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Intersections of Anthropology and Law in the Cannabis Area PDF Print E-mail
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Books - Cannabis and Culture
Written by John Kaplan   
Thursday, 08 September 2011 00:00


The article is concerned with the questions of how knowledge about marihuana is used in the formulation of public policy and how public policy affects the behavior of indi-viduals. Elite opinion tends to be sluggish in changing its views in response to new information and opinions of the elite in turn may exercise important influences on public policy.

Before I move on to the body of my talk let me cover one side point. A number of people have suggested that it is important to determine just how many different species of cannabis there are. To my mind, if it turns out there is more than one species, it will be a matter of interest primarily to textbook publishers, who will have another excuse to put out new edi-tions and to legislative draftsmen, who will have to substitute a more general term wherever Cannabis sativa (which we had thought was the only species) appears in the statutes.

Some states, although not all, will have to change their laws so that they comprehend any plant of the genus Cannabis. Hopefully, the practical effect of this will be to force many legislatures to rethink the cannabis laws a little earlier than might otherwise be the case. In the meantime, if mari-huana offenders have to be released in some states because of the wordings of their statutes, that certainly does not disturb me. On the other hand, we should not exaggerate the importance of such an event. After all, the federal government was without a marihuana possession law for over a year when the Supreme Court, for technical reasons, declared the existing laws unconstitutional. Then, although this state of affairs was not appa-rently harming the body politic, Congress passed a new law — which avoided the technicality. Similarly, the state of Michigan was without a cannabis law for a while and, though nothing untoward seems to have happened there either, a new law was passed. So, at least from a long term perspective, the botanical issue is not very important.

What I would like to talk to you about is more in the mainstream of an-thropology and touches very directly upon my own field of law. There are two questions I want to pose. First, how does information — for instance, knowledge about marihuana get used in the formulation of public policy? And second, how does public policy, the law, affect the behavior of individuals? You can see that these are two very different questions. Both of them are fascinating and each involves different aspects of the in-tersection of anthropology and law. I can just hit at the high spots in what I confess will be in an opinionated fashion. There may be people outraged by various things I say, but time does not permit me to be more temperate.

Starting with the problem of transforming knowledge into policy, I find it extremely interesting that when government commissions study marihu-ana, they study all kinds of facts and theories, but one thing they do not study is what has happened to the reports of previous commissions. To me, this oversight suggests a rather curious indifference to whether com-mission reports will have any effect upon law.

I am not denying that there is some relationship between what the com-mission recommends and what it thinks can be adopted. Obviously, there is. For instance, I am confident that there are members of both the Ameri-can and the Canadian commissions who thought to themselves, "Well, what we probably ought to do is just license the sale of the stuff. But if we said that, nobody would pay any attention to anything else we had to say. We'd be too far ahead of the public."

For my own part, though, I can't believe that this amount of reflection on the issue is sufficient. I should know, too, because the very first commission to study marihuana since La Guardia's time was not the Wooton Commission in England, nor the Le Dain Commission in Canada, nor the Commission on Marihuana and Drug Use in the United States, it was California's Joint Legislative Commission to Revise the Penal Code. It became crystal clear to all the law professors who were the reporters for that commission that the sensible thing for the society to do was to license the sale of marihuana with appropriate controls. We felt that way primari-ly because of the associated harms that arise from making the traffic ille-gal : it alienates young people and members of certain ethnic groups by turning them into instant "criminals," ; it creates massive profits for the real criminals ; it allows marihuana to be a sort of "loss-leader" for the drug culture, and so on. Although the best solution was clear to us, it was also clear that if we recommended licensing, we, the reporters, would be fired, and nobody would pay attention to anything we had said. As a result, we recommended decriminalization — exactly what both the Canadian and American commissions recommended, five years later. And what hap-pened? We were fired and nobody paid any attention to what we said. Not only that but all the other works of the California Joint Legislative Commission, for all practical purposes, disappeared from the face of the earth.

Now somebody should have learned something from that. It's true, of course, that the Le Dain Commission and the Presidential Commission made the same compromise later on and managed not to get fired. On the other hand, they weren't all that effective, either. I would have expected them to at least call in a consultant — a sociologist, maybe — and say to him:

Tell us how we can maximize our effectiveness. Don't tell us what to say. Just tell us, as best you can, what will happen if we recommend X and what will happen if we recommend Y.

