Under the CEN, possession of up to one hundred grams of cannabis, twenty grams of marijuana resin, or equipment for consuming marijuana are all treated as minor marijuana offences that are punishable by a small fine ranging from Australian $50 to Australian $150. If this fee is paid within thirty to sixty days, there are no criminal proceedings and no offence is recorded. Failure to pay the fine leads to criminal proceedings and may result in imprisonment . Another unique aspect of the Australian policy is that the cultivation of a small number of plants was included in the category of “minor cannabis offences” in order to allow users to obtain cannabis without resorting to the black market. For example, South Australia initially allowed up to 10 plants to be grown for personal consumption, but this quantity was later reduced to just 3 plants. The prohibition against home cultivation of larger than statutory amounts is still enforced as evidence by a rise in the number of such cannabis offences detected . As opposed to its Australian and U.S. counterparts, the German federal government is exclusively responsible for enacting criminal laws. German states are merely in charge of implementing them. Nonetheless, in Germany there remains a considerable degree of heterogeneity in the handling of cannabis possession offences across states.
In Germany, this variance results from the different interpretation and implementation of several provisions within the Act on Narcotics ,hemp drying racks the Code of Criminal Procedure , and the Act on Juvenile Courts that, under certain conditions, empower prosecutors and courts to dismiss criminal proceedings involving consumption-related drug offences.The provision most frequently used to dismiss consumption-related drug offences is section 31a BtMG, which was introduced by the German Parliament in 1992. Section 31a amended the previous law by expanding the discretion of individual public prosecutors, allowing them more authority to decide when to prosecute defendants charged with consumption-related drug offences. Prior to this amendment, public prosecutors needed judicial consent to refrain from prosecuting someone charged with a consumption-related drug offence . While the lawmakers’ primary intention was to relieve public prosecutors from an overwhelming caseload of low-level drug offences, the introduction of section 31a BtMG also partially depenalized consumption-related drug offences. The underlying principle supporting this significant change is “help before punishment” : the lawmakers hoped that the depenalization of low-level drug offences could induce drug consumers to contact drug advice and treatment centers and, if necessary, to start a detoxification therapy. In 1994, section 31a BtMG was subject to a review by the Federal Constitutional Court with specific reference to cannabis-related consumption offences. In general, the court upheld the constitutionality of the criminalization of cannabis offences, including those involving the mere possession of the drug .
However, the court added that criminal cases involving the possession, purchase or import of small amounts of cannabis for “occasional private use and if there is no danger to third parties” must be dismissed because the prosecution of such offences would amount to excessive state intervention and thus seriously infringe upon the constitutional principle of proportionality. In addition, the Court emphasized that dramatic differences in non-prosecution policies across Länder cannot be accepted because they would amount to a serious violation of the right of equal and non-discriminatory treatment. The highest German judicial body thus concluded that the infringements of the basic rights of equal treatment and proportionality could be avoided by properly applying Section 31a BtMG and by implementing consistent non-prosecution policies throughout Germany in cases involving the possession of small drug quantities for personal use. Despite this ruling, the German states are far from having developed and implemented a uniform policy of non-prosecution with respect to cannabis offences. A consensus has not been reached by the individual states, and thus considerable regional differences continue to exist. Several northern and middle states have adopted guidelines or recommendations requiring or allowing the non-prosecution in cases involving ten to fifteen grams of cannabis and, in Schleswig-Holstein, up to thirty grams of cannabis. In contrast, the southern states and several eastern ones have issued more restrictive guidelines, ruling that prosecutor’s offices and courts can only dismiss cases involving less than six grams of cannabis. The more liberal states also allow dismissals for repeat offenders, whereas conservative states usually rule out this possibility or allow dismissals only in exceptional circumstances. Some states have issued no such guidelines so far .
