3 minutes on... What is the difference between legalisation and depenalisation?

• What is depenalisation?
• What is legalisation?
• Which countries have legalised cannabis?
   

What is depenalisation?

There is often confusion in the public debate between legalisation and depenalisation. depenalisation means reducing, or even abolishing, the criminal penalties applied to behaviour that is considered an offence at a given point in time. The primary objective of depenalisation is to relieve the courts of a mass of cases deemed minor.

Various depenalisation scenarios can be identified:

• it can involve reducing criminal penalties (e.g. by abolishing prison sentences).

• It can also involve abolishing all penalties, e.g. for drug possession below a legal threshold (as the Czech Republic has been doing since 2010).

• or it may involve changing the very nature of the penalties incurred: for example, when a criminal penalty is replaced by an administrative penalty (typically a fine).

Portugal chose to decriminalise in 2000 when it adopted a reform that removed the use of possession of small quantities of drugs, whether cannabis or other products, from the scope of criminal law.

The aim was to treat drug users as sick people rather than criminals, and to encourage them to seek treatment.

In all these depenalisation scenarios, prohibition remains.

What is legalisation?

In contrast, legalising means taking the logic of depenalisation a step further by lifting the ban itself.

It means allowing legal access to cannabis through a variety of channels, such as purchase (which can take place in a shop or pharmacy), supply via producer cooperatives, such as Cannabis Social Clubs, or home cultivation (self-cultivation).

It therefore means authorising a legal market, with producers and sellers holding a professional licence.

Legalising cannabis does not, however, mean authorising everything. The legal market is controlled by the State, which defines the margin of freedom left to consumers and to the economic operators authorised to produce and sell.

With legalisation, the public authorities often demand regulation that goes hand in hand with restrictions that are more or less strict depending on the country, as exists for alcohol and tobacco, and which always include a ban on minors.

Which countries have legalised cannabis?

Today, in February 2024, the countries that have opened up a legal cannabis market for non-medical use are Uruguay, Canada, and 24 of the 50 states in the United States (where a federal ban persists). Other States authorise home growing or Cannabis Social Clubs, for example in Europe: Malta and soon Germany.

Contrary to popular belief, the Netherlands has not legalised cannabis. Since the 1970s, the sale and consumption of cannabis have been tolerated in coffee shops. It is therefore a system of depenalisation as the product remains banned, but it is tolerated to buy and consume it in coffee shops. However, this model of tolerance is based on a paradox as cannabis is produced illegally. To resolve this contradiction, the government has set up a project to authorise, on an experimental basis, controlled legal production in 10 selected municipalities. Other local experiments in the legal production and sale of cannabis are currently underway in Europe, notably in Switzerland.