DOES NEW ZEALAND CANNABIS POLICY NEED DUTCH COURAGE?

• Author: Webb, Michael
• Position: Statistical Data Included

INTRODUCTION

In a recent issue of the Social Policy Journal of New Zealand, Sally Abel and Sally Casswell backgrounded the development of cannabis policy in New Zealand, identified options for modifying the current prohibitionist approach, and speculated on the likelihood of future cannabis law reform (Abel and Casswell 1998). They detected a number of tensions, particularly the perceived impact of neo-liberalism in supporting moves to increase availability of the licit drug alcohol, commenting: "It is possible that the alcohol industry has considerable influence over how it positions itself in the market vis-a-vis other drugs, such as cannabis" (p.80). The researchers also pointed to a lack of strong community support, and a lack of political will to engage in cannabis law reform, as supporting the status quo. Were this constellation of factors to change, however, Abel and Casswell argued, economic incentives to cultivate and distribute cannabis should be reduced, which suggests to them a need to consider a more liberal policy than the "prohibition with civil penalties" models that are being pursued in Australia.

The Netherlands is typically cited as having the most liberal cannabis policy of any country in the world, making it a lightning rod for enthusiastic praise or damning criticism, depending on the commentator's ideological starting point. As some observers have remarked, however, "a closer examination suggests that the actual Dutch policies are considerably more nuanced and the results more ambiguous than is generally understood" (MacCoun and Reuter 1997: 48). This paper describes and analyses the Dutch approach to cannabis, in order to better contextualise any future debate about adopting or adapting a Dutch style "decriminalisation" model in New Zealand. It draws upon field research and key informant interviews in Amsterdam, Rotterdam, Utrecht and The Hague, which were conducted in November and December 1998. The paper concludes by discussing the relevance of the Dutch model to New Zealand.

THE DUTCH APPROACH TO CANNABIS CONTROL

The Dutch approach to cannabis has often been associated with the words "pragmatism", "tolerance" and "normalisation". At a recent international symposium on regulating cannabis, however, one Dutch researcher encouraged participants to "conceive it as a mixture of benign neglect and haphazard punishment" (Jansen 1998). Variously portrayed as an enlightened system of regulated tolerance or a doomed experiment in calculated indifference, the so-called "Dutch model" has been in place for over twenty years. In that time, its core features have remained basically unchanged (for overviews, see van de Wijngaart 1988, 1990, 1991, Reuter 1988, Engelsman 1989, Leuw 1991, Leuw and Marshall 1994; refer also to the helpful bibliography on cannabis regulation that is provided by Nadelmann et al. 1999).

What is "the Dutch Model"?

In many respects, Dutch drug policy is indistinguishable from those of other countries. As a party to the three major United Nations drug control conventions, the Netherlands has taken steps to control illicit drug trafficking and to create penal offences under its domestic law for unauthorised possession of illicit drugs. Specifically in relation to cannabis, there is strict enforcement of the law relating to drug traffickers and people who possess and/or attempt to grow large amounts of cannabis for commercial supply. During the ten-year period between 1986 and 1995, for example, Dutch interdiction efforts accounted for an average of 30 per cent of all cannabis seized by European Union (EU) countries, reaching a peak of 46 per cent of all EU seizures - a staggering 332 tonnes of cannabis - during 1995 (EMCDDA 1997: 35).

The distinctive aspects of Dutch drug policy are based upon its differentiation of drug-related risks. This approach followed the recommendations of a Working Group on Narcotics Drugs - the Baan Committee - whose 1972 report concluded that policies should be based on the relative risk involved in drug use, noting the inherent harmfulness of the drug itself, but also taking into account the social background of the user, the circumstances in which the use occurs, and the motivations for and expectations of using the drug. The Baan Committee's review of the medical, pharmacological and socio-psychological data on different types of drug use, which were then ranked according to a risk scale, formed the basis of revisions to the Dutch Opium Act in 1976. The new Act distinguished between "drugs which present an unacceptable risk" ("hard drugs" such as heroin, cocaine, LSD, amphetamines and cannabis oil) and hemp products (the "soft drugs" hashish and marijuana), with less severe penalties for offences involving soft drugs. The Act also sought to distinguish between drug users and drug traffickers, with stricter penalties for offences where drugs were possessed for commercial purposes than for offences involving drug possession for personal use.

