Marijuana: decriminalising a victimless crime

Alando Terrelonge, GUEST COLUMNIST

There has been much debate recently concerning the reform of our laws which criminalise the export, import, cultivating, possessing and smoking of marijuana. The advocates for reform argue that our laws are discriminatory and unjust, as they seek to target those who use marijuana as a religious sacrament, such as our Rastafarian community; and those who use it for personal recreational purposes.

The reformists posit the further view that our laws impede scientific research into the benefits of medicinal marijuana and retard a viable industry for economic growth and development.

Anti-reformists, on the other hand, argue that the chemical compounds of cannabis cause insanity in some users; that the trade in the drug fuels crime and violence; and that great care must be taken to protect society from the ill-effects of marijuana and its use.

Notwithstanding the arguments on both sides of the marijuana divide, the law makes criminal that which is primarily a victimless crime. Conse-quently, hundreds of our fellow Jamaicans are subjected to victimisation and abuse by our security forces; embarrassment and humiliation; cruel and degrading treatment; incarceration; prosecution before the courts; and fingerprinting, leaving them with a criminal record and the label of drug offender.

That our persistent criminalising of ganja, premised on fear and moralistic views, should factor in the arrest and detention of approximately 300 young men and women each week is testament not only to the need for Jamaica to abolish its antiquated laws which criminalise a natural plant and its use, but also to the paucity of political leadership which has allowed such an irrational and oppressive law to subsist.

Dangerous Drugs Act

Ganja, weed, or herb, as it is commonly referred to in Jamaica, is defined under the Dangerous Drugs Act of 1948 as "all parts of the plant known as Cannabis sativa from which the resin has not been extracted and includes any resin obtained from that plant BUT does not include medical preparations from that plant".

Section 7A of the legislation provides for the fine and/or imprisonment of anyone who imports, exports, or takes preparatory steps to export ganja. The fines range between $300 and $500 for each ounce, with possible imprisonment of up to three years if convicted in the Resident Magistrate's (RM) Court, and up to 35 years if convicted before the Circuit Court.

Under Section 7B, persons found guilty of cultivating or selling ganja may be fined between $100 and $200 for each ounce, and also risk being imprisoned for a term not exceeding three years if prosecuted in the RM Court, and up to 35 years if prosecuted in the Circuit Court.

Pursuant to Section 7C, if found guilty of possession of ganja, the offender will be fined $100 for each ounce and may also be imprisoned for up to three years before the RM Court, and up to five years in the Circuit Court. Under Section 7D, there is a maximum fine of $5,000 in the RM Court for anyone found guilty of smoking ganja, or having a pipe used to smoke ganja, or who allows his premises to be used for smoking ganja. They can also be imprisoned for up to 12 months for the first offence. For subsequent offences, there is a maximum fine of $12,000 and possible imprisonment of up to two years.

In examining the various penalties for committing an offence under the act, it becomes apparent that the law is draconian on one hand, and absurd on the other. To subject our citizens to a term of imprisonment for up to 35 years, depending on the jurisdiction of the court, for growing or selling marijuana is oppressive and contradictory. Even more so whereby its very definition of ganja, the law recognises that medical preparations derived from the plant are not illegal.

In this regard, the legislation is arguably unreasonable, as to derive medical preparations from marijuana, the plant first has to be cultivated, then sold, or otherwise find its way into the possession of those who know how to process ganja for medicinal purposes.

It is also absurd that an individual is fingerprinted for a victimless crime, especially in circumstances where the individual does not waste the court's time and pleads guilty to the offence of possession of, or, smoking marijuana. Further, it is a waste of public resources and judicial time to police, arrest, imprison and drag someone through the criminal justice system for smoking a spliff or being found with one.

It is not just that these individuals, who usually happen to be poor, young black males from working-class families, are ordered to pay fines for smoking marijuana, or having a spliff or a ball of weed in their possession. But as a nation, we fail to recognise the more far-reaching negative social impacts of giving so many young men criminal records and labelling them drug offenders.

As a developing nation faced with one of the highest jobless rates in our history, in particular, youth unemployment, which stands at a record high of 37.7 per cent, we continue to further marginalise our young men by prosecuting them under a discriminatory and outdated legislation. Their criminal records exclude them from many job opportunities; restrict their ability to travel abroad; and also prevent family members from filing for them so that they might live overseas.

It is equally unfair and irrational that under the Criminal Records (Rehabilitation of Offenders) Act, these young men cannot have their criminal records expunged for a minimum period of six years in cases where they had to pay a fine and, much longer if they were sentenced to a term of imprisonment.

Failure of government

It is unfortunate that successive governments have failed to decriminalise marijuana and establish suitable guidelines to govern its use either as a sacrament, or for private, personal recreational use in stated doses among adults.

Thirteen years have passed since the 2001 recommendations of the National Commission on Ganja which advocated the decriminalisation of marijuana along these lines. However, the law remains intact.

Minister Golding has recently indicated that a Cabinet submission aimed at reforming the laws is far advanced. Lately, there have also been strong pronouncements in both the Senate and the Lower House advocating for decriminalisation, with the passing of a motion brought by Raymond Pryce in the House of Representatives for the decriminalisation of ganja.

Much to be gained

From the socio-economic, judicial and cultural perspectives, the gains to be made from decriminalising this victimless crime are endless. While our legislators seek to balance the interests of both the reformists and the anti-reformists, in the interim, the interests of the people and the nation would be best served by immediately signalling to the judiciary that Parliament stands in support of the exercise of their discretion not to order the fingerprinting of young men and women charged with the offences of smoking and possessing small amounts of marijuana.

It is also recommended that steps be taken to immediately amend the relevant pieces of legislation to both exclude fingerprinting, and to fast-track the expungement of criminal records of those individuals previously found guilty of smoking or being in possession of small quantities of marijuana. Change is evolution, and although often unpopular to conservative sectors of society, there is growing momentum at home, and in the international community, which will see our ganja laws evolve into a more just and equitable legislation.

Alando Terrelonge is an attorney-at-law. Email feedback to columns@gleanerjm.com and alando.terrelonge@btalawjm.com.