Tuesday, February 20, 2018

Legalise it — or decriminalise it?

Dana Seetahal logo24

Mark Fraser

While some may consider the Chief Justice’s apparent support for decriminalising possession of (small) amounts of marijuana to be hardly a matter for an opening of the Law Term address, the more significant point is that he has widened the debate on the issue that had already begun in a low-keyed fashion in this country.

Last year the judiciary, through an initiative by the Ministry of Justice, embarked on a Drug Treatment Court pilot project in San Fernando. The aim is to treat differently with users of illegal drugs. After almost a year the CJ is unable to report on the success in any real terms of this court except to say that it is early days yet and the numbers are small. I personally look forward to an expansion of these courts. There are many chronic drug users in our society and their families would appreciate the benefit of court-sponsored and monitored treatment programmes for addicts who can avoid incarceration and/or a criminal record if they prove to be drug-free for over a year.


The issue of decriminalisation, though connected, should not be seen as a replacement for such programmes. Typically decriminalisation means that there will be no prison time or criminal record for possession of a small amount of the illegal drug for personal consumption. Possession is treated like a minor traffic violation. This is different from legalising the use or possession of marijuana, as for instance has happened for medical purposes in some places.

Many states in the US, in decriminalising marijuana possession, opt for fines, drug education, or drug treatment in place of incarceration and/or criminal charges for possession of small amounts of the drug. In 1975 the Alaska Supreme Court declared the state’s anti-drug law unconstitutional with respect to possession of small amounts of cannabis, holding that the right to privacy guaranteed by the constitution of Alaska outweighed the state’s interest in banning the drug. On September 30, 2010, California decriminalised the possession of up to one ounce of marijuana. 

Further, the law reduced simple possession from a misdemeanour to an infraction, eliminating the need to appear in front of a court and treating possession of less than 28.5 grammes like a traffic ticket, punishable by $100. In Connecticut in June 2011, the state decriminalised possession of small amounts of marijuana and instead offenders pay a $150 fine for a first offence and a fine ranging from $200 to $500 for subsequent offences. Those younger than 21 face a 60-day driver’s licence suspension. In New York possession of 25 grammes (0.88 ounces) or less of cannabis is a civil citation punishable by up to a $250 fine and a $100 court surcharge.

In Colorado the legislature went further when in November 2012, a law was passed legalising the recreational use of cannabis. On May 20, 2013 the state became the first to have a legally regulated market for cannabis for adults in the US.

Medical use

Medical use of marijuana is sanctioned by several states in the US. Research done by the National Cancer Institute, in particular, has shown that marijuana has at least five medical benefits. It is said to help with insomnia as it improves the mood and has benefits in reducing nerve pain and pain from muscle spasms. It is found to be beneficial to HIV/AIDS patients who suffer loss of appetite, nausea and vomiting. Sufferers may thus purchase marijuana on prescription as medical treatment in these states.


In some other countries marijuana use is actually legalised — to a limited extent. The key controls are that it must be by an adult, for personal use and in small amounts. For instance, in Argentina the Supreme Court held in 2009 that the private use of marijuana in small amounts was constitutional. In The Netherlands a distinction is drawn between hard and soft drugs and marijuana has been sold for decades in “coffee shops”.  The situation is similar in countries such as Belgium, Spain, Chile and Brazil, among others.

There are various arguments for and against legalising marijuana use. Among those for legalisation are the contention that marijuana use is not immoral; it is a recreation drug; prohibition must be weighed against the loss of personal freedom; by providing legal supplies of this drug the price of other illegal drugs will fall, leading to a collapse in the illegal drug industry and thus a reduction in crimes committed by both drug suppliers and users. 

Arguments against legalisation include: a state should not be involved in the distribution of substances considered immoral/unhealthy by several groups in the population; the easy availability of drugs would create new consumers rather than rescue current ones; drugs are addictive and rob the user of free will; and the use of soft drugs, such as marijuana, leads to the use of hard drugs (the Gateway Theory).

The research on the long-term effects of marijuana is inconclusive at best. Unresolved issues include the drug’s addictiveness; its potential as a “gateway drug”, its effects on intelligence and memory, and its contributions to mental disorders such as schizophrenia and clinical depression. While little research has been done on the drug’s effects on the lungs a US government study has concluded that moderate marijuana use does not impair pulmonary function.

In the midst of all of this what is the preferred policy for T&T? My firm view is that jail is no place for a first-time user or an addict. Possession of less than 10 grammes of marijuana should be treated as an infraction rather than a criminal offence, leading to a criminal record, and repeated users should be allowed the treatment option. Trafficking any illegal drug, including marijuana, however, should continue to be firmly prohibited.

• Dana S Seetahal is a former independent senator