That's all. It would have been so simple. But somehow commissions never seem to think that way.

Another interesting thing about marihuana commissions is that the pub-lic's outlook influences not only what the commissions recommend once they are appointed, but often also who gets appointed to the commissions in the first place. It has been suggested that most of the members of the Commission in the United States were chosen precisely because they were known quantities, with their minds already made up. That's an extreme position, perhaps, but frankly, if you look at the people the President ap-pointed to the Marihuana Commission, it's clear that he did his very best to stack it. Of the three psychiatrists he appointed, two were known for their outspoken anti-marihuana positions, and the third — although he hadn't really announced either way — was known for a widely quoted article he had written concerning — and exaggerating — the dangers of marihuana. In addition, the pharmacologist on the commission had ex-pressed himself quite strongly against relaxation of the marihuana laws. Where the President made his mistake was in not realizing that these people, although biased, were nonetheless honest and intelligent.

In any event, at least half the people appointed to the United States Commission had to totally reevaluate their positions. They were not coming to the problem with open minds, and it must have been pretty difficult for them to go back on what they had previously said. But to a considerable extent they finally did.

As I hope I have suggested, the problem of translating information into public policy is an extremely interesting and important one, which far transcends the marihuana issue itself. Generally speaking, it doesn't make sense to recommend things that the public is violently against. And in a democracy, at least on issues which tend to polarize people, it may not even make sense to recommend something which a vocal minority is against. Public officials have to get elected. Look what happens to politi-cians who come out strongly for gun control — even though, so far as we can tell, a majority of Americans are in favor of it.

While we're talking about public attitudes as one of the variables which mediate between information and public policy, I might mention another factor that is at least arguably as important, namely, elite attitudes. I will return to this later, in a different context, but for now I want to disavow any intention to pass judgment on the relative merits of elite attitudes and public attitudes. Indeed, one really striking thing is that both public atti-tudes and elite attitudes in various areas can be, by any standards, incred-ibly wrong. We have heard that there are psychiatrists in Colombia who are treating marihuana users with shock treatments. What more can I say? I don't doubt that most of them are acting, or shocking, in perfectly good faith. But if they did that in the United States, they would be slapped with suits for malpractice so quickly that they wouldn't even have time to transfer their assets to their wives.

Now it is understandable that elites may initially base their attitudes on incomplete information. The question, however, is how is it that they, who are supposed to have access to all the latest and best knowledge in any area, can often stay so wrong for such a long time? And the marihuana issue is only the most obvious example of this.

Obviously, part of the answer is simply human inertia. But a significant part also, I think, has to do with power relationships in the society, Often an elite will have a vested interest — not just a material interest, but per-haps more important, a prestige interest in maintaining positions that they have taken earlier. In some sense, admitting that they were wrong about something, even if reasonably wrong, calls into question their entire capacity to govern. It may be hard to adopt a new position on marihuana when your statements five years ago are on record. And if you do change your position, you may worry that people will question your right to gov-ern a society if you can be that wrong about something

Now clearly this goes to very sensitive questions about the distribution of power in a society. And I really believe that some of the things members of even the most august commissions do are explicable only in these terms. Their actions are, I think, intimately connected with the problems of both inertia and power. Indeed, a couple of the things both the Le Dain Commission and the United States Commission said are fascinating to me precisely because they are so obviously wrongheaded that they can be explained only on those grounds. For instance, both commissions told us that marihuana might be a fad and just go away, and that therefore we shouldn't do anything too drastic now to make the drug more available through legal channels. Well, I invite you to look at the data showing, for example, that 50% of marihuana users say its use improves sexual enjoyment. If marihuana is as much of a fad as sex is, it's not going to go away. And, basing a public policy on the idea that it may go away seems to me just very wrongheaded.

Or take a second pronouncement by the commissions. They claim — with more hope than conviction, I think — that doing away with the penalty for possession will allow police to focus more on trafficking. If you know anything about law enforcement, you should know that that's just not true. When the legislature does away with the penalties for pos-session, it de-escalates the whole problem. The police have more time, to be sure, but they don't devote it to trafficking. What they do is to try to cut down on burglaries, armed robberies, rapes — in short, to deal with the problem of violent crime. To my mind, that is a much more sensible use of police time. There is not a shred of evidence to prove that if we do away with penalties for possession, the police will pay more attention to marihuana trafficking. Indeed, there is strong reason to believe quite the contrary.

