In an ever-escalating determination to prosecute illegal drugs, President H.W. Bush in 1990 increased the budget for the War on Drugs by 50 percent. The extraordinary expenditures continued through the presidency of Bill Clinton, who nevertheless was the first (but not the last) American president to admit that he had tried marijuana.
Some American politicians did question the efficacy of the War on Drugs through those years. A 1995 Sentencing Commission noted the disparity in sentencing between powder cocaine (used mainly by middle-class people) and crack cocaine (used mainly by people with lower incomes). Crack cocaine offences were, by law, punished by one hundred times as much prison time as powder cocaine.[2] The Sentencing Commission made recommendations to rectify this state of affairs and related issues, but its recommendations were rejected by the United States Congress. The Obama administration later reduced the disparity of 100:1 to 18:1 with the Fair Sentencing Act of 2010. Clearly, to be equitable, the ratio should be 1:1, a change which now is also being supported by the Obama administration.[3]
Currently, both medical marijuana and legal marijuana regimes are being successfully organized in some American states. Twenty-one states have already legalized the use of marijuana for medical purposes, while two states have legalized the recreational use of marijuana as well. The federal Attorney General has recently issued instructions not to prosecute every single case of marijuana possession. This is an important departure for an office that has always insisted upon its right to prosecute drug offences over state preferences.
Further, the Obama administration is implementing other changes, including releasing some prisoners from their long sentences.[4] The administration is asking defence lawyers to help identify people who are serving long sentences for crack offences so that Obama can use his executive authority (avoiding Congress) to have them released. Prison officials are also spreading the word. At the end of 2011, about thirty thousand inmates were serving sentences for crack offences (15 percent of all inmates). The president kick-started this process by pardoning eight inmates in December 2013. Unfortunately, as of February 2014, there were 3,500 petitions on the administration’s desk and no adequate system for processing them. Since Obama is the “stingiest” president in history when it comes to granting pardons, inmates still serving sentences under the old regime do not hold out much hope for an early reprieve.[5]
Canada: A Reliable Ally
Canada, too, laid down long sentences and harsh punishment for drug users beginning in the 1960s. A seven-year minimum sentence for importing drugs was not removed until it was struck down by the Supreme Court of Canada in the 1980s. Many young people went to prison for simple possession of soft drugs or for trafficking, which includes sharing (that is, passing a joint from one person to the next). A single marijuana seed in a shirt pocket could result in an arrest.
Rosie Rowbotham famously spent decades in the Canadian penitentiary system for his participation in the drug trade.[6] In the 1970s, as a young man, he set up shop selling marijuana in Rochdale College in Toronto, where the lineup of buyers stretched down the corridor. Later, he imported tons of hashish, receiving sentences amounting to decades of prison time. He served the longest sentence in Canadian history for marijuana offences, and grew old in prison.
Yet as early as 1972 — at the same time the United States was declaring its War on Drugs — Canada’s Le Dain Commission was recommending lifting the prohibition on marijuana possession. Gerald Le Dain of Osgoode Hall Law School chaired the Commission of Inquiry into the Non-Medical Use of Drugs, which also recommended lowering sentences for importing/exporting and trafficking and removing the prohibition on producing marijuana unless it was for the purpose of trafficking. The Le Dain report languished for years and no action was taken upon its recommendations. On the contrary, Canada continued to prosecute the War on Drugs with increased vigour.
In 1988, the Canadian Centre on Substance Abuse (CCSA) was created by Parliament as the national non-governmental organization (NGO) on addictions.[7] In 1990, the Health and Welfare secretariat was created to coordinate activities around illegal drugs within the federal government and abroad. In 1992, the government established Canada’s Drug Strategy. It called for a balanced approach to illegal drugs, including control and enforcement, prevention, treatment, and rehabilitation and harm reduction. These changes were made by the Progressive Conservative government of the day. (The current ruling Conservative Party of Canada takes a different approach, emphasizing control, enforcement, and incarceration.)
Then in 1997, amid much controversy, the Controlled Drugs and Substances Act — a very severe law — was passed by a Liberal government. Witnesses who gave testimony at parliamentary committees were highly critical of this punishment-oriented law. They said it perpetuated 1920s-style prohibition without placing any emphasis upon harm reduction or prevention. The Liberal government at the time nonetheless ignored expert advice and ramped up its policy of incarceration. By 1998, Canada’s Drug Strategy (the one with the balanced approach, led by Health Canada) was receiving no funding at all.
The 1997 tough-on-crime legislation proved to be an abject failure, however. Despite the fact that many more people were in prison, almost twice as many people were using marijuana in 2001 as in 1991.[8] By 2012, Canada’s consumption rate was one of the highest in the world.[9] About three million Canadians today use marijuana, including 17 percent of those between the ages of fifteen and sixty-four. Although one poll from 2012 showed that 66 percent of Canadians support reforming the marijuana laws to reflect this reality, prohibition and severe penalties continue to be government policy. Costs are soaring and prisons are double-bunking in record numbers.
Back in 2001, Canada had become the first country in the world to permit medical marijuana use. This was a singular accomplishment, but it only happened because the courts compelled it.[10] The resulting Marihuana Medical Access Regulations (MMAR) have been less than adequate, entailing much red tape, poor-quality marijuana, reluctant doctors, and a continuing risk of prosecution. Today, the Conservative government is revising the system in ways that will make it even more difficult and more expensive for patients to acquire their medical marijuana.
In 2002, the Senate Special Committee Report on Cannabis surprisingly recommended outright legalization of marijuana for those over sixteen years of age, including an amnesty for all those who had been convicted of possession of small amounts of marijuana and elimination of their criminal records. Having considered the pros and cons of decriminalization as opposed to legalization, the committee decided that decriminalization represented the “worst case scenario.” Why? Because it did not allow for governments to control and regulate the drug, thus leaving organized crime in the driver’s seat.
The Senate Committee noted Canada’s high rate of marijuana use, despite extraordinary and expensive efforts to eradicate the industry. Enforcement had become particularly severe since the attack on the World Trade Center in 2001. While agreeing that “at-risk” behaviour is possible with marijuana use, the committee questioned the strategy of resorting to criminal sanctions as the best way of controlling its use. “Even if cannabis were to have serious harmful effects, one would have to question the relevance of using the criminal law to limit these effects,” it said. As far as the committee was concerned, the main social costs incurred by marijuana use were those incurred as a result of its criminalization, not as a result of its consumption.
Faced with the international implications of what it was recommending, the Senate Committee was careful to note a North-South geopolitical disconnect in drug laws. They pointed out that organic substances mainly originating in the South, where they were often part of the local tradition and culture, were strictly prohibited in the North. These included coca, poppy, and marijuana. Substances mainly originating and produced in the North, however, were merely regulated as legal substances. These included alcohol, tobacco, and pharmaceuticals. Yet all of the latter demonstrably represent a serious threat to the health and well-being of users and others.
Neil Boyd, a Canadian expert on illegal drugs from Simon Fraser University, is even more pointed in his analysis.