Cannabis policy reform in Germany: Political and constitutional discourses on decriminalisation and regulation strategies

Numerous German initiatives to liberalise cannabis-related criminal law have arisen against the backdrop of global debates, stimulating reform. Current drug policy is being discussed intensively, including calls to end prohibition of cannabis from wellknown criminal law professors aligning with the resolution of Prof. Dr. med. Lorenz Böllinger.1 Advocates cite the benefits of relieving the police and courts to focus their resources on organised crime. Opponents fear legalisation will increase the number of consumers and magnify healthcare costs at the expense of society.


Introduction
Numerous German initiatives to liberalise cannabis-related criminal law have arisen against the backdrop of global debates, stimulating reform. Current drug policy is being discussed intensively, including calls to end prohibition of cannabis from wellknown criminal law professors aligning with the resolution of Prof. Dr. med. Lorenz Böllinger. 1 Advocates cite the benefits of relieving the police and courts to focus their resources on organised crime. Opponents fear legalisation will increase the number of consumers and magnify healthcare costs at the expense of society.
In Western and Central Europe, including Germany, a market for illegal drugs emerged in the late 1960s, 2 which has not yet been stabilised politically or socially. The climate favouring drug reforms is a paradigm shift. Liberalisation of drug laws in the Netherlands, Switzerland, Spain, Belgium, Portugal, the Czech Republic, and several US states has so far not led to an increased drug use as feared. 3 In 2014, Uruguay legislated to regulate cultivation, sale, and consumption of cannabis to deprive organised crime of the market and to prevent use of harder drugs. 4 Cannabis has been grown, consumed, and sold in small quantities legally in Canada since 17 October 2018. 5 In New Zealand a not binding cannabis referendum was held on 17 October 2020, on the question of whether to legalise the sale, use, possession and production of cannabis. 6 This paper aims on the one hand, to provide insights into German narcotics law. On the other hand, the political arguments for sticking to prohibition are contrasted with the numerous empirical findings that are now available. The results of the empirical studies now challenge the Federal Constitutional Court and the legislature to review their previous course and possibly break new ground in drug policy. Section 2 outlines the current legal situation following the findings of the German Federal Constitutional Court more than 20 years ago. Section 3 critically reviews the main arguments used so far to justify prohibition, namely the health and social risk assessment and the predicted development of consumption, in terms of their scientific content.
Since the new scientific studies may lead to a new constitutional assessment of cannabis use and to a new legal situation in Germany, we trace current political advanced initiatives toward a new cannabis policy in Section 4. In Section 5 we give an overview of 'new facts' presented in a new submission order to the German Federal Constitutional Court in April 2020. Section 6 contains our summary and conclusions.

Current German legal framework
initiating cannabis-related research. 15 German legislation allows dismissal of criminal cases against drug users. In this context the most relevant section is § 31a BtMG, 16 introduced in 1992. 17 If there is no public interest in prosecution and the offence can be considered minor, § 31a BtMG allows prosecutors 18 to dismiss cases without consulting the court. The core consideration in applying § 31a BtMG is the small amount (geringe Menge) for personal use. 'Small amount' is undefined by the law but specified by the German federal states. The intent is to 'improve the procedural recruitment options for the public prosecutor's offices by waiving judicial approval' . 19 The higher regional court case law and prevailing opinion in literature considers an amount of cannabis for a non-dependent user of up to three consumption units as 'small' . 20 In cannabis products up to an active ingredient content of 0.045g THC is assumed a small amount. 21 That corresponds roughly to a gross weight of 6g if one assumes in favour of the accused of a very poor quality with an active ingredient content of less than 1%. 22 However the public prosecutor's offices in the individual federal states assess the 'small amount' of cannabis products differently. The prosecutors can currently dismiss the procedure in any federal state up to a gross weight of 6g of the product in accordance with section 31a (1) sentence 1 of the BtMG. Some federal states also allow an adjustment for quantities up to 10g. Only the federal states of Berlin and Bremen regulation includes the option of setting up to a gross weight of 15g. That for a 'small amount' with the 15 Aguilar, Gutiérrez, Sánchez and Nougier, Medicinal cannabis policies and practices around the world, International Drug Policy Consortium (2018) http://fileserver.idpc.net/library/ Medicinal%20cannabis%20briefing_ENG_FINAL.PDF 19. March 2021.

