that, while there is a rare condition known as alcohol hallucinosis which can cause hallucinations and paranoia in heavy life-time alcohol users suffering an alcohol withdrawal reaction, this is not a psychotic disorder. By contrast, based on extensive medical research, cannabis “is strongly associated with psychotic symptoms and psychotic disorders such schizophrenia”. She continued: “In fact, cannabis use is now the most powerful single environmental risk factor for psychotic disorder.” She has also referred (in a separate Irish Times article cited below) to a statement by Dr Brendan Kelly, Professor of Psychiatry at Trinity College Dublin, that: “It is now exceedingly rare to meet a man with new-onset schizophrenia or a related disorder who was not smoking cannabis before he experienced symptoms”.
With all due respect to Professor Mary Cannon it is not a spurious argument and her analogy is wrong. A better analogy would be “Would you rather be eaten by a lion or a bear or run over by a bicycle?” with cannabis being the bicycle. Further, places where cannabis has been legalised have seen a dramatic drop in harm caused by alcohol, including alcohol – related domestic violence. Maybe Professor Cannon would like to explain why legalising something that is far less likely to cause violence than alcohol, a legal drug, is somehow a “bad thing”.
As Jordan Peterson said, if alcohol is legal then cannabis should be too.
Again based on research, Professor Cannon says that it has been established that young people (teenagers and young adults) are particularly vulnerable because of the effect that cannabis has on the developing brain. Those who start using cannabis before the age of 15 were found to have 4 times the risk of being diagnosed with schizophrenia by the age of 26. There was evidence also of an 8 point drop in IQ that appears to be irreversible and lesser employment achievement. Professor Cannon described the psychosis associated with cannabis as one with “high levels of agitation, aggression and paranoia and can present a risk to family and others”.
[…]Professor Cannon is far from being on her own. A joint review of 18 separate research studiesby Marconi, Di Forti, Lewis and Murray (Meta-analysis of the Association between the level of Cannabis Use and Risk of Psychosis, (2016) 42 Schizophrenia Bulletin 1262) established that higher levels of cannabis use were associated with increased risk of psychosis including schizophrenia.
What Mr Farmer is failing to mention here is that after the age of 25 there is virtually a zero chance of developing schizophrenia or permanent psychosis from cannabis and a modest chance before that with the exception of adolescents. So in summary the reason why the “yes” side ignores the “cannabis causes psychosis” argument is because, to use the scientific term, it’s bullshit.
There is no doubt young people are much more vulnerable to cannabis harm which incidentally is a very good reason for a legal controlled adult market. In fact it’s one of the main reasons, if not the main reason, it was legalised in Canada.
In relation to alcohol, Professor Cannon in her Herald article makes the point that the failure of governments worldwide to control alcohol harm “shows that once an addictive substance is legalised and freely available, public health takes a second place to profit”. As she puts it: “Once society normalises the widespread use of a drug, it is almost impossible to undo that and put the genie back in the bottle”.
Here Mr Farmer is being disingenuous. The proposed law won’t make weed “freely available” as the cannabis market will be tightly controlled. As an aside when alcohol Prohibition ended in the US alcohol actually became less available. And note to the Professor: cannabis use is already normalised.
MEDICINAL CANNABIS IS NOW LEGAL AND SO CANNABIS FOR RECREATIONAL USE SHOULD BE ALSO
[…]Whatever the facts as to the utility of cannabis for medicinal purposes, that is an issue that is “completely separate” (to use the New Zealand Ministry of Health’s own words when describing the Medicinal Cannabis Scheme) from recreational use. As the Ministry says, a prescription from a doctor must be obtained for medical use and there arestrict rulesaround supply and strength.
[…]In truth, according to the logic that legalising cannabis for recreational use is not really that different from the existing lawfulness of its use for medicinal purposes, there should be no objection to our legalising morphine for recreational purposes because it is used for medicinal purposes. The “Opioid Crisis” in the United States demonstrates just how dangerous it is when the use of medicinal drugs is normalised.
