Marijuana’s decriminalisation in America and South Africa – Implications

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MarijuanaEvery year on 20 April marijuana advocates from Johannesburg to California celebrate cannabis culture, writes The Conversation. The publication ran a serious of articles on that date, ranging from a look at statistical evidence on the legalisation of cannabis for recreational use in 10 US states to analyses of the human rights implications and uncertainties around South Africa’s decriminalisation of the private growth and use of marijuana.

The series drew on articles from the United States published in The Conversationthis month, as well as articles from South Africa that appeared last September.

 

Does legalising marijuana help or harm Americans? Weighing the statistical evidence

The legalisation of marijuana in the United States has been a topic of contention and confusion for both sides of the debate, writes Liberty Vittert for The Conversation.The federal government still deems it illegal. But marijuana has been legalised for recreational use in 10 states and the District of Columbia, and a further 21 broadly legalise medical marijuana.

This article was published on 8 April 2019.

Researchers like myself finally have some data to assess claims made on both sides. Let’s take a closer look at three major arguments around marijuana legalisation – and how the statistics stack up against them.

How much money will states earn from marijuana taxes?

One of the biggest pro-legalisation arguments was that states would be able to bring in a new source of tax revenue.

Colorado, for example, imposes a 15% excise tax from cultivator to retailer and a further 15% sales tax on the end customer.

In 2018, Colorado legal pot sales topped US$1.2 billion, with the state pulling in about $270 million in taxes. Compare that to the approximately $45 million that the state collected in tax on alcohol that same year.

A study from Georgia State University found that alcohol sales fell by 15% in states where only medical marijuana had been legalised and by 20% in counties where recreational marijuana is sold legally. However, the states made more than enough back from marijuana sales, since marijuana taxes are typically greater than alcohol taxes.

Other states are reaping the benefits of marijuana taxes as well. California pulled in $345 million in 2018 and Washington $376 million. New Frontier Data, a cannabis data website, predicts the legalised cannabis market will grow to US$25 billion by 2025.

However, there are a lot of questions about how much tax revenue states will actually earn, especially considering that some states have missed their projections by a long shot.

For example, the governor of California predicted a much larger $643 million in revenue. Meanwhile, projections for Washington suggested that the state would earn only $160 million.

While projections for other types of goods are typically more reliable, this is an entirely new market and therefore prone to error. Why? Well, the jury is still out. Some researchers and pundits have guessed that in California taxes are too high, that the black market is too strong or that the red tape of bureaucracy is just too much.

Regardless, it’s clear that marijuana tax revenue has increased year over year for every state that has legalised recreational marijuana. While naysayers are touting California’s missed projections, Colorado, while struggling to meet its projections in the first three years after legalisation, eventually exceeded its projection.

Is legalised marijuana hurting youth?

A well-trodden argument against legalisation is that it could lead youth to use it more. For example, anti-drug group DARE has blamed marijuana for a rise in school suspensions and youth suicide, among other things.

Here is the problem: Researchers simply don’t have enough data yet.

Studies have shown that youth marijuana use actually decreases in states where medical marijuana has been legalised. Researchers guess that this may be due to kids viewing marijuana as medicinal instead of recreational.

While other studies have suggested that legalising marijuana can lead to increased use, this could simply be reporting bias. In other words, if it is legalised, people are more willing to be honest about use.

Other studies show quite the opposite. For example, Colorado teens had a statistically significant drop in marijuana use over the past three years since recreational legalisation.

While there are strong indicators that the legalisation of recreational marijuana leads to decreased use in youth, only time will give the final verdict.

Does marijuana increase crime?

Many who are against legal marijuana claim that it could lead to an increase in violent crime.

Even in Colorado last year, there were rumblings from Gov. Hickenlooper about banning marijuana, since crime in Colorado has been rising since 2014, the same year marijuana was legalised.

There is really no doubt that states which allow medical marijuana show absolutely no increase in their violent and nonviolent crime statistics. In fact, crime might actually decrease.

However, crime has increased in many of the cities where recreational marijuana is legal. Homicides in Seattle, D.C. and Denver – all major cities with legal marijuana – have increased over the past few years. But homicides have also increased in cities without recreational marijuana, such as Chicago, St. Louis, Baltimore, New Orleans and Kansas City.