In short, we may conclude that a major problem with bringing information to bear on the formulation of public policy is that elite opinion seems to be relatively sluggish in changing its views in response to infor-mation. This is, of course, a double problem since not only are opinions important in themselves as a shaper of public policy but typically the elite acts as a transducer of information to the rest of the citizenry whose opinions may also exercise important influences on public policy.

If I had the time, I could go on at some length discussing the relation-ship between information and public policy. Some of the things that I have said are obviously biased, almost designed to elicit a response. Others, I think, are very sensible things that just have to be understood by anyone trying to figure out the relation between the two variables.

But let's go on to the next area: how public policy influences behavior. This is, to my mind, even more interesting. One thing I have been struck by again and again in the papers presented here is the irrelevance of public policy to so much of behavior. Anyone just reading through the statute books of countries like Colombia, Costa Rica, India and Jamaica would immediately conclude that marihuana use is severely punished there and hence rarely used. But neither of these things is true. If one goes out in the field, one finds that the drug is widely and almost openly used. What does the legal system do about it? Well, it manages to inflict a certain toll. It's almost as if you mined the oceans and every 150th freighter went down. You're not going to stop people shipping things. You're just going to raise insurance rates a little.

Basically, all that strict marihuana laws in these countries accomplish is to ruin a certain number of lives. Otherwise, they have no real effect. I might say, as a first approximation, that in this area the law is by and large irrelevant. And that leads to the rather intriguing question : in what kind of societies does this occur? For convenience, I'd like to talk of a tripartite division of legal systems. The first type — perhaps China and the Soviet Union are examples — is a legal system where one has the feeling (and let's assume it's true) that the government is in essentially complete con-trol. In terms of the behavior of the citizens within very wide limits, what it wants done gets done, and what it doesn't want done doesn't get done. In a legal system like that, one would not expect that the government would have any serious problems enforcimarihuanagainst maiihuana.

People just wouldn't smoke the drug, at least in those areas in which the government cared about enforcing the law — though the government might well allow it in, say, backward rural areas. But where the government cared at all about it, people wouldn't dare violate the law. And therefore there would be relatively few associated costs (police, prison upkeep, etc.).

Laws are not enforced there with great expense and effort because they don't have to be.

The second kind of legal system is one like that of the U.S. or Canada, one which has a formal structure of authority but also many rights for individuals. Marihuana is forbidden, but the government is not able to enforce the prohibition. And from this situation there is considerable resulting harm : police corruption, marihuana marketing by organized crime, a whole subculture based on drugs, large numbers of people ar-rested with consequent damage to their lives. Because the law enforcementle of enforcment it causes serious social harm.

The third type of legal system is one for the most part like that attributed here to Costa Rica. In such a system, although the law, on paper, prohi-bits something, nobody really pays a great deal of attention to that law. As a result, in gross terms, it doesn't really do much harm. Now this is not a response to a problem which is easy in most industrialized societies. The law in developed societies tends to be a fairly fine instrument. It's only when the authorities attempt to enforce laws which illegalize actions they would like to prevent, but can't, that they do real damage to the legal fabric. This seems not to be the case in underdeveloped countries. There, while it may be that the laws are wrongheaded, they don't do a great deal of harm because nobody — public or authorities — pays attention to them.

To move on, because time is running out, let me point out what appears to happen in a Western developed country's legal system (say, the U.S. system) when in response to their perceived inappropriateness the laws begin to relax. The relaxation occurs in basically four steps, although they run together somewhat. First, the actual inflicted penalty starts dropping, in practice, if not in law. This has already, for the most part, happened in dramatic fashion, in both the United States and Canada. There's a won-derful case in Canada, where, although the law hasn't been changed very much partially because of the Le Dain Commission's work, attitudes have greatly changed. In Toronto, somebody has just been convicted for a fourth time on marihuana possession charges. For his first offense, with no other previous convictions of any kind, he was given six months in jail. For his second offense, he was given a month in jail. And for his fourth offense, he was given three months in jail. For his third offense, he was fined and put on probation.

