Two weeks ago, our Chief Justice took advantage of the political neutrality of his office to open a debate on the arrest and prosecution of persons for small quantities of marijuana.
I am in favour of exempting from prosecution persons who are in possession of small quantities of marijuana for personal use. I suggest later that the constitutionally protected standard of equality before the law requires it.
Conceptually, as stated in a recent interview, while I recognise that “decriminalisation” has become a word in international use, I prefer that any proposed amendments to our legislation provide for an exemption from prosecution. Any broader concept of what is being released from the grip of the law may send the wrong message that the use of all mind-altering drugs is acceptable.
Mind you, much of drug interdiction fails to hinder the trade. The volumes of product available and the mountain of finance backing the international drug trade makes the trade able to run rings around and corrupt law enforcement as necessary.
In The Laundrymen, an in-depth study of the world of money laundering and narco-economics, the author, Jeffrey Robinson, writes this: “In reality, a drug free America or a drug free Europe is a pipe dream. One recent survey suggested that, even if law enforcement agencies throughout North America and Europe were able to increase their seizures by 40 per cent, the availability of drugs on the streets of New York, Toronto, London, Paris, Madrid, Rome or Frankfurt would be virtually unchanged.”
With reference to billion dollar interdiction efforts in the Gulf of Mexico and the Caribbean in the early 90s, Robinson quotes a former high North American official as follows: “General interdiction, which has been very costly, does not work. I’ve not seen anything since I’ve been in office which would indicate to me that it’s been a cost-effective effort.”
Countries where government revenues are less than drug cartel profits, and where the underworld is wealthier and better armed than the Government, are hamstrung in physical interdiction operations. Our task is to take down the facilitators of the movement of drugs, money and arms. Those facilitators, as everyone knows, are not the boys and girls on the blocks; but police heat is placed on those boys and the girls on the blocks. They are predominantly the ones whom the spliff jails.
At its heart, equality before the law does not permit different strikes for different folks. It does not permit the legal process to pick and chose according to popularity, power, creed, race, wealth or influence.
The recently retired Lord Chief Justice of England, Lord Judge, in an acclaimed speech to the 2013 Commonwealth Law Conference put it this way: “Do we ignore the unlawful arrest of an individual who has been charged with a dreadful offence, or indeed who has been demonised by society? Of course not. Do we allow freedom of speech only to those who agree with and express views which we share? Of course not. A human right that is not universally available to every citizen in the country is a contradiction in terms. It is equality before the law that underpins the concept and ultimate achievement of the rights bestowed upon us by our common humanity.”
Just, therefore, as lawyers are required to defend unpopular citizens, so too one must consider whom the spliff jails free of prejudice and disdain. In view of recent experience, it should be repeated the recent use of a state of emergency, if justified, should have picked up the facilitators as well as the foot soldiers, something the authorities utterly failed to do.
The prosecution of persons for marijuana manifestly falls disproportionately upon certain less well-placed citizens, particularly youths. This is wrong in principle and socially divisive. It is an important reason to add to those that point in favour of removing from the penal process a widespread activity that has scientific support for the view that a spliff is no more harmful than the consumption of alcohol, both in appropriate moderation, both subject to laws, which punish excess such as driving under the influence and subject also to access to treatment for abuse.
A major operational difficulty in any exemption from prosecution for possession of small quantities of marijuana is the regulation of supply. We cannot sensibly bring personal use into the light and leave supply in the shadows. We must try but we do have a chronic governance problem. We try to leave everything in the shadows, usually because we do not want to disturb the interest of a kindred person, because such a person is batch mate, classmate, fellow tribes person, political donor or pumpkin vine.
The state enterprise system is full of such shadows. It is a source of shadowy, and sometimes, instant individual prosperity. We are also a country of disguises. For example, we are a no-casino country full of casinos.