A homicide increase over four years alone in cities where marijuana is legalised reveals absolutely nothing. This is a classic case for the statistical saying “correlation does not necessarily mean causation.” Take California, for instance. Murders in Oakland are down, but murders in Fresno are up. How can that be recreational marijuana’s fault?

However, legalised marijuana does seem to have an effect on the justice system. According to FBI crime data, in 2017, there were 659,000 marijuana arrests in the U.S. There were also 1.2 million violent crimes with victims, but only 518,617 arrests for these same violent crimes. This means that there are more than 700,000 victims who have suffered without justice.

In states with legalised recreational marijuana, police now no longer spend time on marijuana arrests and can spend more time on solving these types of crime. FBI data from Colorado and Washington show that crime clearance rates – the number of times that the police solved a crime – increased for both violent and property crimes after legalisation.

While there are still many unknowns surrounding the legalisation of recreational marijuana, I believe that this shows that it will be a positive influence.

* Liberty Vittertis Visiting Assistant Professor in Statistics at Washington University in St Louis.

Does legalising marijuana help or harm Americans? Weighing the statistical evidence

 

As marijuana goes mainstream, what’s happening to the way we talk about weed?

For decades, the marijuana industry operated underground, outside the confines of the law. But even though at the federal level, possession and the use and sale of marijuana remain illegal, 29 states and the District of Columbia now allow medicinal marijuana to be sold for the treatment of specific diseases. Moreover, nine states now permit its recreational use.

As a linguist, I’ve been interested in exploring how legalisation has changed the way we talk about the drug – specifically, how new dispensaries are marketing their product – writes Frank Nuesselfor The Conversation.

This article was published on 20 April 2019.

A drug that’s ripe for slang

Marijuana terminology is vast, with as many as 1,200 slang words used to describe the drug and its various strains.

Slang develops for several reasons. It’s a form of in-group signaling – a way for people who share a similar set of interests to communicate with one another. But it also allows people engaged in criminal activities to conceal their illegal pursuits.

Slang can quickly change. Once the general population becomes aware of the meanings behind certain words – and they become adopted in everyday speech – users feel compelled to create new lingo in order to remain subversive (or mask unlawful behavior).

Given marijuana’s decadeslong status as an illegal drug – and its popularity relative to other drugs – it’s no surprise that a rich lexicon has developed over time.

Some of marijuana slang is ephemeral, while others have endured for decades and tend to still be used in popular culture. They can be organized into six categories: Strains that reference geographical designations (Kona gold, Texas tea), names that reflect the strand’s color (blue sage, green goddess), terms derived from the word “marijuana” (Juanita, Mary Jane), words that reference the effects of the strain (giggle weed, dry high), how the marijuana is packaged (bale, doobie) and deceptive code words (astro turf, broccoli).

These words are metaphoric and graphic, conjuring up striking images that allude to the distinctive features of the drug and its iterations.

Weed goes mainstream

But now that marijuana has become legalised, there’s been a shift in the way the drug is marketed and sold. No longer is it peddled in parking lots and apartments. Instead, storefronts are cropping up on main streets in cities and towns across the country. And many of these dispensaries have vague, clinical-sounding names that are the exact opposite of weed’s vibrant, slangy jargon.

A few years ago, linguist Will Styler wrote about a gift certificate he had received from a family member for a “Wellness Center” in Denver. He immediately thought it was a gift certificate to a marijuana dispensary, but it was actually for a therapeutic massage. He wondered why he had made the assumption. After looking up how often the word “wellness” was used by dispensaries, he found that 65 out of Colorado’s 424 dispensaries (at the time) used the word.

His blog post inspired me to write an article that analyzed the names of Colorado’s medical marijuana dispensaries.

I found that many have vague names that don’t exactly alert the passersby to the product being sold. If you were to drive by “Advanced Medical Alternatives,” “Alameda Wellness Center,” “Kind Pain Management,” “New Age Management” or “Colorado Care Facility,” you might think you were passing a doctor’s office, physical therapist or homeopathic treatment center.

Other dispensaries allude to the organic nature of marijuana – the fact that it’s a plant cultivated just like tomatoes and corn that you purchase at the market: Emerald City Organics, Lucky Farms and LEAF Locals Emporium Farms.