I am absolutely incredulous that someone, a QC no less, would attempt to create a moral equivalence between the opioid crisis in the US (and it is a crisis hence I don’t use quotation marks) and cannabis legalisation. The opioid crisis in the US is something I actually know a little bit about. The catalyst was a pharmaceutical company aggressively marketing an opioid to doctors to push to their patients. This opioid was touted as having no risk of addiction. When it became obvious that this opioid was actually addictive doctors were then forced to stop supplying to their patients and the patients then went on to become heroin addicts. The lesson is the dangers of an unregulated drug market, not normalisation of medicinal drugs.
In any case though I do agree that medicinal cannabis being legal isn’t an argument for recreational cannabis being legal. The thing is is that it’s not really an argument being made on the “yes” side either so it’s a bit of a straw man. The actual argument is that medical cannabis is prohibitively expensive and legalising cannabis will make cannabis more accessible for those wanting to use it for pain relief etc.
THE LEGALISATION OF CANNABIS USE WILL DECREASE ANY HARM TO USERS BECAUSE ITS PRODUCTION, SUPPLY, STRENGTH AND PRICE WILL BE REGULATED
The Explanatory Note to the proposed Bill states that its “overarching objective” is to reduce harm associated with cannabis use. The measures in the Bill that will achieve this objective (with my comments) are said to include:
(1) Raising public awareness of the risks associated with cannabis consumption – (one wonders why it is necessary to make a substance that is presently unlawful lawful in order to educate the public of its dangers.)
(2) Restricting young people’s access to cannabis – (the Explanatory Note answers this by saying: “The purchase, possession, and consumption of cannabis will remain illegal for people aged 19 years and under.”)
(3) Providing access for adults to cannabis that is legal and quality-controlled – (that assumes that access to cannabis that is unlawfully supplied and above regulated potency limits will not be available, as to which see below.)
(4) Deterring the illegal supply of cannabis by controlling its potency and regulating the whole supply chain – (not the experience of Canada and American States where legalisation and regulation have been introduced: see below.)
(5) Encouraging compliance with the legislation and ensuring that “responses to breaches are proportionate and incorporate a focus on reducing overall harm” – a worthy objective which is achievable now under the 2019 amendment to the Misuse of Drugs Act: see below.)
[…]On the question of whether the legalisation that has occurred has led to a reduction in harm from cannabis use, reference should be made to a recently published article by Drs Robin Murray and Wayne Hall (Will Legalisation and Commercialisation of Cannabis Use Increase the Incidence and Prevalence of Psychosis: American Medical Association, JAMA Psychiatry, 8 April 2020). They find that, while the risk of dependence among cannabis users was estimated at 9% over 20 years ago, that number was now closer to 30% in those States in the United States that have legalised its use, with attendant increases in such harmful effects as cognitive impairment and effects on the unborn child by women who use it to combat nausea.
They refer to increased risks of depression and suicide but conclude that “by far the strongest evidence concerns psychosis [including] an increased risk of later schizophrenia-like psychosis”:
An appalling feature about the claim that legalisation will reduce harm from cannabis use is that the harm is grossly underplayed by the cannabis reform lobby. Patrick Cockburn, writing in The Independent on 22 June 2018, says:
“A depressing aspect of the present debate about cannabis is that so many proponents of legalization or decriminalization have clearly not taken on board that the causal link between cannabis and psychosis has been scientifically proven over the past ten years, just as the connection between cancer and cigarettes was proved in the late 1940s and 1950s.”
As I’ve said after the age of 25 there is virtually a zero chance of developing schizophrenia or permanent psychosis from cannabis use.
[…]legalisation of cannabis supply and use will eliminate the black market
The short answer to this proposition, based on North American experience, is no.
The longer answer, however, is that there are two effects of legalisation, both of which make the present effects of the Black Market considerably worse.
Let me stop right here. No one is saying legalising cannabis will eliminate the black market. When alcohol Prohibition ended in the US it took years, decades even, for the alcohol black market to disappear. In fact there are still places in the US where moonshine is being made.
The first is described by Patrick Cockburn. In the same article referred to above, he makes the point that “the legalization of cannabis legitimizes it and [sends] a message that the government views it as relatively harmless”. He then makes the obvious point that those who are licensed to manufacture and supply a product to the market will be motivated to increase the number of their customers and hence to increase their profits. Increased use will of itself lead to increased harm.