One of the most important goals of this differentiation was to try and separate the market for hard drugs from the market for soft drugs, so that people who wish to buy soft drugs are not forced into the illicit world of the black market where hard drugs are sold, thus lessening the risk of drug use "graduation" (see Leuw 1994). Also behind this bifurcation policy was a belief in the criminal law's inability to deter drug use (Reuter 1987). Pessimism about the law's prospects of deterring drug use was balanced by cautious optimism about the possibility of integrating drug users within Dutch society, and reaching them with prevention and treatment initiatives. As the Baan Committee's report stated (1972: 68, 66): "[While] a penal law approach to drug users is inadequate ... socially integrated use of drugs may be possible ... This does not mean that no risks are involved, but that those risks could be acceptable".

The lever which allows Dutch authorities to pursue this stated aim of social integration is the expediency principle which exists in the Dutch penal code, combined with the central role of the Public Prosecutor within the Dutch criminal justice process (which van Dijk [1983] colourfully terms the "spider in the web"). The expediency principle allows the Public Prosecutor to refrain from prosecuting certain types of offences if judged to be in the public interest. Consequently, the actual mechanics of "the Dutch model" are not found in the Opium Act itself, but in policy guidelines for the investigation and prosecution of Opium Act offences that are issued by the Office of Public Prosecutors. These guidelines, the most recent of which were issued in October 1996 (College van Procureurs-Generaal 1996), effectively bridge the gap between "law-on-the-books" and "law-in-action" which is such a striking feature of the Dutch model (Silvis 1994). The guidelines provide a practical synthesis of the legal provisions of the Opium Act and the normative provisions of the government's drug policy, as spelt out in its 1995 White Paper, Drugs Policy in the Netherlands: Continuity and Change (Ministry of Foreign Affairs et al. 1995; for useful summaries of this document, see Cramer 1997, Trimbos Institute 1997; for a critical view, refer to Maris 1996a, 1996b). The net effect is unlikely to fully satisfy either legal positivists or legal realists, but it does offer a benchmark for national consistency in the application of police and prosecutorial discretion vis-a-vis cannabis offences.

Investigation and Prosecution of Drug Offences

Broadly speaking, Dutch criminal justice, penal and policing policy have been designed, as far as possible, to avoid social exclusion and stigmatisation of drug users, and to encourage instead their social integration and normalisation (e.g. Downes 1982, 1988). One of the practical implications of this design has been the deliberate development of "free zones" where open trade in and use of drugs is allowed to occur without police intervention, provided that such drug-related activities do not cause a public nuisance. (Of course, equivalent free zones are known to exist in a number of countries, especially in large cities like Hamburg, however not all are officially sanctioned and many simply develop by default and are then tolerated by authorities.) This is a radically different role than is usually attributed to law enforcement interventions in a culture where "tough on drugs" rhetoric predominates. However, it fits with the ideology of the Dutch liberal state, the founder of which, J.R. Thorbecke, once announced: "we wish a police force that is seen as little as possible and about which as little as possible is said" (quoted in Punch 1983: 14).

One of the "prices" to be paid for accepting such free zones is the visibility of an open drug-using scene in parts of downtown Amsterdam and some other Dutch cities. According to a key Ministry of Justice official:

Normally, people using drugs are left undisturbed by patrolling policemen. The policing of the retail (street) market in the Amsterdam free zone is somewhat less tolerant. If the policemen on patrol bump into a street dealer of hard drugs involved in transactions they will probably arrest him. On the other hand, if they spot, some 50 yards ahead, a typical volatile gathering of junkies where drug transactions can easily be expected to take place, foot patrolling policemen will usually not increase their pace. The crowd will respond to the approaching law, however, by calmly dispersing in different directions, away from the policemen. (Leuw 1995: 43) In cases where the police decide to investigate and prosecute people for cannabis offences, a penalty tariff is set out in the detailed guidelines issued by the Office of Public Prosecutors (see Table 1).

Table 1 Dutch Prosecution Guidelines for Penalties Involving Cannabis Offences

Amount of cannabis Penalty imposed Possession/Supply 100 kgs 1 to 2 years imprisonment plus...