One option available to drug policy makers is the removal of incarceration as a sentencing option for cannabis offenders. In the instance of cannabis, perhaps more debate has been devoted to the question of whether or not simple possession of cannabis should be treated severely, for example with possible or probable jail terms, or more leniently, in the case of treating cannabis possession as a ticketable offence, which largely consists of leveling a small fine.
Currently, most countries treat cannabis possession as a criminal offence, in that persons convicted of simple cannabis possession charge are subjected to the possibility of a jail term, being given a criminal record for their crime, and being affected by the unintended and intended consequences of the conviction. In some jurisdictions in the U.S., cannabis possession is treated less severely, and those charged with this offence are rarely given more than a small fine. This situation offers an opportunity to assess the impact of this approach relative to other jurisdictions which treat cannabis offences more severely.
The aim of this essay is to explore decriminalization. I will examine the effects this approach has on overall levels of cannabis use, the individual cannabis possession offenders, and the criminal justice system. Methodological problems will also be addressed.
The History of Marijuana Decriminalization in the U.S.
Between 1973 and 1978, 11 states in the United States effectively decriminalized possession of small amounts of marijuana (Single, 1989; Model, 1993; DiChiara and Galliher, 1994). The reason for these changes in drug laws can be generally explained by the liberalization of public attitudes toward drugs (especially marijuana) during the 1970s. DiChiara and Galliher (1994) explain that part of this change is due to 'cognitive dissonance' caused by the arrest of high-status offenders. In general, relaxed attitudes toward marijuana, combined with the criminalization of greater numbers of high-status youths and the support of more efficient use of limited resources in law enforcement created a 'window' of opportunity where reform could, and did, take place (DiChiara and Galliher, 1994).
The decriminalization of certain drug offences meant that instead of being faced with a possible jail term when caught with small quantities of marijuana, the penalties for a person charged with possession generally consisted of a small or otherwise fairly modest fine (Single, 1989). Furthermore, a charge of possession in a state that had decriminalized marijuana generally would not lead to arrest, fingerprinting, jailing, or any of the other punishments and procedures applied to persons charged with a criminal offence (Titus, 1977).
The Effects of Decriminalization
The decriminalization of marijuana possession offences offers an opportunity to observe changes in these states after the law has been put into effect. For example, changes in the overall patterns of use, costs borne by the individual user, and the cost to the justice and health systems can be observed to determine if the change in the law has had a significant effect on any of these issues. While some of these changes have been studied, the data which would be helpful to more fully explore these changes has not been available or even forthcoming. However, a few general findings may be noted.
For example, it is generally noted that the use of marijuana in these states has not risen significantly in relation to non-decriminalized states (Single, 1989; National Research Council of the National Academy of Science, 1982). These states also saw a predictable decline in marijuana possession cases. In California, the total cost of marijuana law enforcement dropped 74%, from $17 million to $4.4 million (Single, 1989; National Research Council of the National Academy of Science, 1982). Since the majority of drug cases in both the United States and Canada have been marijuana possession charges, these changes are not surprising or unexpected. In terms of the impact of decriminalization on the individual cannabis possession offender, the visible changes have been largely due to the direct influence of the law. Since these users in the decriminalized states are typically no longer 'criminalized' (in the sense that they may be subject to fingerprinting, photographing, incarceration or having their offence recorded as a serious infraction of the law), they receive the benefit of being able to hide their infraction much as someone would hide a speeding ticket.
However, there is a distinct lack of research looking at the indirect effect of receiving a possession charge in decriminalized states, similar to the lack of research we find in jurisdictions where there has been no decriminalization of marijuana possession. For example, while short-term decreases in the number of marijuana possession offences, with a resultant decrease in the costs of enforcing the law are easily observed, other effects, such a reduced ability to find or retain employment after a possession charge, or changes in the users' family or friendship environments, have not been studied in decriminalized states, nor have there been many studies examining the often unintended consequences of receiving such a charge in jurisdictions which do allow for more severe penalties for marijuana possession.
Effect on Marijuana Use Rates
One major problem with determining whether or not marijuana use changes as a result of decriminalization is the fact that, in the majority of states that have decriminalized, no reliable statistics regarding marijuana use prior to the change are available. Thus, in many cases, marijuana use rates can only be compared to states which have not decriminalized. However, Single (1989) notes that in two states, Ohio and California, such data is available. In Ohio, where decriminalization was instituted in 1975, use of marijuana rose from 27% to 33% from 1974 to 1978 among those aged 18-24, and from 6% to 19% among those aged 25-34 during the same period (pp. 458-459). In California, which decriminalized marijuana use in January 1976, adult marijuana use rose from 28% to 35% from February 1975 to November 1976 (p. 459).
At first blush, it would appear that marijuana use increased as a result of decriminalization. However, these figures were taken at a time when drug use in general was climbing to an all-time peak in 1979 (Goode, 1990). Thus, comparing the figures from the decriminalized states to states which had not decriminalized yields a different picture. For example, a study comparing use rates from 1972 to 1977 in states grouped into three categories by severity of penalties (severe, moderate and decriminalized) showed that although marijuana use was indeed highest in decriminalized states, it was highest at the start of the time period, and the group of states with the most severe punishments had the highest proportionate increases of all three groups (Single, p. 459).
