Niall Neligan (Barrister, Lecturer, Advisory Board Member, INCBA)
The War on Drugs
Law and order were a central part of Richard Nixon's 1968 election manifesto. In 1970, his administration introduced the Comprehensive Drug Abuse Prevention and Control Act, better known as the ‘Controlled Substances Act. The Act which came into force in May 1971 proved controversial, cannabis was placed in the 1st Schedule, a category reserved for the most serious drugs including Heroin.
Six weeks after the passing of the Controlled Substances Act - Nixon in a now infamous press conference declared ‘America’s number 1 public enemy is drug addiction. He never in fact used the expression War on Drugs - this was coined by the media later.
Nixon’s tough on-drugs populism had little to do with medical science or the risks associated with drug use, the motive was entirely political from the outset. The Controlled Substances Act was conceived as a stick to beat political opponents, a fact later accepted by John Ehrlichman in an interview with Dan Baum for Harper’s magazine in 1994.
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.”
The War on Drugs and the sinister way in which it was used to target political opponents became a bedrock of the social conservative movement in the west and right-wing populists elsewhere resulting in the disproportionate imprisonment of ethnic minorities in the United States and appalling human rights violations in places such as Mexico, China, Columbia, Myanmar, Russia, Afghanistan, Malaysia, Singapore and the Middle East.
The Anthropology of cannabis use
Now that I have set out the historical background of cannabis prohibition, it is useful to examine the anthropological perspectives on human cannabis use through time.
In the 250,000 years since our species, homo sapiens evolved on the plains of Africa, and in the 70,000 years since the great migration commenced, humans have used plants such as cannabis for clothing, materials, food, medicine and as an intoxicant for religious, spiritual and social purposes. It is arguable, that without plants such as feral cannabis, humans would not have evolved and survived as a species.
No one knows when humans first used feral cannabis which grew in the wild, but we do know when it was first domesticated. Until quite recently, it was assumed that cannabis is native to central Asia, however recent research in the peer-reviewed Science Advances (published by the American Association for the Advancement of Sciences) points to domestication in China from feral plants (basal cannabis) 12,000 years ago. Whilst the fibrous use of the plant can be traced that far back, evidence of ritualist use of the plant and its intoxicating effect goes back at least neolithic times if not earlier.
To put this in context, international controls on cannabis have been with us for less than a century, whilst the multi-purpose use of the plant stretches back to the Paleolithic times when cannabis was amongst the first crops to be successfully cultivated by our ancestors.
Importantly and this should not be forgotten, it was an Irish physician by the name of Sir William Brooke-O'Shaughnessy back in the 19th century who pioneered research into the therapeutic use of cannabis and popularised its use in western medicine. By the turn of the 20th century, cannabis-based medicines were used by physicians across Europe and North America to treat a variety of ailments including seizures and rheumatism.
From curiosity to research into the regulation of cannabis.
Over the last eight years, I have continued with my academic research and had the opportunity to liaise with professionals working in the regulated cannabis industry in North America and the emerging industry in Europe. During that time, I have contributed to the ongoing debate to regulate cannabis for both medical and non-medical adult use in Ireland and elsewhere. I should say again, less there's any misunderstanding, I am not an advocate for use, rather I am an advocate for law reform and regulation seeing the latter as the best approach to tackling the proliferation of illicit cannabis on the black market that places patients and consumers in harm's way.
I, like so many who have taken the time to learn from the medical experts in the field, recognise the therapeutic use of regulated cannabis for medical conditions such as severe refractory epilepsy, multiple sclerosis, chemotherapy-induced nausea and vomiting and chronic pain. On the other hand, I support the political, economic, social as well as common sense argument to regulate cannabis for non-medical adult use. The reasons to regulate are manifold, but to summarise let me point out what is obvious to many who have taken the time to research the matter in depth.