Why are dispensaries advertising themselves this way?

Terms that make reference to the organic nature of marijuana might be signaling the fact that the marijuana is locally grown, which is good for the community and environment. Other dispensary names – those that include words like “wellness” and “care” – could be highlighting the product’s medicinal value. Together, they signal that stores are serious, legitimate enterprises – which is a way to avoid antagonizing locals who might not be fully on board with legalisation.

Nevertheless, there are still subtle nods to the drug’s linguistic tradition of deception. For example, two dispensaries – Tender Healing Care and Total Health Concepts – have the initials “THC,” an abbreviation for tetrahydrocannabinol, the active ingredient in marijuana.

And because Colorado was at the forefront of the legalisation movement – in 2012, it was the first state to authorize the legal sale of marijuana for recreational use – some of the state’s dispensaries have quirkier names that could appeal to tourists: Happy Camper Cannabis Company, Smokey’s 420 House and Bud Hut.

Marijuana™

The potential branding of marijuana and its strains creates another new aspect of the language of cannabis. A brand name assigns a specific and unique personality to a product; it also creates a stable image so consumers know exactly what they are purchasing.

But since marijuana is an illegal drug at the federal level, the U.S. Patent and Trademark Office doesn’t grant requests from marijuana producers for trademarks.

Nevertheless, as a 2017 Forbes article points out, even though the trademarking of cannabis isn’t legal, the issue of branding will need to be addressed at some point. Without rules in place, it will be too easy for competitors to deceive consumers and advertise knock-offs, especially as competition grows.

In the meantime, from a linguistic perspective, these language tweaks taking place signify changes in not only how the public views marijuana, but also how marijuana marketers want the public to view their product: as a safe substance used to alleviate pain, nausea and anxiety.

As a once-illicit drug becomes folded into the mainstream, so does the language used to describe it. And so while people once needed to buy “dimebags” from their “kushman,” they can now purchase a package of cannabis cookies at their local “wellness centre”.

* Frank Nuesselis Professor of Spanish, Italian and Linguistics at the University of Louisville.

As marijuana goes mainstream, what’s happening to the way we talk about weed?

 

South Africa’s top court legalises the private use of marijuana. Why it’s a good thing

South Africa’s Constitutional Court has passed down a judgment that makes it legal for adults to cultivate and smoke marijuana in their homes. The court – the country’s highest – ruled that the right to privacy was violated by prohibiting the possession, purchase or cultivation of cannabis for personal consumption by an adult in a private dwelling, writes Mary Nel for The Conversation.

This article was published on 19 September 2018. 

The case was pursued by various parties, including a Cape Town lawyer, Gareth Prince, who is a practising Rastafarian. It was opposed by, among others, the country’s ministers of Justice and Constitutional Development, Police and Health; the country’s National Director of Public Prosecutions and the NGO Doctors for Life International.

The Constitutional Court’s judgment is to be applauded for doing away with the moralistic and paternalistic assumption that marijuana use by adults in private is always wrong and unhealthy. South Africa joins a number of countries that have taken a similar step, among them Canada and Portugal.

But there are still lots of uncertainties that need to be cleared up before South Africans can use marijuana without fear of prosecution. One of these is that the country’s laws will have to be brought into line with the judgment.

What the court found

In making its ruling, the Constitutional Court considered several issues. These included privacy, health concerns and the status quo in other parts of the world.

Delivering the unanimous judgment, Deputy Chief Justice Raymond Zondo stated that “the right to privacy entitles an adult person to use or cultivate or possess cannabis in private for his or her personal consumption”. And, he added,

to the extent that the impugned provisions criminalise such cultivation, possession or use of cannabis, they limit the right to privacy.

The court also examined the medical evidence that was used when the case was first brought to a lower court – the Western Cape High Court – as well as evidence from a 2002 case about the religious use of marijuana. It found no persuasive medical evidence that dagga in small amounts was harmful to users, particularly compared to the harm resulting from use of alcohol. Nor was there proof that marijuana use caused violent or aggressive behaviour or that its use led to the use of more potent or dangerous drugs.

The Constitutional Court noted that the personal consumption of small quantities of marijuana had been decriminalised or legalised in many other democratic countries.

