Category Archives: US drug policy

Pushing Treaty Limits?

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This post was originally published here.

Suppose the United States government helps to negotiate, and subsequently champions, certain framework treaties–ones justly viewed as imposing significant constraints on all signatories. Down the road, the United States occasionally even calls out counterparties for their looser policy innovations, when the latter push the outer boundaries of what’s permitted under the treaties; a treaty-created monitoring body does likewise in its annual reporting. This pattern essentially holds year in and year out and from one presidential administration to the next.

But then the facts on the ground change radically. History shifts course. Unforeseen challenges arise. Some quite unprecedented changes insist upon–in the view of the executive branch–a more flexible approach, one in visible tension with the treaties’ express (and now seemingly outdated) language.  The United States claims that instruments once thought to be airtight are in fact rather capacious, and that the treaties build in enough discretion to permit states parties to decide, unilaterally, how best to further the accords’ larger aims. This in turn permits the United States to oppose any calls to revisit the treaties, and to avoid the messy, uncertain business of international negotiation and (shudder) eventually winning Senate approval.

Here’s a Lawfare thought experiment: what’s the body of law in play here? And what’s the policy shift now confronting that law?

As to the law: I refer of course to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol; the 1971 Convention on Psychotropic Substances; and the 1988 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (the treaty compliance body, established by the 1961 Convention, is the International Narcotics Control Board, or “INCB”).  Policy-wise, I have in mind the legalization and regulation of recreational marijuana by Colorado and Washington State—and that development’s conditional tolerance by the United States, in its enforcement of the Controlled Substances Act.

These are the subjects of a recent Brookings paper I co-authored with John Walsh of the Washington Office on Latin America.  The piece’s title is “Marijuana Legalization is an Opportunity to Modernize International Drug Treaties.”  Here’s the gist:

If indeed Colorado and Washington do presage fundamental changes in U.S. marijuana law and policy, then the United States’ stance regarding its drug-control treaty obligations will need to measure up to the requirements of international law. The U.S. assertion of its treaty compliance on the basis of “flexible interpretation” can be questioned. The International Narcotics Control Board (“INCB” or the “Board”)—a body charged with monitoring drug-treaty compliance and assisting governments in upholding their obligations—has already made clear its view that the United States is now in contravention. If more U.S. states opt to legalize marijuana, the gap between the facts on the ground in the United States and the treaties’ proscriptions will become ever wider. The greater the gap, the greater the risk of sharper condemnation from the INCB; criticism or remedial action by drug-treaty partners and other nations; and rebukes (or, worse, shrugs) from countries that the United States seeks to call out for violating the drug treaties or other international agreements. It is a path the United States—with its strong interest in international institutions and the rule of law—should tread with great caution.

The United States therefore should begin, now, to explore options that would better align its evolving domestic approach to marijuana with its international commitments. To be clear, this essay advances no claim about the desirability of legalizing and regulating marijuana. Indeed, the logic of our argument does not hinge upon one’s views as to the wisdom of legalizing marijuana, but instead upon recognizing that legalization has become a plausible  scenario for the United States. Nor do we call for immediate, drastic treaty reforms or endorse particular approaches over others. Rather, our ambition in these pages is more modest: to encourage policy makers to rule treaty reform in as an option, rather than presumptively ruling it out.

 

 

Time for UN to open up dialogue on drug policy reform and end counter-productive blame-game

tni-gdpoAs the UN International Narcotics Control Board (INCB) launched its annual report on Tuesday, 4 March, amidst an unprecedented crisis in the international drug control regime, leading drug policy reform experts have called on the INCB and related UN institutions to urgently open up a constructive dialogue on international drug policy reform.

Approval of legally regulated cannabis markets in the states of Colorado and Washington and in Uruguay have caused breaches in the UN drug control regime and shakes the foundations of the prohibitionist “Vienna consensus” that has dominated international drug policy for several decades.