What we have under international law and corresponding domestic legislation is the prohibition of cannabis for non-medical or scientific use. This has given rise to an unregulated illicit market, which affords no protection to those adults who choose to use, and patients with chronic pain who are self-medicating because they're excluded from Ireland's limited Medical Cannabis Access Programme. (MCAP)
Under prohibition, as it exists within Irish law, non-medical use consumers can only purchase cannabis from the black market. For medical patients, the situation is slightly different. Patients who fall outside the scope of MCAP (via the medium of a prescribing consultant) can apply for a licence from the Department of Health under the Misuse of Drugs Acts and accompanying regulations; a process which by its nature is notoriously slow and not guaranteed to result in success.
The alternative to obtaining a license is to move to a jurisdiction which allows medical prescription, (which is beyond the means of most patients) or buy cannabis on the black market. Given this Hobson choice, many patients without the economic means to travel and fearful of prosecution for possession or cultivation, go without. Others out of desperation run the gauntlet and purchase on the black market.
The problem with acquiring cannabis from the black market is obvious. Firstly, the consumer or patient has no idea what they're getting, no knowledge of its potency, if it's natural cannabis or just hemp sprayed with synthetic cannabinoids. The latter of course exposes the user to serious harm, which has been well documented.
Indeed much of the harms touted by those who favour prohibition stems from the existence of the unregulated market in synthetic cannabinoids (such as K2 or Spice) produced in backstreet laboratories. Put simply, in the absence of regulated cannabis to service a market we know exists, criminal gangs will supply the most potent and cheapest alternative.
Prohibition has created the circumstances under which the cultivation, production, distribution and sale of cannabis and cannabis-based products have been outsourced predominantly to organised criminal gangs. Quite obviously, no drug is made safer in the hands of criminals whose nefarious motive is to enjoy the supernormal profits which can be earned on the black market, irrespective of the cost to the individual who for whatever reason, be it enjoyment or self-medication choose to consume.
A rational approach to drug usage is if you don't need something - don't use it, however, humans are by their nature irrational especially when it comes to intoxicants like alcohol. Consequently, if the rather naive and somewhat laudable goal of prohibition was the elimination of non-medical and non-scientific use of cannabis, then it has failed spectacularly in the same manner as the experiment with alcohol prohibition did in America between 1919-1933.
Like alcohol prohibition, the law of unintended consequence followed the prohibition of narcotics, such as the syndication and globalisation of organised crime, the proliferation of substandard products, and an increase in consumption notwithstanding the penalties imposed. The evidence of which is there, for all to see.
During alcohol prohibition, low potency beverages such as beer were displaced from the market and replaced with highly potent spirits which were not only cheaper to produce but less expensive to transport. More seriously, industrial alcohols which were poisonous were sold to unsuspecting buyers resulting in the deaths of at least 50,000 people and causing serious injury to many more. To put it simply, prohibition does not make the drug weaker, it makes them stronger, and the pattern of increased potency first observed under alcohol prohibition has replicated itself under cannabis prohibition.
Whereas no one has ever died from ingesting natural cannabis, the same cannot be said for dangerous synthetic opioids such as fentanyl which criminal gangs routinely add to heroin and which has contributed in no small part to the deaths of at least 56,000 Americans in 2020 alone.
Here lies the nub of the issue for patients suffering from chronic pain. Cannabis and cannabinoids have therapeutic use which is less harmful and does not cause fatalities like synthetic opioids. Patients in states where cannabis is available for medical use are being migrated away from dangerously addictive opioids toward non-addictive and less harmful cannabinoid-based medicines.
The Economic case for regulating cannabis.
Aside from the social and health reasons to end prohibition, there's a strong strong economic case for regulating cannabis. Consider the following, since the opening of the regulated market by Colorado in 2014, the state has generated $2.2 Billion in additional tax revenue of which $620 million has been invested in public education. During the same time, the Irish government generated €0.00 from prohibition. In fact, prohibition costs the Irish taxpayer hundreds of millions of euros each year in terms of policing, court time, imprisonment etc.
According to a Freedom of Information request made by Crainn, an Irish drug policy advocacy group, the Department of Justice disclosed that based on 2017 figures, approximately €46 million was spent by the Gardai on 17,000 drug prosecutions. 71% of those prosecutions were for simple possession, namely 12,070 cases which had an average cost to the taxpayer of €2,900 per case.