The State failed to prove that the existing limitation of privacy was reasonable and justifiable. The relevant legal provisions that criminalise personal, private use of dagga by adults were declared unconstitutional and invalid. That order was suspended for 24 months. This will give parliament time to rectify the constitutional defects.

In the interim, the court ordered, adults who use, possess or cultivate cannabis in private for their own personal consumption are not guilty of contravening these provisions.

The personal consumption exception has been widely celebrated. But it raises various practical difficulties.

Practical concerns

First, it’s less than clear under what circumstances the personal consumption exception will apply. According to the Constitutional Court, police officers will have to determine this on a case by case basis. To do so, they’ll need to consider factors such as the quantity of cannabis in the person’s possession and whether they can give a satisfactory account of their possession.

Uncertainty relating to how the exception is to be enforced in practice is problematic. It may even mean that the exception violates the so-called principle of fair warning. This rule requires criminal law provisions to be clearly formulated so those subject to them know ahead of time what they may and may not do.

Second, while the Constitutional Court judgment confirms the Western Cape High Court’s findings in many respects, it also differs in important ways. Significantly, the Constitutional Court held that there was no persuasive reason for the High Court to confine its declaration of invalidity to marijuana use in a home or private dwelling.

The Constitutional Court envisages instead that, provided dagga is used “in private and not in public”, it is protected by the right to privacy, even if the adult in question is not at home or in a private dwelling. It uses the example of someone who has cannabis in their pocket for private consumption, and then steps outside their home or dwelling. Provided the cannabis remains in their pocket and is for personal use, it still falls within the constitutional protection.

This seemingly broadens the exception proposed by the High Court. But once again, it remains to be seen how the courts will interpret the distinction between public and private use in practice.

Another aspect of the High Court judgment the Constitutional Court refused to confirm relates to the order declaring that provisions prohibiting the purchase of cannabis were invalid. The Constitutional Court argued that allowing people to purchase marijuana would amount to sanctioning dealing in cannabis.

This aspect of the judgment raises a legitimate practical concern: how is an adult user of cannabis supposed to acquire the marijuana they’re allowed to use in private if they don’t buy it from a dealer of some sort (which the Constitutional Court explicitly says is illegal)?

The user could grow their own. But they would need to obtain the seeds or buy them from someone else – who is, by definition, a dealer. The judgment’s implication seems to be that to exercise one’s (constitutionally-protected) right to use marijuana in private, one must inevitably act illegally since any purchase of marijuana and related products makes one an accomplice to dealing in cannabis.

* Mary Nel is a senior lecturer in Public Law at Stellenbosch University.

South Africa’s top court legalises the private use of marijuana. Why it’s a good thing

 

South African court frees cannabis from colonial and apartheid past

ruling by the South African Constitutional Court opens the way for decriminalising private use of cannabis, locally known as ‘dagga’. It marks a definitive shift in a century of notoriously punitive drug policy, recognised in the recent judgement ‘,writes Thembisa Waetjen for The Conversation.

This article was published on 23 September 2018.

In 1922, cannabis was officially classified and designated for control as a “habit-forming drug” through a national Customs and Excise Act. Consequences of this legal development were not only local: they were global.

A year after the national law was passed, the government under Prime Minister Jan Smuts, approached the League of Nations’ “Dangerous Drugs” committees requesting that cannabis be included within the same registers as opium, morphine and cocaine. Two years later cannabis was placed within international drug protocols.

This begs the question of why and how cannabis came to hold such political significance for colonial rulers in South Africa. What was behind the 1922 law? And how did that history shape subsequent cannabis politics?

Cannabis has a deep precolonial past in southeastern Africa. It didn’t, however, feature in the intoxicant repertoires of Anglophone settlers. After British victory in the South African War (1899-1902) against the Boer republics dagga came under imperialist scrutiny. Colonial officials registered ongoing confusion about the uses, effects, and cultural meanings of cannabis. They often conflated it with the indigenous species leonotus, also known as lion’s tail and wild dagga. The leaf is widely used for medicinal purposes.

No colonial consensus on the cannabis question

When the country was politically unified from four colonies into the Union of South Africa in 1910, there were, in fact, widely diverging official views about dagga lawmaking.