Yet rather than seek to learn from or understand the growing political support for alternative drug policies, the UN drug apparatus – and particularly the INCB – has responded mainly with shortsighted hostility and narrow-minded rejectionism. It has refused to countenance any reforms, treating the set of conventions like a perfect immutable constitution rather than a negotiated settlement that needs reforming and modernising as science advances or political and social conditions change. This came to a head recently, when Raymond Yans, President of the INCB denounced Uruguay’s “pirate attitude” for its cannabis regulation laws, causing a diplomatic uproar and raising questions about his position.

A forthcoming report by the Transnational Institute and the Global Drug Policy Observatory to be released in the advance of high-level UN drug policy meetings in Vienna in mid March 2014, tells the hidden story of how the inclusion of cannabis in the 1961 Single Convention on Narcotic Drugs as a psychoactive drug with “particularly dangerous properties” was the result of dubious political compromises, questionable decision-making procedures and with little scientific backing.

Growing numbers of countries such as the Netherlands and Spain, but also states in the U.S. and India have shown discomfort with the UN drug control treaty regime through soft defections, stretching the inbuilt legal flexibility to sometimes questionable limits. The regulated cannabis markets in Uruguay, Washington and Colorado however are clear breaches with the treaty, and mean that a discussion on the need for fundamental reform of the UN drug control system can no longer be avoided.

Martin Jelsma of the Transnational Institute said,

“We are at a tipping point now as increasing numbers of nations realise that cannabis prohibition has failed to reduce its use, filled prisons with young people, increased violence and fuelled the rise of organised crime. As nations like Uruguay pioneer new approaches, we need the UN to open up an honest dialogue on the strengths and weaknesses of the treaty system rather than close their eyes and indulge in blame games. The moral high-ground that Yans claims in name of the Board to condemn such “misguided” policies, are completely out of place and unacceptable.” 

Dave Bewley-Taylor of the Global Drug Policy Observatory said,

“For many years, countries have stretched the UN drug control conventions to their legal limits, particularly around the use of cannabis.  Now that the cracks have reached the point of treaty breach, we need a serious discussion about how to reform international drug conventions to better protect people’s health, safety and human rights.  Reform won’t be easy, but the question facing the international community today is no longer whether there is a need to reassess and modernise the UN drug control system, but rather when and how.” 

 

In July 2013 the Research and Documentation Centre (WODC) of the Netherlands Ministry of Security and Justice asked RAND Europe to provide a multinational overview of cannabis production regimes.  The result of this research was a report that summarises differing cannabis production regimes across the world.  It also analyses official statements and/or legal decisions made about production regimes for non-medical and non-scientific purposes (i.e. recreational use for adults). 

Because GDPO has been following developments in cannabis policy across the world, particularly in the US, we decided it would be worthwhile to summarise some of the key points made in this important piece of research.  The report focuses on four key case studies: Spain, Belgium, the USA and Uruguay.

Spain – “Following several Supreme Court rulings, the possession and consumption of cannabis is no longer considered a criminal offence, and the jurisprudence in the field has tended to interpret the existing legislation in a way that permits ‘shared consumption’ and cultivation for personal use when grown in a private place.”

These legal developments have allowed hundreds of Cannabis Social Clubs (CSC) to be established although they still operate in a legal grey area.  The report identifies a number of conditions that need to be met in order for the Spanish CSC to be considered to “act in accordance with recurring criteria defined in case law.”

  • The CSC must aim to reduce the harms associated with the consumption of cannabis, decreasing for instance the risk of adulteration of the substance.
  • The premises must be closed to the public, and entrance must be only allowed to members (who should be regular consumers of cannabis).
  • The members must only obtain and consume the average quantity of cannabis. The CSC must not allow traffic of cannabis among its members.
  • The cannabis obtained from the CSC by its members is for immediate use on the CSC premises, to prevent others from having access to the substance.
  • There should be no payment/fee for access to the substance, or a limited one.” (pg. 10)

Belgium – “The Belgian CSC ‘Trekt Uw Plant’ (‘Pull Your Plant’) is a non-profit organization initiated in 2006, following the 2005 joint guideline (as issued by the Minister of Justice and the College of Public Prosecutors) which assigned the lowest possible priority to prosecution for possession of up to three grams of cannabis or one cultivated cannabis plant.”  