§ 31a Betäubungsmittelgesetz (BtMG)
Refraining from prosecution. '(1) If the subject matter of the proceedings is an offence pursuant to section 29 subsection 1, 2 or 4, the public prosecutor's office may refrain from prosecution if the offender's guilt could be regarded as minor, if there is no public interest in a criminal prosecution and if the offender cultivates, produces, imports, exports, carries in transit, acquires, otherwise procures or possesses narcotic drugs in small quantities exclusively for his personal use. Prosecution should be refrained from if the offender possesses narcotic drugs in a drug consumption room in small quantities exclusively for his personal use, which may be tolerated pursuant to section 10a, without being in possession of a written licence for acquisition. ' 17 Weber meaning of § 31a BtMG relevant gross weight of cannabis products can differ by up to 9g in a nationwide comparison. 23 In order to standardise dismissal practice all over Germany the Ministers of the Justice of the federal states are now in favour of a common upper limit for cannabis products, which all states should set at 6g. 24 Germany's ban on cannabis and threat of punishment constitute interference with general freedom of action by adults. In consistent case law of the Federal Constitutional Court, general freedom of action under Article 2 (1) of the Basic Law includes acts that pose health risks. Protection against self-injury can justify interference with adults' general freedom of action only in particularly serious cases. 25

Arguments in favour of prohibition in the light of empirical studies
A debate on legalisation has so far been largely avoided by the German Drug Commissioners in the annually published 'report on drugs and addiction' . 36 The arguments for continuing to treat cannabis as an illicit drug are based primarily on the mental and physical impairments, and on the psychosocial and economic consequences of cannabis use. These are also the main arguments of the opponents of liberalisation. Partly the dangers are described dramatically. 37 While only a few years ago the scientific evidence for mental and physical impairments was small and many claims were made on a case-

Health risks
Studies assessed the health risk of cannabis as low, especially in the recreational use of adults, and showed lower health risks than the consumption of alcohol and nicotine. 39 Chronic cannabis use seems to increase the risk of respiratory symptoms (coughing, wheezing breath, sputum production, chest tightness). 40   seems to be increased for persons with genetic predispositions. 56 However, the causal role of cannabis use in the development of psychotic disorders has not yet been clarified. 57 In general, a psychotic disorder is to be regarded as a multifactorial event in whose development not only environmental influences, but also genetic factors play an important role. 58 An increased risk for mental disorders such as anxiety and depression is not proven by all studies; findings are also inconsistent. 59 Some studies find no longitudinal associations between cannabis use and anxiety or depression. 60 Meta-analyses and systematic reviews concluded that there was a modestly increased risk of depressive and anxiety disorders, 61 and a greater risk of bipolar disorder. 62 Overall, inconsistent or incomplete findings require methodologically reliable longitudinal studies. 63 Still it's uncertain whether cannabis plays a causal role in the onset and persistence of mental disorders, adolescents with symptoms of mental disorders are more likely to use cannabis and alcohol and to develop problematic patterns of use of both drugs. 64 In general, mental disorders are usually the result of multifactorial events rather than a single trigger. A further argument for maintaining the criminalisation of cannabis is the psychological and physical dependence resulting from its use. 66 Cannabis Use Disorders (CUD), one of the psychiatric diagnoses included in the Diagnostic and Statistical Manual of Mental Disorders, is generally understood as abuse or dependence. DSM-V, published in 2013, shifted away from the abuse/dependence paradigm toward a more dimensional scale that incorporates level of severity into its measurement of the syndrome, essentially combining the abuse and dependence criteria into one set for a diagnosis of disorder. 67 CUD is defined as cannabis use that is associated with clinically significant problems ranging from mild to severe, including inability to stop using it despite psychosocial/ medical problems, the presence of craving, the need to use larger amounts to obtain the same effect (tolerance), and/or the onset of symptoms when its use is stopped (withdrawal). 68 In the case of physical dependence, the body reacts with withdrawal symptoms. A first characteristic of physical dependence is the development of tolerance and the resulting increase in dosage. Cannabis withdrawal is a valid clinical syndrome (such as sweating, trembling, restlessness, irritability, peace) that emerges following abrupt cessation of frequent cannabis use. 69 Physical withdrawal is comparably mild. 70 Nevertheless, the addictive potential of cannabis is indisputably lower (6.2%) than that of legal drugs such as alcohol (11.2%) or nicotine (36.0% an elevated risk of substance use disorder. 73 Youth under the age of 18 are four to seven times more likely to develop CUD than adults. 74 Studies show that the early use of cannabis poses a risk for adolescents with regard to the development of brain functions, 75 impulse control, affect control, control of attention and concentration, memory, verve and social-organisational skills. 76 Cannabis use during adolescence is associated with worse mental health. 77 Also the relative risk of cannabis dependence is higher for adolescents. 78 However, the increased demand for treatment 79 cannot be cited as evidence of the particular risk potential among young people. The treatment figures initially only indicate that an addiction aid system with cannabis-specific services has been established in Germany over the last 10 years that is also being used. 80