Given that is called Cannabis Legalisation and Control Bill it is hardly tenable to say it will be sending the message that the government views cannabis as relatively harmless. Secondly under the proposed law the market will be tightly controlled with little to no advertising allowed. And a reminder to Mr Farmer: nowhere where cannabis has been legalised has there been a significant increase in the rate of the number of users.
It is reasonable to predict also that lawfulness is likely to remove the barrier to cannabis use that exposure of unlawful use and possible conviction, and its effects on travel, employment and reputation, has as a deterrent to many adults. It has been suggested that the very fact of unlawfulness is an incentive to teenagers to be “cool” by partaking in an illegal activity. If so, nothing changes because supply to and use of cannabis by teenagers remains unlawful in an otherwise legalised regime.
I’d like to suggest to Mr Farmer that he steps into the real world. No one, in the history of the earth, has even said no to a joint because they thought it it might lead to arrest and conviction. Ever. As for teenage use there will be a major change as given there will be heavy penalties for selling to kids dealers will be much more inclined to either quit or go legit than sell to an illegal youth market. This we have seen happen in the US.
The second consequence from legalisation is that faced with competition in the form of licensed operators, the illegal market will not quietly retire but will develop innovative ways of competing with the regulated product.That is very much the North American experience to date.
A journalist, Mike Power, who had followed the implementation of Canada’s Cannabis Act of 2018 legalising cannabis use, reported recently that the black market in Canada was “still vibrant”: Stoners cheered when Canada legalised cannabis. How did it go so wrong?, The Guardian, 5 April 2020. More than that, stocks in firms (described as “vulture capitalists”) that were licensed to grow and supply cannabis at the end of 2019 crashed with substantial staff redundancies.
This was true also in the United States with share prices dropping by up to 80%.
The Black Market, it seemed, was very much up to the competitive challenge that the new regulated producers presented. Power’s account was as follows:
“… the price [of legal cannabis] was almost double that of the illegal market… That was caused by tax burdens and overheads: the legal market has to comply with regulations on fungicide and pesticide residue levels, and draconian security requirements for grow sites, such as huge vaults in which to store the cannabis and record-keeping for every person who enters these vaults. The illegal market, meanwhile, is completely unregulated – and thriving because of this. Statistics Canada, a state agency, reports that just 29% of cannabis users buy all of their product from a legal source.”
And who was responsible for those draconian regulations and security measures? In the US the barrier to get into the legal market is very high, costing up to millions of dollars not to mention the crippling red tape. It’s almost as if prohibitionists, having lost the battle to keep cannabis illegal thought to themselves, “I know, let’s make it as difficult as possible for people to enter the legal market so we can turn around and say that legalising cannabis has been a failure”.
Another problem identified in Power’s article was that the new, regulated, commercial growers, it seems, lacked the experience to produce good quality product as a result of faulty growth and harvesting techniques. A further problem was the delays in establishing lawful retail outlets which left the new growers with a glut of the product (assessed by Government inventory figures as being “a stockpile of grass weighing in at 400 tonnes”). This leads him to say that drug laws “generate countless unintended consequences – in fact, drugs laws often create the exact opposite outcomes to those desired… ironically, and with a beautifully stoned logic, it turns out that legalizing cannabis in Canada has generated just as many challenges as it solved”.
Teething problems aside around 63% Canadians see legalising cannabis as being successful with nearly all groups being in favour. The exception is those born before 1945 where only 21% approve. But far be it for me to say possibly, maybe, Mr Farmer is engaging in a bit of fear, uncertainty and doubt.
IT IS WRONG THAT PEOPLE USING CANNABIS SHOULD BE CONVICTED UNDER THE CRIMINAL LAW
Following on the theme just discussed, there is justified concern that, if the regulated cannabis market does indeed dint the Black Market’s present dominance in cannabis supply this may serve to encourage further the efforts of the Black Market to compensate for lost revenues by stimulating demand for methamphetamine and marketing it as a cheaper and more potent drug. That may be true also of heroin and cocaine, though these drugs are less prevalent in New Zealand because they face import difficulties.
Gangs already sell meth. In fact they try and upsell it to people buying cannabis who currently have no choice but to get it from gangs. The “concern” (prohibitionists aren’t really concerned with harm from drugs) that gangs will move onto harder drugs if cannabis is legalised is pure F.U.D. and nothing more.