Now what happened there is interesting. The generally accepted prac-tice as to punishments for subsequent offenses puts the cases on the up-escalator, as it were. On the other hand, the whole law as to marihuana, because of the society's increasing appreciation of the problem, has been on a down-escalator, moving even faster in the direction of lessened sen-tences.

The same thing has taken place in the United States. At present, over 90% of Americans convicted of marihuana possession don't go to jail. This certainly wasn't true ten years ago. The seriousness of punishments given have gone down very sharply, but not primarily as a function of statute law. Although that, of course, has been happening, too. The main reason is that the judicial enforcement policy has been changing — in response to a whole range of social pressures.

After the judges start dropping the penalties actually given, the behavior of the police begins to change. More and more, police in the United States are beginning to just forget about the whole business. If the people they catch with marihuana haven't done anything else, they often give them a warning and throw away the stuff. Sometimes they won't even take it away from those they catch. A sizable percentage of officers simply ignore the matter, so that potential offenders don't come into the criminal sys-tem at all.

The third step occurs when the statutory penalties themselves start dropping. We're pretty close to the end point of that, so far as possession is concerned, in parts of the United States, such as Oregon. Both Denmark and the Netherlands have already reached it. In those countries, there is essentially no penalty for possession.

As for the final step, licensing the sale of marihuana that will be a big one. I have no doubt we'll do it in the United States — in maybe five years. Once people realize that there is in fact no penalty for possession, then they're going to begin to think,

Well, as long as so many people are using it, who should make the profit on selling the drug? The government can have it through taxes, or the drug culture can get it and use it to support other activities (including, I might point out, the feeding of large amounts of more dangerous drugs to people who still will have to buy their marihuana covertly).

So the issue becomes then, given that marihuana is going to be sold, is it going to be sold by government licensed, taxed dealers or by dope peddlers? Once we have come to that, people will conclude, as they must, that it is better to have the sales made legal.

The one thing that could retard statutory change — at least, in the licensing area — is an international agreement. International agreements are, by their very nature, the most sluggish type of law to reform. They are also the variety least based on public policy considerations, -and the most heavily bureaucratic in their operation. These could be serious problems, but there are legal means around them.

There is one other thing I'd like to mention. I was very impressed with the discussion of Colombia, where we talked about the other social con-trol agents than the courts and police. Something we tend to forget is that the criminal law is by no means the only agency of social control. The psychiatrist who gives shock treatments to marihuana users is punishing people just as much as are the prisons. Indeed, he is probably more of a threat to the people than is the actual legal system. And the psychiatrists aren't the only social control mechanism. There are also the newspapers and the governing elites or opinion-leaders.

I wish I could go on at greater length about the various means of social control, but the most significant thing I want to point out is that we come full circle. The social control agents including, of course, the police and the courts are also the elites who mould attitudes in this area and, in a very real sense, make the law. They are the governing class in our society but theirs is an acutely uncomfortable position. They are required by their institutional roles to help enforce a societal proscription on the use of marihuana. Simultaneously, because the laws in this area have come in-creasingly to be seen as simply ridiculous, more and more people are coming to them and demanding that they change things. They are unsympa-thetic to changes in the laws they are enforcing in part, due to cognitive dissonance — the basic principle that says we are unwilling to credit people who describe a job as unnecessary, in direct proportion to the amount we are investing in doing the job.

In other words, the involvement of the elites in social control prevents their acting as appropriate transducers and interpreters of unbiased infor-mation to the general population on the laws they are helping to enforce. In the absence of such mediators of information the general population does not press for change — or at least accepts change at a reduced rate. Moreover, insofar as these governing elites have independent power to mould the law — either as law-makers or as traducers of information to the law-makers — the same processes of reluctance to accept new infor-mation will occur.

It is for this reason primarily, I postulate, that the incorporation into public policy of information on cannabis moves at such a sluggish pace. I would hope that someone would undertake to verify that the more in-volved elites are in the task of social control on an issue the greater their inertia, and the less is their willingness to accept new information at odds with that upon which the law is based, and the more sluggishly they will react to information challenging the purposes of the control.


Our valuable member John Kaplan has been with us since Sunday, 19 December 2010.

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