The economic case for regulation I set out in some detail in a recent podcast interview with David McWilliams, the well-known Irish economist and author and therefore won't repeat all the facts and figures here. If you want to get a full understanding of the economic costs of prohibition and the benefits of regulation you can listen back to the episode here.
Decriminalisation doesn't work for cannabis, regulation is the solution.
There is one point I wish to make, and this relates to a suggestion made by drug policy advocates on the left who suggest the government should decriminalise cannabis first.
Let me be clear, I am not a fan of decriminalisation when it comes to cannabis.
Decriminalisation is 'prohibition-light', it allows the consumer to possess, what the market is prohibited by law from selling. In many ways, it is identical to the failed policy of alcohol prohibition in the United States during the 1920s. It's also the policy that was adopted by the Netherlands for soft drugs like cannabis under the revised Opium Act 1976 that hasn't removed organised crime from the equation.
If the goal is to remove organised crime and illicit products from the market and protect public health, then decriminalisation is not the way to go about it. The correct policy decision is to regulate cannabis and if you want to know why, may I suggest you take the time to read through the excellent guide on How to Regulate Cannabis published by the Transform Drug Policy Foundation?
Writing to the Minister.
Having carried out research into the field of Drug Policy Law Reform and Cannabis Regulation over the last seven years, and noting the developments in other jurisdictions - I felt it was time to write to the Irish Minister for Health on the subject. I asked the Minister to strongly consider the establishment of a task force, the establishment of which is not an endorsement of cannabis for adult use but a legitimate enquiry into the nature of regulatory models adopted by other jurisdictions and preparation - should this government or some future administration proceed down this road.
Let me say at this juncture, I am not so naive to think that a mere letter will change the socially conservative nature of the department when it comes to drug policy. However, in the absence of forward-thinking on the subject of cannabis regulation within the government, I thought it useful to request at the very least the establishment of a task force to investigate and explore pathways toward regulation. This request is not unreasonable and does not amount to a change in government policy, rather it allows the department to at least hear from those who have first hand experience of how regulation works. Currently, the department's view of cannabis is somewhat coloured by the opinions of social conservatives who wish to maintain the failed policy of prohibition, irrespective of the cost to the taxpayer and society in general.
In my letter, I set out the objective of the task force (similar to the Canadian task force on Legalisation and Regulation of Cannabis) would be the following:
(1) Identify models of best international practice in the regulation of cannabis for non-medical adult use.
(2) Take a health-led approach to regulate cannabis for adult use.
(3) Place child protection at the centre of any model for the regulation of cannabis for non-medical use.
(4) Ensure harm reduction is central to any model for the regulation of cannabis for adult use.
(5) Design a world-class framework for the regulation of cannabis for adult use with the objective of achieving the following key goals:
(a) The reduction and the eventual elimination (as far as practicable) of the unregulated illicit market in cannabis and cannabis-based products.
(b) The removal and the eventual elimination of OCGs from the supply chain of cannabis and cannabis-based products.
(c) Provide for equitable social inclusion in the licensing process should the Government adopt a working model for regulation of cannabis for adult use.
(d) Ensure the existing hemp community has input into the creation of the model for regulating cannabis for non-medical adult use and is a party to the benefits which accrue from the elimination of the unregulated illicit market.
(e) Provide the necessary training, and financial and enterprise support for individuals who wish to enter and participate in the regulated market for adult-use cannabis.
(6) Report back to the Minister within a period of six to nine months with a detailed plan and model for the regulation of cannabis for adult use.
The reply which I received from the department was a blithe commitment to the National Drug Strategy and the recommendations of the Report of the Working Group to Consider Alternative Approaches to the Possession of Drugs for Personal Use.
According to the reply I received, the department said the following:
"The working group examined the option of decriminalising drugs. The report did not deem this an appropriate option in the Irish context due to legal difficulties (which could lead to the de facto legalisation of drugs), and operational problems for An Garda Síochána. The Government accepted the views of the working group on the decriminalisation of drugs. Accordingly, there are no plans to decriminalise drugs, including cannabis. In line with the working group’s recommendations, the Government agreed a health-led approach to the possession of drugs for personal use. This approach will connect people who use drugs with health services and a pathway to recovery, avoiding a criminal conviction, which can have far-reaching consequences for people, particularly younger people."