Trekt Uw Plant allows its members to produce cannabis collectively in closed private spaces in a number of cities (Antwerp, Luik, Brussels and Hasselt) with a ‘one plant per person’ policy.  Since establishing Trekt Uw Plant a number of members have been charged with a variety of offences from possession of cannabis to encouraging drug use, however none of charges have stuck.  The report sets out how Trekt Uw Plant operates:

“Each member pays a contribution for the costs incurred for raising the plants and every two or three months a so-called ‘exchange fair’ takes place in a private space, where members receive the harvest of their own cannabis plant (Trekt Uw Plant, 2013). In August 2013 Trekt Uw Plant consisted of 304 members, with departments in several cities and a medicinal division (Trekt Uw Plant, 2013). Eligibility for membership in Trekt Uw Plant is restricted to adults who live in Belgium, are cannabis users, are informed about the Belgian Drug Law regarding cannabis, support the organisation’s aims, and endorse its statutes and decisions (Trekt Uw Plant, 2006; Plant, n.d.), and membership is open to both non-medical and medical cannabis users (Verbond voor Opheffing van het Cannabisverbod, 2010). The organisation is based on a not-for-profit principle and is financially supported through donations, loans, membership contributions, legacies and other awards (Trekt Uw Plant, 2006).”(pg. 18)  

United States – The RAND report analyses the developments in Washington and Colorado where legal regulation of cannabis was instituted by voter initiatives in November 2012.  The report notes that, “Both states now allow adults aged 21 and older to possess up to one ounce (28.35 grams) of cannabis and larger weights of cannabis-infused beverages and edibles, and Colorado allows home growing (up to 6 plants), but the significant change is the licensing of large-scale commercial cannabis businesses. The initiatives tasked state agencies with developing regimes to license and regulate for-profit cannabis firms.”

In Colorado, the commercial market is regulated by the Marijuana Enforcement Division, operating under the Department of Revenue, and based on the Medical Marijuana Enforcement Division, which already regulates the medical cannabis market. Colorado’s regulatory system of production and supply came in to force on 1st January 2014 and it’s estimated that recreational cannabis sales exceeded $5million in the first week alone.  An NBC News survey published on 3rd February indicates that taxes raised from cannabis sales have netted the state $1.24 million in tax revenue in the first month.  It is possible that the sales will not continue at these levels once the novelty has worn off, however Mason Tvert, director of communications for Marijuana Policy Project argues that the so-called “Colorado experiment” will continue to show impressive sales, “obviously this is just the first month of sales and only a fraction of the businesses that are expected to be open are currently operating.”

In Washington where the Liquor Control Board (LCB) is in charge of regulating the industry, no date has formally been stated for the opening of stores but its thought they might be ready for sales by June of 2014. The LCB started accepting applications for licenses on November 18th 2013.

Whilst cannabis is still illegal under federal law, in August 2013 the US Department of Justice issued a memo that set out eight enforcement priorities in the light of the votes in Washington and Colorado:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for
  • the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana
  • Preventing drugged driving and the exacerbation of other adverse public health consequences
  • associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and
  • environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

Uruguay – On 31st July 2013 Uruguay’s House of Representatives voted in favour of a bill to regulate the production, sale and use of cannabis.  Details of the bill can be found here (in Spanish).  This bill was then passed to the Senate who approved the bill by 16 to 13 votes on 10th December.  President Mujica signed the bill into law at the end of December with the first sales likely to be in April 2014.

