In an era that is often characterized as one of a growing isomorphism of the laws and procedures governing criminal activities in different countries, the issue area of cannabis policy undergoes processes of fragmentation and polarization. Some countries continue to criminalize all forms of medical and recreational uses of cannabis. Others have sought to “separate the market” for cannabis from that of other drugs by decriminalizing the possession of small amounts of marijuana,authorizing its use for medical purposes, and establishing administrative measures for taxing and regulating the commercial sale of the drug. These reforms have gained international momentum despite resistance from key actors in the international drug control system, including the International Narcotic Control Board and the US federal government. The proliferation of cannabis liberalization reform is frequently depicted as a historical step toward the collapse not only of this TLO but of the entire edifice of the international narcotic control system of which it forms a part. How deep is the current crisis of the cannabis prohibition TLO? What are its causes and consequences? What does this case study reveal about the conditions under which criminal justice TLOs rise and fall? In this Article, I explore these questions to demonstrate the complex ways in which the cannabis prohibition TLO has served as a battleground between competing conceptions of the role of criminal law in addressing social and medical harms. Drawing on TLO theory, the Article shows that the capacity of the cannabis prohibition TLO to regulate the practices of legal actors at the international, national, bud drying system and local levels has been eroded as a result of effective contestations of the input and output legitimacy of its governance endeavors.
The rapid and widespread diffusion of new models of decriminalization, depenalization, and legalization has relied on the operation of mechanisms of recursive transnational lawmaking. These mechanisms originate from the indeterminacy of drug prohibition norms, the ideological contradictions between competing interpretations of their meaning, the impact of diagnostic struggles over the social issues that the international drug control system should address, and the mismatch between the actors shaping formal prohibition norms at the international level and those implementing these norms in national and local contexts. However, our analysis also shows that the cannabis prohibition TLO creates path-dependent trajectories that constrain the development of non-punitive strategies for regulating cannabis markets. In this context, the Article explains why it is too early to sound the death knell for the prohibitionist agenda of cannabis control. The dense array of UN treaties, transnational and regional monitoring schemes, national laws, and local enforcement arrangements put in place throughout the institutionalization of the cannabis prohibition TLO impede efforts to initiate more progressive regulatory innovations in this field. The Article is organized as follows: Section I briefly introduces the historical formation of the international legal framework governing cannabis regulations. Italso identifies the inherent ambiguities giving rise to interpretive disagreements regarding the scope of application of cannabis prohibition norms. Section II examines the debates that evolved during the 1960s–70s regarding the criminological logic of drug prohibition policies and the cannabis liberalization reforms shaped by these debates.
It then considers the processes leading to the reversal of these liberalizing trends and the extensive institutionalization of new measures reinforcing strict interpretations of the prohibition norms enshrined in the international treaties. Section III discusses the causes and consequences of the legitimation crisis that the cannabis prohibition TLO has experienced since the mid- 1990s as well as the global wave of depenalization, decriminalization, and legalization reforms precipitated by this crisis. Section IV considers the extent to which this wave of cannabis liberalization reform lessens the impact of the prohibitionist approach on the development of cannabis regulations at the international, national, and local levels.Cannabis prohibition laws were initially established in the late nineteenth and early twentieth centuries through disparate national drug control initiatives. Over the course of the nineteenth century, cannabis medical uses were regulated in a patchwork manner as part of wider legal frameworks governing the production and sale of pharmaceuticals. In the US, cannabis use began to be perceived as a social problem that should be a subject of criminal regulation during the Progressive Era. This criminalization campaign was inspired by the legislative inroads made by the temperance movement during that period and by awakening nativist sentiments toward incoming Mexican migrants, whose habits of marijuana smoking became major objects of media attention and public anxiety.15In 1915, California introduced the nation’s first anti-marijuana criminal prohibition.
