Why a regulated cannabis regime?
Liberalising Bermuda’s cannabis laws is overdue. This is undeniable in a society — and a world — awakening to an inflection point in discussions about systemic racialised disparities and inequities within institutions, laws and policies.
Bermuda’s recent peaceful Black Lives Matter demonstration was held against the backdrop of a global pandemic and physical-distancing rules.
Alas, Bermudian society wasn’t always so even-tempered when demanding rights for marginalised groups. The civil uprisings of the 1960s and 1970s cannot be recounted without acknowledging that cannabis- prohibition laws were used as one tool to quell black disquiet and to systematically criminalise blacks on the front lines of racial-progress movements.
Drug laws were an imperfect copy of the Nixon era “war on drugs” in the United States and similar measures in Britain and the former British Empire. It is a colonial legacy that has not been fully dismantled.
Situating well-documented history within the present, this government’s liberalisation of cannabis laws is part of its social justice reform agenda. Reform implies there is something inherently wrong and unsatisfactory with a law, warranting improvement by amendment or repeal.
As an entry point, cannabis-prohibition laws — designed to help society feel safe and secure — have enduring and damaging social, economic and health effects on society. The impact of such laws is disproportionately borne by black Bermudians. These costs of prohibition are no longer justifiable by modern standards and contemporary science.
Criminalising cannabis primarily through enforcement of personal-use offences is ineffective, costly and poor public policy. Evidence of the tangible human costs hide in plain sight within our justice system: inequities and disparities based on race in police stops and arrests; drug-related crime rates; prosecutions for cannabis offences; and our prison population.
Black males are overrepresented in all relevant metrics, even though it is proven blacks are no more prone to drug — or cannabis — use than any other group. Collateral consequences cause separation and breakdown of families and personalised trauma within families affected by cannabis enforcement. Users and persons convicted of cannabis offences are endlessly excluded from jobs, housing and travel.
When faced with the paradox of such truths, how does a society progress from cannabis prohibition to legalisation? Thinking of it as a continuum, the stages of cannabis law reform are:
• Total prohibition
• A regulated medicinal cannabis regime
• Partial legalisation with strict regulation
• Legalisation with light regulation
• Full legalisation without regulation
At present, Bermuda has partial decriminalisation, evidenced by permitting personal possession of seven grams of cannabis without criminal penalty (December 2017), followed by the legalisation of hemp (November 2019) — thoughtfully defined as including cannabis that contains no more than 1 per cent tetrahydrocannabinol, or THC.
The Government’s next steps towards legalisation via a medicinal cannabis regime were curtailed. Public consultation overwhelmingly showed the public felt the complexity and proposed bureaucracy outweighed any likely benefits for limited patients who would participate, or for attracting prospective entrepreneurs and investors. The overarching call was for bolder steps towards legalisation of cannabis.
The Government took a deeper look at how far law reform could go, as piecemeal decriminalisation was not a feasible option. A balancing exercise acknowledged that full legalisation of cannabis, without purposeful regulation, might have the unintended consequence of increasing cannabis abuse, and would position Bermuda outside of our international treaty obligations.
Inadequate regulation would neither dissuade use, eliminate the illicit cannabis market, nor prevent the known health risks and associated social harms.
The conclusion was that we needed a bespoke regulated cannabis scheme with a net benefit to public health and safety, which is not unjustifiably punitive. Opening entrepreneurial opportunities in the period of economic recovery after Covid-19 — prioritising persons negatively impacted by cannabis prohibition — became a necessary consideration.
Soft-touch regulation was ruled out because it could not achieve the needed protections for vulnerable groups. A market for illegal cannabis — of unknown quality and potency — would persist, exploitation through criminal enterprise would continue and cannabis users would largely be out of reach of prevention and risk-reduction protocols and treatment services.
Progressing science on cannabis shows the health risks of using the drug are lower than that of alcohol and tobacco. Local cannabis-use data places it and alcohol side by side as the drugs of choice in Bermuda. Reported lifetime consumption rates are at 78.7 per cent for alcohol, 76.5 per cent for cannabis and 70.4 per cent for tobacco.
There is no escaping these are cultural staples in a society where almost 99 per cent of people admit to taking drugs in their lifetime. Law and policy models around cannabis interventions globally are shifting focus towards identifying persons at high risk, modifying risk factors and risky behaviour, and modelling responsible use — the same as for alcohol — instead of outdated criminality-focused models.
Recognised health risks for cannabis users are heightened for adolescents, persons with mental health challenges — or a family history of such — individuals with cardiovascular problems and pregnant women. These high-risk factors can be worsened by initial cannabis use in early adulthood, near-daily use, smoking the drug and by consuming it with excessively high THC levels.
The proposed, regulated cannabis regime policy and an illustrative draft Bill, now available for public consultation, contain provisions addressing each risk factor. Protecting those most vulnerable to cannabis-related harms is at the core of what is proposed.
For example, cannabis sales are restricted to persons over 21 years of age and supplying anyone under-age is penalised; availability is controlled in approved premises meeting strict guidelines; a provision allows for the curtailment of high-potency cannabis; supply chains will be controlled to keep out criminal elements; and mechanisms for policies and resources enhancing education, prevention and treatment for at-risk groups are included.
A public health and safety focus within a regulated cannabis regime, rather than an emphasis on criminality, will enable transformative change. Advancing these reforms provides an opportunity to rethink our relationship with cannabis and break down multigenerational barriers erected by the criminalisation of cannabis use that has disproportionately affected black males and stripped the humanity, respectability and voices of our elders, family members and loved ones.
The Government calls on the entire country to review and discuss the proposed cannabis law reforms. We each have a role to play in social justice progress. Let us continue difficult conversations about our feelings on cannabis. Let’s challenge ourselves to honestly evaluate whether we have any implicit biases against persons perceived to be cannabis users. Have we been socially conditioned to hold these biases?
Reach out to someone whose life has been impacted by existing cannabis laws to hear their story, without judging or shaming. Then ask yourself: can there be any justice in keeping opinions, policies and laws rooted in ideologies and systems designed to harm, oppress, marginalise and discriminate?
The consultation package is available at forum.gov.bm. All constructive feedback will be considered to improve the final Bill presented to the legislature. The consultation period ends on July 3.
• Kathy Lynn Simmons is the Attorney-General and Minister of Legal Affairs
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