The bill will, “create a new public agency, the Instituto de Regulacion y Control del Cannabis [IRCCA], to issue permits for production by for-profit companies, and maintain registries for users and those who want to (1) grow at home (up to six plants), (2) participate in collectives (between 15 and 45 members who maintain up to 99 plants at any given point) and (3) purchase at pharmacies (up to 40 grams per month produced by licensed companies).”

The RAND report identifies four crucial distinctions between these case studies:

The first is whether the activity pertains only to distribution within cannabis clubs, as in Belgium and Spain, or whether larger scale and overtly for-profit activity is or would be permitted, as in Colorado, Washington and Uruguay. The second distinction pertains to whether government action is undertaken by the national government or by a subnational jurisdiction that has some degree of sovereignty under that country’s constitution.  Uruguay’s situation is the only one that involves a national government passing a law with respect to activity that is clearly meant to be suppressed by the international treaties. The third issue is the role government employees do or do not play in production and distribution. In Belgium and Spain, there is no role. In Colorado and Washington the role is indirect, in the form of licensing and regulating but not participating in the trade. A final distinction pertains to how overt the officially banned but nonetheless tolerated activity can be. In Belgium, if the cannabis clubs are visible in the manner of Trekt Uw Plant, law enforcement may act, albeit perhaps half-heartedly. By contrast, cannabis production and distribution in Uruguay and the United States will involve fully open activities; cannabis business will be registered with, and will pay taxes to, the government.” (pg. xi-x)

As well as reviewing these four case studies, the report also refers to a number of the other countries (or jurisdictions) that have either allowed production of cannabis for medical and scientific purposes (Canada, Chile, Czech Republic, France, Israel, Germany, the United Kingdom and Switzerland) or have had discussions about changing the laws on cannabis production for recreational use (e.g. Chile, Denmark, Portugal and Switzerland and Copenhagen City Council).

This report is a fantastic resource for those anyone interested in the ways that cannabis policy is developing across the globe.

Citation for the report is as follows: Kilmer, Beau, Kristy Kruithof, Mafalda Pardal, Jonathan P. Caulkins and Jennifer Rubin. Multinational overview of cannabis production regimes. Santa Monica, CA: RAND Corporation, 2013. http://www.rand.org/pubs/research_reports/RR510

Modernizing Drug Law Enforcement takes the stage at United Nations headquarters in New York

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Last week the topic of modernizing drug law enforcement took center stage at UN Headquarters when the Permanent Missions of Switzerland and the Czech Republic to the United Nations co-sponsored a program with International Drug Policy Consortium (IDPC), Harm Reduction Coalition, the International Security Research Department at Chatham House and the International Institute for Strategic Studies (IISS) entitled “Modernizing Drug Law Enforcement”. Featuring a distinguished international panel of scholars and law enforcement personnel including Professor David Bewley-Taylor (Director, Global Drug Policy Observatory (GDPO) at Swansea University, UK), Dr. Vanda Felbab-Brown (Brookings Institute, Washington D.C.) and Interim Chief of Police Jim Pugel (Seattle), the event aimed to promote debate around the current challenges to drug law enforcement, the concept of managing drug markets to minimize harm and the implications for future law enforcement strategies. The program was moderated by Heather Haase of IDPC and Harm Reduction Coalition and was well-attended by the UN community and civil society.

The first speaker was Professor David Bewley Taylor, who gave an overview of the Modernizing Drug Law Enforcement project and its key goals and objectives. Providing background for the project, he explained that for decades drug law enforcement has focused on reducing the size of the illicit drug markets by seeking to eradicate drug production, distribution and retail supply, but that these methods have failed in significantly decreasing supply and demand in consumer drug markets. As a result there is a need for an adjustment in drug law enforcement strategies: the new challenge is to manage drug markets policing strategy in a way that will minimize harm to communities.