Social risks
Furthermore, it is argued that regular cannabis use leads to psychosocial problems for adolescents including an increase in the frequency of early school leaving, less university attendance and therefore fewer academic degrees. 81  Also, the argument that prohibition protects the young against developing criminal behaviour and the use of hard drugs remains scientifically unproven. The assumption that cannabis is a 'gateway drug' to 'hard' drugs is unfounded. It has been proven that hard drug users usually first used 'softer' cannabis products, 84 but this causal chain cannot be proven in the opposite way. The number of cannabis users who later switch to hard drugs is low. 85 On the basis of the study 'Monitoring the future' , alcohol is the 'gateway drug' and is consumed before cigarettes and cannabis. 86 The causal mechanisms of cannabis as gateway drug remain unclear. Nevertheless, prohibitionists seem influenced by the 'gateway drug' argument. 87

Protection of children and adolescents -prevention of higher consumption
According to a rating of European addiction experts, 95 the severity of physical, mental and social impairments caused by cannabis was rated 18 on a scale from 0 (no harm) to 100 (severe harm), putting cannabis in 8th place compared with other common drugs (behind alcohol, heroin, crack cocaine, methamphetamine, tobacco and amphetamine, but before GHB, methadone, benzodiazepines, ecstasy and hallucinogens).
Although cannabis is a relatively harmless drug, advocates of prohibition argue with the general danger of the drug. 96 Although this cannot be generally claimed, as the results show, there is agreement that children and young people are particularly vulnerable groups. But whether effective protection can be achieved through criminalisation or regulation, or how young people and children can be most effectively discouraged from consuming cannabis, is again highly controversial. Probably the most important argument against further-reaching reforms is that a regulated market sends the wrong signal and seduces children and young people to use cannabis. 97 Two basic assumptions are made. It is claimed that prohibition has a direct positive effect on consumption rates, so that (1) a higher availability of cannabis and (2) a subsequent increase in consumption rates in the course of regulation is assumed. 98 Cannabis is the most frequently used drug. As shown, however, consumption among adolescents diverges significantly, and correlations between drug policy and availability (the more repressive the lower) are not provable. Also, availability of a drug is embedded amid complex conditions. For example, young people in a prohibitive model may find it easier to obtain drugs because prohibition triggers black markets. Contrary to expectations of prohibitionists, prices in Colorado and Washington have fallen since legalisation, and prison sentences for distributing unlicensed cannabis have declined facts taken as evidence that black markets are increasingly unable to compete with legal trade. 129 There seems no connection between regulation policy, greater availability and consumption among adolescents. 130 Even in Sweden, which is often cited from prohibitionists as an example of supposedly successful prohibition strategies due to its relatively low prevalence rates, repressive drug policy does not explain consumption rates. 131 The average amount 126 of cannabis consumed annually by intensive users is second highest in Sweden (363 g; after England/Wales 374 g), and lowest in Portugal (184 g). 132 Not to mention the high mortality rate in Sweden, which reflects only tentative Harm Reduction (HR) efforts. 133 Obviously, consumption rates are embedded in complex economic, social, and cultural factors.

Black markets and costs of prohibition
The stimulation of the cannabis black market leads to negative consequences for the consumers. 134 While in Sweden, for example, 52% of cannabis users state that they can buy other hard drugs where they buy cannabis, only 26% of Czechs or 14% of Dutch people state this. The black market is therefore particularly dangerous for young people who simply come into contact with hard drugs and have no information about the composition and active ingredients of the cannabis they buy. Even though Dutch drug policy has often been criticised, evaluations have shown that the approach of separate markets can be seen as positive and that the main objectives of prevention and risk minimisation have been partially achieved. 135 The use of hard drugs among young people is low, illness and mortality rates among drug addicts are stable and low, and there is no increase in the consumption of soft drugs. Nevertheless, the World Commission points out that the negative effects of the black market cannot be countered by decriminalisation models. 136 Prohibited production in turn leads to black market problems and organised crime, which is discussed in the Netherlands under the 'back-door problem' . In addition, there remains a risk for the consumer. In order to reduce the harm caused by drug use in the long term, governments must think about suitable market regulation models and consistently regulate access by means of age limits and other security measures. The workload of the German police caused by cannabis offences leads to high costs. Since most consumer offences are dismissed ( § 31a BtMG), there are less resources available to prosecute serious offences. Results of a recent survey among police officers in Hamburg show that the attitudes of criminal detectives (contrary to the local police officers) have changed since the 1990s and that prohibition is not considered effective. Although 83.1% of the officers interviewed in this survey focus on drug trafficking, this does not change the fact that police officers cannot look the other way when dealing with consumer offences. 138 This is confirmed by the annually increasing number of consumption-related offences in the PKS. 139 It is therefore not surprising that the Federation of German Criminal Investigators is currently reiterating its demand, which was made for several years now, for a non-repressive drug policy when dealing with consumers. 140 The main argument is that the resources released could be used to intensify the fight against organised crime in the drugs field. As shown, organised criminal control of production and supply cannot be broken by police means, and a strategy of prohibition promotes it. The cannabis market is large, profitable, organised, and characterised by violence and associated crimes.