In the Cape, dagga was grown commercially. Its bulk sale was advertised in the Cape Times newspaper until around 1898. Although brought into the pharmacy law’s “poison” schedules in 1905, it’s regulation through medical professionals was contested by politicians representing dagga-growing constituencies. Pharmacists were accused of setting dramatically reduced wholesale prices and profiting from their monopoly. For some, it became a roaring, “non-medicinal” trade.

After unification, Cape physicians, police, government officials and wine farmers cooperated to lobby for more stringent controls. They claimed it was a substance that diminished the work ethic of agricultural labourers, increased crime, and encouraged sex across the colour line.

In the Natal colony, early in the century, white settlers in towns along with African Christians and political activists, such as African National Congress’s first president, John Langalibalele Dube, called for dagga prohibition on similar grounds. Yet the Native Affairs Department stood firmly against this idea deep into the 1920s. It viewed the smoking of dagga as a cultural practice that should be regulated informally, through customary structures of patriarchy.

The department argued that dagga was used by respectable Zulu-speaking men “who should not be made criminals by a stroke of the pen”. And it warned it would be impossible to enforce and would likely produce rebellious sentiments.

Meanwhile, some traditional leaders proposed a law that would prohibit youth and women from smoking dagga, but would allow the practice among senior men.

In the Transvaal province during this period, the official concern about intoxicants was related to labourers in the gold mining sector. In contrast to Cape fruit growers, Witwatersrand mine inspectors surveyed in 1908 and 1911 firmly advocated tolerance for dagga-smoking in worker compounds.

There, new meanings and values around dagga smoking were being shaped by a dangerous and alienating work environment. Cannabis was seen as a source both of sociability and relief from anxiety and pain. For young migrant workers, smoking dagga was a cultural symbol of personal freedom and mature manhood.

Dagga tacked on to opium laws

Meanwhile, from 1912, international governments began to negotiate on protocols for the control of the trade in opium, the controversial financial base of the British Indian colony. South Africa’s government came under ongoing pressure from London to conform to international agreements by passing a national anti-opium law.

In 1916, the Union government drafted the “Opium and other Habit-Forming Drugs Regulation” bill. It now used the leverage provided by international opium agreements to overrule dissenting voices on cannabis. The government also included both leonotus and cannabisspecies as “drugs” to be controlled, with punishments of £100 fines and six months of prison.

While provincial governments had sought dagga controls through Noxious Weed legislation and upscheduling in existing pharmacy law, dagga was now to be declared a “habit forming drug” under national authority.

As other scholars have observed, racist public panics around dagga in the early 1920s helped to push prohibition through parliament in 1922. Yet these had been ongoing from earlier in the century. For a variety of reasons, it suited the Smuts government to respond that year. Not least of these was the opportunity to represent government as responding to the race populism of its white electorate. This followed Smuts’s heavy-handed assault against striking white workers earlier that year, violence that killed 200 people.

Contestations within the white colonial government are important to note, because they proved consequential in the social and political effects of cannabis suppression into the 20th century. Those against the new law were offered an informal “compromise”. Native Affairs Department administrators were assured that, although the new law empowered authorities to police urban workplaces and “white” residential zones, it would “avoid drastic or ill-advised” control in “remote localities” – essentially the areas governed by traditional authorities.

The law, in other words, rested on segregation, a division of racial geography. As the century progressed, the effect of the laws’ unevenness shaped the illicit cannabis economies that developed in the wake of prohibition.

Communal (“tribal”) land became important for cultivating dagga. Through collusion with some police and white landowners, it was smuggled into urban and industrial spaces. Over time, many livelihoods came to depend on dagga cultivation and trade, precarious though these were.

More stringent policing and extensive raids began in the late 1950s. The law’s reach had dire consequences – overwhelmingly for black South Africans. It compounded other aspects of apartheid’s carceral politics.

The Constitutional Court’s ruling offers possibilities for reducing harms that have accompanied decades of punitive law enforcement. It follows trends of decriminalisation worldwide and introduces issues of dignity and rights into an ongoing debate.

*Thembisa Waetjenis Associate Professor of Historical Studies at the University of Johannesburg.

South African court frees cannabis from colonial and apartheid past

 

Marijuana use in South Africa: What next after landmark court ruling?