Similarly, Single writes that a study conducted using self-report data from Ann Arbor, Michigan found that during a period where drug policy oscillated between "prohibition, reduction of penalties (but still involving possible imprisonment), 'decriminalization' (maximum penalty of a $5 fine), reinstatement of severe penalties, and finally, a return to 'decriminalization'" there was no change in marijuana use rates (p. 459). Finally, Single reports through the analysis of national drug use surveys of students conducted since 1975, the impact of the law resulted in no effect on marijuana use among high school seniors (p. 460).
As it pertains to use rates, the number of cannabis users is not likely to increase under decriminalization. The ratio of users to the number of those being charged with a marijuana offence has always been very low, and so the probability that a marijuana user would be caught is not high. As Erickson (1993) writes of a slew of studies measuring the general deterrent effect of the law, "deterrent effects of the law in preventing cannabis use were demonstrated repeatedly to be minimal, and the policy was deemed to be a 'high-cost, low benefit' option (p. 1171).
In this light, there is little surprise that marijuana use is affected minimally by changes in the law, whether from legalization to prohibition (such as that which happened in the first third of the century in North America), or from prohibition to decriminalization.
Effects on Individual Cannabis Possession Offenders
Besides the obvious effects of not having been 'criminalized' by their use of an illicit substance, it is possible to hypothesize other costs and benefits to the user who is caught possessing marijuana in a jurisdiction which has decriminalized possession of marijuana.
Erickson's studies (1979, 1980) of the impact of punishment on drug users demonstrate that there may be indirect effects of punishment, whether intended by policy makers or not. In a field experiment exploring the differences in the ability to find employment, Erickson (1979) found that her research confederates who told prospective employers they had received convictions for minor marijuana offences received fewer positive responses than those who did not indicate such a conviction, and when they had indicated the punishment had been more serious, they received fewer positive responses still. As well, whether or not the position required bonding had an effect on the number of responses, as the jobs which required the employee to be bonded were more difficult to attain for those who said they had a prior conviction for marijuana possession.
In Cannabis Criminals, Erickson (1980) explored the effects of punishment on cannabis possession and found that the vast majority of cannabis offenders did not see themselves as criminals, yet felt the need to keep the fact of their conviction secret from their family and employers. In having to appear in court, a few of the subjects had some economic losses. About 5% of the subjects lost their jobs as a result of the court appearance, and three-quarters of the subjects lost an average of $70 due to the court proceedings (p. 140).
These studies reveal that the criminalization of cannabis possession offences often results in stigma applied to the cannabis possession offender which may have negative effects that might persist long after the date of the conviction, even if the offender has never been incarcerated. Under a decriminalized system, the offender usually is free from being arrested, having to appear in court, and having a relatively serious offence that they may have to reveal to a future prospective employer. Generally, since a possession offence is treated like a speeding ticket in a jurisdiction where cannabis possession has been decriminalized, the offence is easier to conceal, and the resulting lessening of stigma more likely to positively affect the offender. It should be noted, however, that the above studies also show that the stigma of a marijuana possession offence is still a concern; regardless of the punishment, some employers may still refuse employment if the offence becomes known, and family members may still react negatively to the knowledge of the offence. Thus, while the impact on the cannabis possession offender may be lessened by a lack of formal charges and punishment, informal social controls may still apply, and in fact may have more of an influence on the offender than the formal controls (see Erickson, 1993, for a discussion of both formal and informal social control related to drug use and drug policy).
Effects on the Criminal Justice System
The effects on the criminal justice system of the decriminalization of cannabis possession offences are generally seen to be mainly economic, and mainly positive. Single (1989) reports that recorded cannabis possession offences dropped 36% in California, 43% in Minnesota, 36% in Columbus, Ohio, and 41% in Denver Colorado (p. 462). This has led to a corresponding decrease in the funds spent on enforcing marijuana possession laws, and an increase in money spent on policing other drug laws (p. 462). While there seems to be no direct evidence of a similar cost benefit in the courts, fewer marijuana possession cases being brought before the courts most assuredly reduced the amount of resources spent on processing these cases. Erickson (1980) reports that the docket of one court each day was almost entirely made up of marijuana possession cases (p. 143). While these cases were largely expedited, the resources spent on these cases surely would have been considerably reduced proportionately to the reduction in overall cases under decriminalization.
In addition, there may be some evidence that the perception of the criminal justice system might be improved under decriminalization. Erickson (1980) reports that while her respondents did not gain a wholly negative attitude toward the criminal justice system, they did show negative perceptions of the law as it applies to their particular offence, and of the court itself, especially when they perceived their punishment to be unduly high.
