After my panel interview on KNPR last week to discuss the pros and cons of legalizing marijuana, I was left with a lot of food for thought. There were some great points made by everyone involved, and I haven't thought about the issue - or the practical domestic ramifications - of such a dramatic shift in US drug policy as deeply and extensively as I have in the last week.
Then I read an intriguing Twitter post a few days ago, and my brain has been spinning ever since. Essentially, it pointed out that the United Nations requires member states to enact prohibitionist policies. So I asked myself, if this is true, why doesn't anyone mention it during debates over legalization, and how do countries like Portugal and the Netherlands get away with their liberal drug policies?
It turns out that those countries - and a few others with similar policies - have never truly legalized drugs; they have decriminalized their use. And this is where the huge amount of public misinformation and misunderstanding begins.
Many people don't understand the subtle - but distinct - legal difference between legalization and decriminalization. Legalization of a drug or several drugs means that anything associated with it - its use, possession, production, distribution, etc. - is completely legal and not subject to any criminal or civil penalty. Of course, laws can be enacted to regulate all of those things, and the breaking of those laws can draw penalties. In the example of alcohol, you can buy and consume it if you're over the age of 21, you can sell it if you have a license, and you can get arrested if you drink too much of it in public. Contrary to public perception, not one country (at least, none of the 180 signatories to the UN Single Convention on Narcotic Drugs) has fully legalized drugs.
However, there are several countries that have decriminalized the use and possession of various drugs. This means that people caught using or possessing them are either given a simple fine, the drugs are confiscated, or they're mandated to seek some sort of counseling or treatment (sometimes only after the third violation). Drug use is treated pretty much in the same way as a speeding violation. Those involved in the manufacture or distribution of drugs, however, can be prosecuted as criminals. Some of these countries include Portugal, the Netherlands, Spain, Argentina, Germany, Ecuador, Belgium, and Mexico. Yes, Mexico.
Before I get into the decriminalization loophole, I want to bring to your attention a document I just mentioned - the United Nations Single Convention on Narcotic Drugs. This is an international treaty that was created in 1961 to essentially serve as an umbrella for several different anti-drug conventions that were created several decades earlier, and was able to take into account new synthetic drugs and opioids that had come into vogue during that window. In 1972, it was supplemented by the Convention on Psychotropic Substances, which controls LSD, Ecstasy, and other psychoactive pharmaceuticals.
Knowing about the Convention is critical to understanding some of the complexities of international drug policy - specifically, why certain countries do or don't do certain things with their drug policies. The Convention prohibits the production and supply of specific (nominally narcotic) drugs and of drugs with similar effects except under license for specific purposes, such as medical treatment and research. Article 36 requires treaty parties to criminalize "cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention." It also identified/created the four schedules that we're familiar with for categorizing drugs based on their potential for addiction and medical uses.
Understanding the Convention is also important because it turns out it's the foundation for our own drug policies. Our Controlled Substances Act of 1970 and the United Kingdom's Misuse of Drugs Act 1971 were actually designed to fulfill treaty obligations. Both Acts include analogous schemes of drug scheduling, along with similar procedures for adding, removing, and transferring drugs among the schedules. The Controlled Substances Act also includes a provision mandating that federal authorities control all drugs of abuse at least as strictly as required by the Single Convention.
So how do those countries that have decriminalized drug use and possession get away with it on the international stage? Well, the Convention has a lot of loopholes. And, after all, it's the United Nations we're talking about - not exactly an authority with teeth. There has been considerable legal debate over whether or not the Convention's reference to criminalization of possession means or includes possession for personal use, or just for intent to distribute. The wording that mentions penalties and exceptions for certain countries' constitutions is necessarily vague, and treaty parties can easily find a way to decriminalize drugs - much to the UN's chagrin - through their interpretation of the Convention.
On the flip side, countries with conservative drug policies can point to the Convention as a major reason for maintaining a prohibitionist stance. After all, the US designed its own drug policy after the Convention. How would it look to the international community if the US government decided to blatantly defy the Convention by decriminalizing marijuana? I ask that rhetorically, as I've just laid out how it's not really that blatant of a rebuke. But the US is held to a different international standard than many other countries, and the UN pointing out an American refusal to stick to the Convention's principles and guidelines would go over very differently than if, say, Ghana decided to do the same thing.
So, taking all of this into account, I wonder why the drug policy reform movement isn't pursuing a decriminalization agenda rather than one for legalization. Given the legal distinction between the two, and the fact that no country has truly legalized drugs (only decriminalized them to varying extents), surely they have to know that legalization just isn't a practical goal. Decriminalization, however, is a different story. Maybe it's just easier to use the term legalization, or maybe no one wants to explain over and over the difference between the two.
I strongly suspect that the drug reform movement isn't concerned about the practicalities, given the passion of those in the movement I've come into contact with. However, I wonder why they're so vehemently pushing for all-out legalization - given the Convention's requirements for treaty parties against it - instead of the more doable decriminalization. I'll be the first to admit I don't know a ton about NORML or the drug reform movement in general, so perhaps it's a matter of principle or the group's mission not to take baby steps.
Just a few final points I want to make here. First, those of us involved in one way or another in the debate over drug policy need to be better about describing it more accurately. Drug reform advocates can't point to countries like Portugal and the Netherlands as good examples of countries that have legalized drugs, when in fact they've only decriminalized them to varying extents. Second, I think it's smarter for drug reform advocates to pursue a decriminalization agenda rather than a legalization one, if only because it's more practical and realistic in light of restrictions imposed by the Convention; not super-enforceable perhaps, but ones which the US government will likely always stick to. At least with decriminalization, there's are viable loopholes our government can exploit. And no matter how much legalization advocates may disagree with or despise the Convention, it's a UN treaty with 180 signatory nations, and it does mean something.
Third, the American public has been warming up to the concept of legalization over the last two decades, but how many of them know about the complexities of international drug policy and how that impacts what we can do to change our own policies? The American public isn't stupid. However, it's very easy to misinform people, especially on issues they may not closely follow or not feel too strongly about one way or another. A big push to educate Americans - and our own government, perhaps - about the relative ease of decriminalization compared to full legalization might make some big inroads for the drug reform movement, as well as our own understanding of how we view drug use.