Three decades later, such prohibitions appeared in the statute books of forty-six states and a series of marijuana-related federal offenses were included in the Marijuana Tax Act of 1937. An earlier international drug convention, signed at The Hague in 1912, focused on regulating opium, morphine, and cocaine and did not include implementation mechanisms. Under the League’s auspices, new requirements concerning the regulation of medical and non-medical uses of cannabis were introduced at the 1925 International Opium Convention. However,the pre-UN frameworks of international drug control did not place emphasis on the use of punitive measures to regulate cannabis or other psychoactive substances. Although the US had strongly advocated the introduction of a strict prohibitionist approach, this position was met with resistance from European colonial powers that had significant financial interests in the production of opium and coca and the manufacturing of their derivatives. In the absence of an international consensus regarding the need to strengthen the criminal regulation of illicit drug use, the preUN drug control framework focused on the development of administrative measures to govern cross-border commodity flows and to encourage a more effective domestic regulation of local drug markets. Following WWII, the growing capacity of the US to shape the rules and institutions of the international drug control system facilitated the move of the prohibitionist approach from the periphery to the center of the policy agenda. To a considerable extent, the institutionalization of the cannabis prohibition TLO provides a paradigmatic example of what has been usefully conceptualized as “globalized localism”—a process by which policy models that originated in the distinctive cultural and institutional contexts of a powerful country come to be perceived as global standards due to their inclusion in treaties, diagnostic indicators, interpretive guidelines, and other instruments of transnational legal diffusion. The introduction of the Single Convention on Narcotic Drugs in 1961 served as an important milestone in this process. The Convention frames the issue of drug use as a moral problem, stating in its preamble that “addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind.” In line with this moralizing framing, commercial grow room the Convention requires signatory countries to criminalize a wide range of drug-related activities.The two subsequent UN drug conventions adopted in 1971 and 1988 sought to extend the application of the prohibitionist approach to new contexts of drugregulation. Responding to the increasing production and use of synthetic drugs as part of the rise of the counter-cultural movements of the late 1960s, the 1971 Psychotropic Drug Treaty applied these policy principles to synthetic psychoactive drugs, such as opioids and amphetamine-type stimulants. The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances further expanded the array of criminal justice enforcement measures states are required to adopt. Importantly, however, the mandatory criminalization norms established by the UN drug conventions are defined in a manner that leaves two major sources of textual ambiguity regarding their scope of application. First, the conventions deliberately refrain from providing a definition of what constitutes medical and scientific uses of drugs. Second, they clarify that countries should implement the duty to criminalize drug-related activities in accordance with their domestic constitutional principles. As is often the case, these two provisions are products of efforts to paper over divergent policy preferences.
During the negotiations of the Single Convention, several countries objected to banning certain drugs that have traditional and quasi-medical uses among indigenous populations. India, for example, expressed concerns regarding the implied need to criminalize traditional uses of bhang, which is made from cannabis leaves with a low Tetrahydrocannabinol content. Other countries emphasized the need to retain interpretive flexibility in light of the possibility that future research would reveal new medical benefits. The resulting compromise encouraged countries that would not have otherwise supported the prohibitionist principles set by the treaties to come on board. However, this compromise also sowed the seeds of later controversies regarding the ways in which cannabis prohibition norms should be applied. As the following discussion shows, these controversies will set recursive processes of transnational legal change in motion, leading to the settling and unsettling of specific interpretations of the scope and meaning of these norms. It is an irony of history that the first decade following the entry into force of the Single Convention experienced a marked increase in the prevalence of cannabis use in Western countries. When the Single Convention was signed in 1961, cannabis use was particularly prevalent in developing countries where the plant was traditionally cultivated, while it had little impact on mainstream culture in North America and Europe. By the end of the decade, the drug acquired unprecedented political salience not only in light of objective increases in the prevalence of its use but also due to its symbolic association with emerging countercultures and the perceived threat they putatively posed to public morality. These dramatic changes intensified the enforcement of cannabis offenses, but they also attracted heightened public attention to the negative consequences of such enforcement efforts. In the late 1960s, there was an historical increase in the rates of arrests, prosecutions, and convictions of cannabis users in various Western countries. The magnitude of this change was most remarkable in the US. In California, for example, the number of people arrested for marijuana offenses increased from about 5,000 in 1960 to 37,514 in 1967. Arrests for cannabis possession became increasingly common in countries such as Germany, the Netherlands, and Canada as well. The civil rights implications of these increased levels of drug law enforcement generated vigorous public debate on the justifications of treating cannabis on par with other psychoactive substances that are widely perceived to be more dangerous and harmful. Disagreements regarding whether cannabis should be classified under the strictest schedules of the UN drug control treaties were already evident during the Plenipotentiary Conference, which drafted the Single Convention However, it was only as a result of the increased enforcement of cannabis prohibitions that such disagreements precipitated domestic forms of political and legal resistance. Due to increasing public criticism, national governments in several countries appointed public committees to consider the effectiveness of the existing laws. These committees directed strong criticism towards the criminological and medical underpinnings of the prohibitionist approach and sided with proponents of the decriminalization of mild forms of cannabis use.Broadly similar conclusions were reached by other committees operating in the Netherlands , Canada , and Australia . In the US, the public debate that followed President Nixon’s famous identification of drug abuse as “America’s public enemy number one” led to the nomination of the National Commission on Marihuana and Drug Abuse . To the surprise of many, the Commission’s 1972 Report, entitled Marihuana: A Signal of Misunderstanding, concurred with the liberal approach endorsed by other national investigation committees. While the Commission emphasized that cannabis was not a harmless substance, it stressed that its dangers had often been overstated. It advocated repealing the criminal prohibitions on the possession of small amounts of marijuana and establishing alternative measures to address the public health concerns associated with cannabis use. Such reforms, the Commission stated, are needed to relieve “the law enforcement community of the responsibility for enforcing a law of questionable utility, and one which they cannot fully enforce.” These recommendations were repudiated by the Nixon administration, but they inspired grassroots activists to mobilize cannabis liberalization reforms at the state and local levels. In 1973, Oregon became the first state that decriminalized the possession of small amounts of marijuana. Eleven states followed suit during the next half of the decade. The failure of the US national administration to secure the compliance of state governments with the prohibitionist norms it sought to propagate internationally provided a clear indication of the decline of the cannabis prohibition TLO.