Upon the recommendation of the Commission for a National Drug Strategy in 1998, the Portuguese Parliament and Council of Ministers decriminalized the simple possession and use of cannabis, along with all other drugs, in July 2001. This decision was based on a broad policy of harm reduction that aims to reduce the harms to the drug-using individual as well as to society. A central element of this harm reduction strategy was the declaration that drug users were not to be cast out of society as criminals or pariahs, but were to be fully integrated members of society . If the police stop someone for using or possessing marijuana they do not arrest them. Instead they issue a citation to appear before the city’s administrative committee, a 3-person administrative body consisting of two medically qualified and one legal member. This committee decides on a course of action based on the evidence of the case, including the severity of the offence, the type of drug used, whether the use was public or private, if the person is an addict, whether the use is occasional or habitual and the personal circumstances of the user . The possible sanctions range from the suspension of individual rights to fines. Sanctions can be removed or reduced after completion of voluntary treatment . Critics of the Portuguese policy claim that the police and criminal justice system is simply being replaced by a new system. Only time will tell if the system that is implemented realizes the intentions of the policy makers.The Netherlands is the only country that has successfully experimented with a reduction in penalties for possession and sale of small amounts of marijuana. In 1976 a formal written policy of non-enforcement made the possession and sale of up to 30 grams of marijuana de facto legal even though the Netherlands technically retained its prohibitionist policy against marijuana . The policy basically stated that prosecutors and police would refrain from enforcing the law in those cases where the quantity possessed or sold did not exceed 30 grams. They would also tolerate the sale of these small amounts in coffee shops . By not enforcing the prohibition in these cases,industrial rolling racks the Dutch government in effect sanctioned the creation of a small retail marijuana market. They continue to aggressively enforce the prohibition against the sale, distribution and trafficking of larger quantities of cannabis. They also prohibit the cultivation of marijuana for personal or industrial use. In the next ten years a series of formal and informal guidelines emerged that effectively regulate the de facto retail marijuana market. These regulations prevent coffee shops that sell marijuana products from advertising these products, selling hard drugs, selling marijuana to minors, selling amounts greater than the legally specified quantity, and allowing public disturbances . In the 1990s, a licensing system was created that enables the government to limit the number and location of coffee shops, and hence to control where marijuana can be sold. In 1995, the formal non-enforcement policy was modified to reduce the quantity of marijuana that can be legally sold and/or possessed to 5 grams . Thus the Dutch policy has allowed a very small, moderately-regulated retail marijuana market to develop as a result of non-enforcement of the law while maintaining a statutory prohibition on marijuana use and supply. During the late 1970s, eleven US states reduced the criminal penalties for possession of small amounts of marijuana . Even though the federal policy maintained marijuana possession a criminal offence, these state policies reflected a significant change because the vast majority of marijuana possession cases are tried in state courts under state law .
Although a few states raised their penalties during the Reagan Administration, the general trend in state laws has been to reduce the penalties or remove the criminal status of marijuana possession offences involving small amounts of marijuana. Recent analyses of state legal statutes shows that by 1989 many states had reduced the penalties associated with minor marijuana possession offences, with forty-three states and the District of Columbia allowing offenders to circumvent statutorily imposed jail time through diversion programs . To more clearly articulate the legal situation across states in the U.S., we show in Table 1 information on decriminalization policy and statutory penalties in effect as of January 2001 for first time marijuana possession offenders caught in possession of small amounts of marijuana for all fifty states and the District of Columbia. As in the other countries, each state uniquely defines what it means by “small amounts”, and the laws described here are those associated with the first quantity trigger . 8 In Column I we identify those states that are widely recognized as decriminalized states in 2001 based largely on policies enacted during the 1970s.9 In Column II we identify those states that reduced the criminality of minor marijuana possession offences by changing the criminal status of these offences to a noncriminal offence in their state law. When we compare states in Columns I and II, we see that as of January 2001 fourteen states actually remove the criminal status of minor possession offences, seven of which are not formally recognized as decriminalized states. Furthermore, five states that are widely recognized as having decriminalization statutes maintain the status of marijuana possession offences as a criminal charge. In some of the U.S. states, a minor marijuana possession charge can also be removed through a formal process called expungement. Provided that the offender successfully completes mandated punishment for the offence, such as payment of a fine, drug education, treatment, or community service, then the charge is erased from the individual’s public record as if the crime never occurred. Column III identifies the twenty-two states that, as of January 2001, allowed for the possible expungement of minor marijuana possession offences. Again, we see by comparing Columns I and III that many of the states that have expungement provisions are not known as decriminalized states. However, it also shows that only three of the five socalled decriminalized states retaining the criminal status of minor marijuana possession offences allow for the removal of the criminal charge upon completion of mandated punishment. Thus there are two remaining so-called decriminalizedstates, Ohio and Alaska, which do not remove the criminal status of minor marijuana possession offences through statutory law. These states simply eliminate jail time as a potential penalty, a change that is more characteristic of depenalization than decriminalization. Table 1 highlights the problem identified in previous work that revealed that not all of the so-called decriminalized states had statutorily removed the criminal status of minor marijuana possession offences while other so-called decriminalized states had . The label “decriminalization” may have been adequate for describing meaningful policy differences across US states when these policies were first adopted in the early 1970s, but it is clear that today this classification of US states is inappropriate for evaluating the effect of criminalizing marijuana across the states. Future researchers interested in evaluated U.S. policy need to construct a more accurate representation of state differences in statutory law reflecting dimensions that include the change in criminal status as well as a reduction in the severity of penalties. Given the power of the judicial system, it is important for those interested in examining U.S. policy to also consider the extent to which specific laws get shaped by the state judicial system through sentencing guidelines, assignment of discretionary authority, and case law. Further, it is important to consider how the police enforce the laws. Recent research shows that both police and prosecutors have a lot of discretion over decisions to arrest and formally prosecute youths charged of minor marijuana offenders . Hence, the local implementation of state laws through policing behaviours and judicial processing are likely to influence the actual policy adopted within the state.Various studies have examined the effects of particular depenalization regimes on the use of marijuana .