There can be no sensible opposition to the proposition that methamphetamine and heroin are highly addictive and known to lead to paranoia and violent and criminal behaviour by users.
There are also the economic costs to society, for example, to name just two, from the costs of treating people who develop psychosis of one form or another, and from the need to decontaminate and even destroy houses rented to tenants (including State-owned houses) who use them to manufacture methamphetamine. There are also the social and personal costs from the effects of drug addiction – for example, those suffered by young women-led into prostitution to fund that addiction. The high number of deaths that result in countries where heroin is freely available is a real cost to society: for example, 953 deaths in a 5 year period in New South Wales.
Around 88% of drug use is non-problematic (see the United Nations Office on Drugs and Crime reports if you don’t believe me). So instead of targeting the 88% target the 12%. And of that 12% most aren’t addicts but are shall we say “dickheads”. Of those that are addicts then offer them help and if they refuse it then the law should be involved
As an aside I believe absolutely that state tenants should not be allowed to smoke cannabis inside. Then again I believe the same thing about tobacco.
One does not hear a case being made for the legalisation of the manufacture, supply and use of heroin and methamphetamine (or cocaine and other hallucinatory so-called “hard” drugs), not even by libertarians who argue that the individual should have a free choice as to what he or she puts into his or her body. It is not seriously challenged that the criminal law in particular does have a legitimate role to play for these drugs, certainly in relation to manufacture and supply.
I suggest Mr Farmer checks out this link. There’s also LEAP and the Conservative Drug Policy Reform Group.
The case for decriminalisation of drugs, in relation to the hard drugs and for cannabis, is more complex. There is no dispute that it is legitimate for Society to be concerned about adverse health effects of the kind identified in relation to cannabis – various forms and levels of psychosis in particular. The proposed Cannabis Bill says as much. The claim however that legalisation will reduce harm and “improve access to health and other relevant support services” is more dubious. Portugal is often cited as a country that has successfully decriminalised the use of marijuana – which it has. However, the use of cannabis still has legal consequences. Persons apprehended with even small amounts of drugs (including cannabis) can be ordered to appear before a “dissuasion panel or commission” consisting of legal, social and psychological professionals and repeat offenders may be ordered to undergo treatment.
A health-focused solution, but via the deterrence and incentivisation (to seek assistance) of the criminal law, is, in fact, available now in New Zealand, a fact that scarcely rates a mention in the current public debate leading up to the referendum.
In August of last year the Misuse of Drugs Amendment Act was passed, inserting section 7(5) and (6) into the principal (1975) Act. This directs the Police not to prosecute drug users (of all kinds) where a prosecution is not in the public interest. In determining that question, regard must be given to whether a health-centred or therapeutic approach would be more beneficial to the public interest in the particular case than criminal punishment. Interestingly, the proposed Cannabis Bill adopts a similar concept in the case of persons under the age of 20 years who will be prohibited from growing, possessing or using cannabis. A youth who breaches that provision will be issued with an infringement notice and ordered to pay an infringement fee of $100 or a fine of up to $200 (presumably for repeat offenders). However, the infringement notice may include a requirement to attend a support service and if that is done within the prescribed period the fee is waived and the notice is revoked.
That provision surely provides a surer incentive to a health-centred outcome for those who are using and in danger of harm from cannabis use. The Police are already taking a hard line on the enforcement of existing laws against the manufacture, growth and supply of harmful drugs (including cannabis). If they need more resources to be more effective, they should be given to them. The exercise of their discretionary powers under the 2019 Amendment should be encouraged and their effectiveness monitored. That is a sounder and safer way forward than the radical proposal of the draft Cannabis Legislation and Control Bill (if enacted), with its risks and undesirable consequences that overseas experience reveals.
The problem is that the amendment is not being properly implemented, not by a long shot. No doubt if the cannabis referendum fails the police will be pushed to start implementing the amendment correctly. For example in my opinion the amendment offers legal protection for properly run “cannabis clubs”. Unfortunately the amendment is yet to be tested. Speaking of which, given Mr Farmer QC expertise in the law, if the referendum fails and if the time comes, I might give him a call.
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