Minimizing harm is particularly relevant in the case of drug-related violence. Discussing the relationship between violence and drug markets, Professor Bewley-Taylor explained how actions of law enforcement can affect – and even cause – drug drug-related violence. He noted the growing recognition that law enforcement powers can be used to constructively shape these markets and discussed several underlying concepts, especially focusing on the need to change indicators to “metrics that matter” – from metrics concerned with numbers of drug-related arrests, seizures, or hectares of crops eradicated to measures relating to public health and community well-being. He also discussed the need for selective targeting of law enforcement efforts on areas where the most impact on harms can be achieved, and concentrating law enforcement action on the basis of the level of harm caused by individuals in the market (rather than focusing on the easiest to catch).

Professor Bewley-Taylor then presented the core objectives of the program, supported by a series of publications as well as network development and seminars. He ended by expressing the hope that “we will move into the High Level Review in Vienna and the 2016 drugs UNGASS with a different view about policing drug law enforcement”.

Next, Dr. Vanda Felbab-Brown discussed her report “Focused deterrence, selective targeting, drug trafficking and organized crime: Concepts and practicalities” (as well as various concepts addressed in the other reports in the series), focusing on enforcement efforts in the context of global drug markets. Giving an overview of the ever changing global drug market, she noted that while each country is different and “one size does not fit all” in the context of law enforcement responses to each situation, there were some things that are generally true across the board. These included that we not only cannot arrest our way out of the drug problem but we also cannot “eradicate” our way out: eradication efforts have not had a lasting effect on markets due to the “balloon effect”. The drug markets pose very severe threats to states and societies – including violence – and therefore it is critical how these markets are managed. She discussed traditional law enforcement methods (exported from the US, particularly NY) such as zero tolerance and high-value targeting (going after heads of criminal organizations) that have been ineffective overall. She then suggested an alternative: while law enforcement has traditionally focused on suppression on the flow of drugs, it makes more sense to focus on suppressing the violence instead. Drug markets lend themselves to this prioritization because drugs are an infinitely renewable resource; thus it would be more effective to focus on the harms associated with the flows, rather than on the flows per se. Another method is to identify the greatest threat generated by a particular drug market and apply selective targeting and focused deterrence methods to signal to criminals that certain behaviors are less tolerated than others (e.g., trafficking will be punished, but violence will be punished far more). Also, middle-level targeting is more effective than high-value targeting, as it is really the middle layer that allows an organization to operate, while in many cases high-value targeting disrupts an organization leading to more violence but no change in conditions.

Finally, she suggested that the goal of law enforcement in connection with drug markets should be to shape behavior of criminals to pose the least threat to societies. She discussed certain aspects connected with this goal, including reducing, to the lowest level possible, the violence of criminals, their capacity to corrupt societies, and their interaction with society. She pointed out that these goals might be achieved not just through deploying law enforcement approaches but with other policies including socioeconomic approaches to dealing with criminality.

The last speaker was Interim Chief Jim Pugel, acting chief of the Seattle Police Department. Chief Pugel described a program that puts many these concepts into practice: the Law Enforcement Diversion Program, or “LEAD”, operating in Seattle. The LEAD program is a comprehensive initiative championed by government and non-government, multi-agency and community partnership to divert non-violent, low level drug dealers away from jail and toward a productive life while making residents feel safer and saving money.

First he discussed some of the challenges law enforcement faced in Seattle that gave rise to the program, including business and resident complaints of street level drug dealing in the downtown area, pressure to arrest low level drug dealers, many of whom were ‘subsistence’ sellers, and concerns of disproportionate impact of these arrests on racial minorities – as the result of which the police department and prosecutors were sued. In the end, they realized that the system was very expensive for everyone involved, and did not produce results. To come up with a better solution for the community, numerous stakeholders, including ACLU, public defenders, police, prosecutors, elected officials, local businesses and community, came together, and, over an 18-month period, met to define the issues and agree on moving forward. The result was the LEAD program.