Suffice it to say, my letter to the Minister had nothing to do with the subject of decriminalisation, rather as I have already mentioned, my request concerned the establishment of a task force to enquire into pathways toward the regulation of cannabis. In which case, this is not at variance with the National Drug Strategy, rather it is in aid of it? That is if you accept that regulation of cannabis is designed to reduce the harms associated with the unregulated illicit market controlled by organised crime and the harms to society which flow from that. In other words, the regulation of cannabis is a health-led approach toward drug usage, not the opposite.
In my reply to the Minister, I drew his attention to the recent high-level consultation on the regulation of cannabis for non-medical and non-scientific uses between the Federal Republic of Germany, Luxembourg and Malta, which took place on the 15th of July last.
At the conclusion of this meeting, a joint communication was issued by the respective ministers present, a copy of which was forwarded to the health departments of each respective member state including Ireland.
I further drew the Minister's attention to the following paragraph.
"There is a need to re-assess our policies on cannabis and to take into account recent developments in this area, to further strengthen and develop health and social responses, such as prevention programs, treatment and harm reduction interventions and to find new approaches beyond prohibition based drug policies."
The signatories to the statement have committed to the following:
"a structured multilateral exchange on the vast spectrum of cannabis-related issues contributes to sharing knowledge, best practices and experiences and foster finding solutions including possible regulation in order to move forward, as the status quo is not a tenable option."
The nature of the statement acknowledges the health-led approaches taken by member states of the European Union towards drug usage (in line with the EU Drug Strategy 2021-2025), and the desire to reduce the harms associated with the same.
Importantly, the statement acknowledges implicitly the challenges posed to member states by the unregulated illicit market in cannabis, the emergence of high potency THC products and worse, synthetic cannabinoids supplied predominantly by cross-border organised criminal cartels.
In light of the above, I cannot see how the department is in any way prejudiced in establishing a further ministerial task force to enquire into the regulation of cannabis for non-medical and non-scientific use if the purpose of the said task force is in aid of the stated goals of
The National Drug Strategy
The European Drug Strategy (2021-2025)
I believe it is incumbent upon the department to aid and assist its long-term partners in the EU (Germany, Luxembourg and Malta) in their ongoing enquiries in this field. I concluded my reply to the Minister by observing that the establishment of a task force would augment the national drug strategy with an evidence-based approach to cannabis usage in jurisdictions that have regulated non-medical and non-scientific use.
Conclusion
We are fast-approaching a turning point in the regulation of cannabis for adult use, not just at the Federal level in the United States but also within the European Union. Germany will regulate in 2023, other member states of the European Union will follow suit. Five years from now, France, Spain, Italy and Portugal will have regulated markets in cannabis. The question is, where this leaves a small country such as Ireland? As I am apt to say, theregulation of cannabis is inevitable. It is no longer a question of whether Ireland regulates cannabis for adult use, it is now a question of when and how? Delay, which is something Irish governments routinely engage in, is not an option, especially when our partner states within the EU are moving forward.
Delay - for what it's worth - has a cost both to the taxpayer and to public health; and this begs the question, should we continue to foot the bill for prohibition when there's a reasonable alternative that works? Finally, I will conclude by saying the arc of history is long but it bends towards justice. Regulation of cannabis is just and equitable, prohibition as an alternative is not. As every student of jurisprudence learns, justice delayed is justice denied. It is time for the Minister to establish a task force to investigate pathways toward the regulation of cannabis for adult use and to do so without any further delay.
Niall Neligan is a Barrister and Lecturer in Law at Technological University Dublin. He is co-author of "Evidence" published by Thomson-Reuters. His research field is Drug Policy Law Reform and Cannabis Regulation. Since 2021, he has been a member of the advisory board of the International Cannabis Bar Association.