South Africa’s Constitutional Court has delivered a unanimous judgmentthat certain parts of the country’s drug laws are inconsistent with the right to privacy. Adults are now allowed to use, possess or cultivate cannabis in private for their own personal consumption, writes Anine Kriegler for The Conversation.

This article was published on 20 September 2018.

The court gave some broad guidelines about what this would mean in practice. But it has left the details to Parliament.

This is an important victory for human rights and common sense. It also matters to the almost 300 000 people who are arrested for drug-related crimes each year, mostly for possession of small amounts of cannabis.

But there is much more work to be done to design a humane and rational system to regulate cannabis. Some of the key issues that will need to be addressed include how far privacy extends, exactly what products should be regulated, how non-users will be protected, and what to do about the existing criminal market.

The measure of privacy

Significantly, this change came after a legal challenge in support of the right to privacy. It did not result from a popular vote or from a shift in government policy, based on public health principles. This means the new regulatory system will need to look quite different to two of the existing models in the world.

The first is the commercialised system developing in parts of the US, where businesses sell cannabis in much the same way as alcohol. The other is the medicalised model of Uruguay, where cannabis can be bought without prescription at pharmacies.

Other countries can offer more appropriate comparisons. Jamaica has set its limits at possession of 2oz (56.6g) and the cultivation of up to five plants on any premises. Colombia’s limits are 20g or up to 20 plants. Spain’s limits are rather less clear, and must take into account the circumstances of the case, but plants should not be visible from the street.

An important question is whether South Africa will allow cannabis social clubs – structures for the non-profit production and distribution of cannabis among a closed group of adults. This is the “Spanish model”, which is currently in a precarious legal position at home but enjoys significant expert support, either as a permanent position or as a transitional model while more formally regulated production systems are developed. Such clubs should enjoy the same protection on the basis of privacy, although their regulation introduces additional complications.

Parliamentarians will also have to decide on what substances will be included in the law. Will it extend to hashish (a concentrated resin made from cannabis), cannabis oils, or synthetic cannabinoids? And should the court’s reasoning not be extended to other substances that have been judged by experts to present less harm than alcohol?

Preventing harm to others

The prevention of impaired driving is a reasonable concern. Given the difficulty in physiologically measuring cannabis intoxication, there will be a need to formalise rules on field sobriety testing. Parliament will have to keep abreast of emerging evidence. Clear public messaging should be developed to communicate that cannabis-impaired driving is illegal and risky.

Another concern is the protection of minors. Regular cannabis use does seem to pose risks for adolescent brain development, so it is important that the country works out how best to discourage its consumption among or near children.

Commercialisation question

One criticism of the private cultivation and use model – such as the one in Spain – is that it forgoes the possible benefits of a more open regulated and commercialised system. This includes prospects for purity and potency controls, economic and employment growth, and tax revenues that can be earmarked for programmes to help mitigate cannabis-related risks and harms.

The approach envisioned by the South African Constitutional Court also has the disadvantage that it leaves intact the criminal market that supplies those who don’t meet its restrictions. Not every prospective cannabis user will be willing or reasonably able to grow their own plants or to join a cannabis club. So, there will still be a role for organised criminal groups to reap profits.

And there will still be a need for police enforcement. But it will involve even greater scope for discretion and possible corruption. The country will need to guard against a “net-widening” effect, where policy liberalisation ends up drawing even more people into conflict with the criminal justice system. South Africa will also need to interrogate whether it is still justifiable for people to be jailed for supplying a product that consumers have a right to possess.

Finally, there is the question of the many people who have been criminalised for an activity that is now considered an expression of a basic constitutional right. The court was clear that its judgment was not to be applied retrospectively. However, other jurisdictions – as in the US – have already begun offering pardons on request or discussing whether pardons should happen en masse.

Not a free-for-all, but an excellent start

Those cannabis campaigners and aficionados who were hoping for a Colorado-style boom in consumer options would have been disappointed. On balance, however, this may be a good thing, at least in the interim. Many policy reform experts warn of the dangers of over-commercialisation.

Putting the supply of a risky product in the hands of profit-maximising private interests with little interest in public health is not a recipe for success. In this, the history of alcohol and tobacco control provide a useful lesson.

* Anine Kriegleris a researcher and doctoral candidate in criminology at the University of Cape Town.

Marijuana use in South Africa: what next after landmark court ruling?

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