Chief Pugel then discussed the program including eligibility for LEAD (involving factors such as amount of drugs sold or possessed, whether the person is amenable to diversion, and whether the person exploits others or has committed a violent crime) and how it works: at the point of arrest, the officer offers the choice of going to jail or going to see a case manager. The case manager from a service provider performs an initial assessment at the police station, and within a week a 3-hour assessment is done. The program tries to meet the person’s needs on a holistic basis whether that entails treatment, housing or other services. Any treatment is harm reduction based, and a person can be in the program indefinitely.

A brief audience Q&A session followed the panel speaker presentations in which the discussion circled back to examples of “metrics that matter” – metrics based on community health, such as HIV/AIDS rates, drug-related violence (particularly homicides), and the level of penetration of criminal groups into political processes were cited as examples. The point was made that the difficulty of measuring “smarter” metrics should not deter us from using them – and that there were many indices already available such as the Human Developments Index.

The following day, Professor Bewley-Taylor and Dr. Felbab-Brown, along with Virginia Comolli, Research Associate for Transnational Threats at IISS, presented a similar program to an audience of US officials, security experts, members of the drug policy reform community and embassy personnel at IISS-US in Washington, DC. During his stay in New York, Chief Pugel also made a presentation on the LEAD program to a group of state prosecutors, district attorneys, public health professionals and law enforcement personnel from all over New York State in a meeting held by Drug Policy Alliance and Open Society Foundations, at OSF’s offices in New York City.

The full audio of Modernizing Drug Law Enforcement at UN Headquarters is available here and a video of the IISS-US event can be viewed here.

By Heather Haase, IDPC New York consultant

This post was originally published on the IDPC website

The Beginning of the End for the Pot Prohibition

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The beginning of the end for the ‘war on weed’ in the US?

A new survey conducted by Rasmussen Reports in August 2013 shows that 82% of Americans think the US is losing the war on drugs. Only 4% of respondents believe the US is winning this war. This survey comes at a sensitive time for US commitment to the ‘war on drugs’ or the ‘war on weed’ at least.

In November 2012 two US states – Washington and Colorado – voted to tax and regulate recreational adult use of cannabis. Earlier this year Pew Research found a majority of the public – 52% – think the drug should be legal. The same poll also found that almost three quarters of Americans – 72% – think that efforts to enforce marijuana laws cost more than they are worth.

Now it seems that even the federal government is having doubts about the benefits of criminalising pot smokers. In August US Attorney General Eric Holder announced that low level, nonviolent drug offenders with no history of ties to gangs or organised crime shouldn’t be charged with offences that carry mandatory minimum sentences.

Also in August CNN’s Chief Medical Correspondent Sanjay Gupta (reportedly Obama’s choice for US Surgeon General, though Gupta turned the post down) made a documentary about the medical benefits of marijuana. Gupta argued that the DEA’s insistence that cannabis has “no accepted medicinal use and a high potential for abuse” has little scientific basis and that the American public has been “systematically misled” about cannabis and apologized for his role in this. The White House has refused to comment on Gupta’s documentary and in fact since Obama took office raids on medical marijuana dispensaries have increased.

On 29th of August 2013 the Department of Justice released a memorandum to US attorneys and law enforcement officials noting that whilst they should continue to enforce the federal government’s prohibition on marijuana the main focus in those states that allow some form of cannabis use – either for recreational purposes such as Washington and Colorado – or for medical use should be on eight key areas:

• Preventing the distribution of marijuana to minors;
• Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels;
• Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
• Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
• Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
• Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
• Preventing marijuana possession or use on federal property

This guidance is an attempt to resolve the tensions between state laws and federal law with regards to cannabis. The commitment to maintaining the prohibition on pot is essential – not least because they are signed up to international treaties such as the 1961 UN Single Convention on Narcotic Drugs – however Obama has been open about his own weed smoking as a college student and must find it hard to ignore the shifting public opinion especially when more people voted to tax and regulate pot in Colorado than voted for him.

So the big question many drug law reformers in the US are asking is, ‘Is this the beginning of the end for pot prohibition?’