The total effect of decriminalization on the criminal justice system, then, has been one of reduced resources and funds spent on upholding possession laws, processing possession cases through the court system, and possibly reducing the likelihood that the attitudes toward the criminal justice system (as they apply to cannabis laws) would be negatively affected.
Evaluation: What are the Strengths and Weaknesses?
Evaluations of the costs and benefits of a new policy are often difficult to undertake, particularly if the new policy is brought in without a corresponding collection of data which may give reliable answers to the question of whether or not a policy is effective. Single (1989) writes that only two of the eleven states that decriminalized possession of marijuana collected data on marijuana use before and after the decriminalization policy was enacted. Even so, the rise in use rates in these states is of little value on their own, as they may rise or fall according to trend they had been following before the policy was implemented, or affected by other factors that obscure the real impact of the decriminalization policy. These rates can easily be put into perspective, using comparisons with states that have not changed their policy. Using other, non-decriminalized states as control groups allows researchers to determine more closely what the use rates would have been had there been no change in the law (p. 459). These methods have enabled researchers to be quite certain that marijuana use does not increase because of decriminalization. However, lack of pertinent drug use data, the availability of only secondary data which was not intended to be used in evaluation, coupled with a lack of jurisdictions in the United States and Canada that have more recently decriminalized marijuana possession, have made the opportunity to adequately evaluate use rates under a policy of decriminalization quite elusive.
One other weakness of evaluation studies is that they typically look at aggregate use levels, which may obscure a rise or fall in problematic use rates. In Model's (1993) paper, Drug Abuse Warning Network data was used to consider the effect of decriminalization on emergency room episodes. She found that marijuana decriminalization was accompanied by a significant increase in marijuana-related emergency room episodes, and a significant decrease in emergency room episodes involving drugs other than marijuana. Again, however, this is a secondary analysis of data which was not collected for the purposes of an evaluation.
It is clear that methodological weaknesses in evaluation studies of this type are mainly due to the use of secondary data made to fit the evaluation, and a lack of planning for evaluation studies that might have the data on hand to effectively investigate the overall impact of marijuana possession decriminalization. The collection of original data is possible, but problematic in itself due to the scope of the effects a policy such as decriminalization might have. For example, possible sources of data would be licit and illicit drug use rates (from both the area of decriminalization and other areas), health care data (emergency room episodes, general practitioner's caseloads, addiction treatment requests), arrest data, budgetary data from the police and health care system (local, state or provincial and federal), property, violent and 'consensual' crime rates (both self-report and official), 'street' prices for illicit drugs, etc. Some of this data would be available, and would be useful even for a secondary analysis. However, some data would have to be collected for the purposes of the evaluation, which might be seen to be quite costly, regardless of the economic benefits which might be realized through relaxed enforcement of marijuana possession laws.
The impact of removing jail as a sentencing option for cannabis possession is generally a positive one. Despite fears that use would increase because of decriminalization, there is little evidence to show that this happened in any of the 11 states that have decriminalized small quantities of marijuana. Also, reductions in the costs of enforcement and courts have meant that these funds can be spent elsewhere. Finally, stigma might be seen to have been reduced for those being charged with a marijuana possession offence, reducing the likelihood of unintended consequences of being charged with a marijuana possession offence. However, for the most part, the data that would show a more complete picture of the effects of decriminalization have not been forthcoming, and without newer cases of jurisdictions that have recently decriminalized, coupled with adequate data, only generalities may be made of the effects.
DiChiara, Albert; Galliher, John F. (1994) "Dissonance and Contradictions in the Origins of Marihuana Decriminalization." Law and Society Review, Vol. 28, No. 1, pp. 41-77.
Erickson, Patricia G., and Goodstadt, Michael S. (1979) "Legal Stigma for Marijuana Possession." Criminology, Vol. 17, No. 2, pp. 208-216.
Erickson, Patricia G. (1980) Cannabis Criminals: The social effects of punishment on drug users. Toronto: Addiction Research Foundation.
Erickson, Patricia G. (1993) "The Law, Social Control, and Drug Policy: Models, Factors and Processes." The International Journal of the Addictions, Vol. 28, No. 2, pp. 1155-1176.
Goode, Erich (1990) "The American Drug Panic of the 1980s: Social Construction or Objective Threat?" The International Journal of the Addictions, Vol. 25, No. 9, pp. 1083-1098.
Model, Karyn E. (1993) "The Effect of Marijuana Decriminalization on Hospital Emergency Room Drug Episodes: 1975-1978." Journal of the American Statistical Association, Vol. 88, No. 423, pp. 737-747.
National Research Council of the National Academy of Science (1982) An Analysis of Marijuana Policy. Washington: National Academy Press. (Obtained from http://www.druglibrary.org/schaffer/Library/studies/nas/comparing.htm )
Single, Eric (1989) "The Impact of Marijuana Decriminalization: An Update." Journal of Public Health Policy, Vol. 10, No. 4, pp. 456-466.
Titus, H. W. (1977) "Oregon marijuana decriminalization: the moral question." Journal of Drug Issues, Vol. 7, No. 1, pp. 23-34.