141
Technological innovations raise production volumes and product potency. 142 The market is -1% of Europeans consume cannabis daily 143 -and was historically not influenced by criminalisation strategies.
Drug consumption does burden healthcare, 144 but no reliable data yet indicate that regulation elevates that burden. 145 Moreover, tax revenues from regulated markets create resources for preventive measures that could counteract consumption and exert positive effects on healthcare system. Criminalisation has no demonstrable positive impact on consumption and availability of cannabis. 146  prohibition. 147 According to the Global Commission on Drug Policy 148 there is no justification for a repressive drug policy. Indeed, drug prohibition is regarded as a failure because black markets generate social damage. 149 Furthermore, a tightening of prohibition would result in higher costs on the supply side to continue to act undetected on the black market. These costs would also be reflected in prices for consumers. Thus, more resources would have to be spent in illegal markets, whereas legalisation and taxation could lead to revenues on the side of the state. 150 Regulated markets or even the downgrading of consumption to an administrative offence lead to a massive reduction in the burden on law enforcement agencies. 151 Even if black markets cannot be eliminated, they can be reduced significantly, 152  a strictly controlled legal market for cannabis. 158 This would take better account of the protection of minors than before, since it is only in such a market that the ban on selling cannabis to minors can be effectively monitored. A good cannabis policy regulates the cannabis market in such a way that the protection of minors is strengthened, and the risks are reduced as much as possible. Facing opposition from the Christian Party and the Social Party, the draft was rejected in 2017.
In December 2017, the Free Democratic Party joined the cannabis-liberalisationmovement and proposed in a 'small request' to the government for a controlled legal market in cannabis and model projects for its free use. 159 In its application the FDP parliamentary group also advocated enabling model projects for free cannabis use. The fight against cannabis use by repression had failed. It was therefore time to break new ground in addiction prevention, the group argued. The aim had to be to control the spread of cannabis and to improve public health and youth protection. 160 In February 2018, the Green Party brought in the Cannabis Control Bill again, claiming it was justified by a failed cannabis drug policy. Cannabis was then Germany's most common illegal drug, consumed by an estimated 3.1 million adult citizens. 161 In the same month, the parliamentary group of the Left Party also submitted a draft. They also see the cannabis ban policy as a failure. According to their application 'Health protection instead of law enforcement -For a progressive use of cannabis, cannabis is the most commonly used illegal drug. This is countered by a drug policy based on bans, which is ideologically motivated and would ignore the realities of life of the citizens. The group calls for the possession of cannabis for personal use and to strengthen the pillars of drug prevention, advice and treatment in drug policy over the pillar of repression and stigmatisation. 162 The requests of the opposition groups in the Bundestag were rejected by the government majority.
In February 2020 the fraction of the Social Democratic Party (SPD) in the German Bundestag (coalition partner in the current German government) has also spoken out in favour of a different cannabis policy. It had decided to abandon the previous 158 cannabis ban policy in Germany, the fraction stated. 163 The possession of small amounts of cannabis for personal consumption should no longer be prosecuted and instead only be treated as an administrative offence. Model projects should be made possible to test legal and regulated supply of cannabis to consumers. Several applications of German cities 164 in this regard have so far been regularly rejected by the responsible Federal Institute for Medicinal Products and Medical Devices (Bundesinstitut für Arzneimittel und Medizinprodukte 'BfArM") due to the existing legal situation. 165 The coalition partner in the current government, the Christian Democratic Party (CDU/CSU), sticks with the argument that cannabis is a gateway drug and damages the brain. 166

New Submission order to the German Federal Constitutional Court in April 2020
In addition to the legislative initiatives, there are also current efforts by the advocates of decriminalisation to achieve their goals by establishing the unconstitutionality of the criminal norms. In this case, a 24-year-old mechanical engineering student purchased 2,6 g of cannabis resin in the Görlitzer Park (Berlin) and was subsequently subjected to a police check.
Since the young man already had been taken with resin, the prosecutor refused to dismiss the case and demanded a fine of 150 euros.
For a new application to the Federal Constitutional Court to be authorised, the district court must prove that there have been 'new facts' since 1994, when the Federal Constitutional Court ruled on the question for the first time. 169

Summary and conclusions
The current German legal system of cannabis control is based on strict prohibition of cannabis outside medical or scientific use. As in many other western countries, an increasing number of German scientists and citizens and therefore also a growing number of political parties are of the opinion that the Narcotics Act in Germany needs an urgent review (see section 2).
As shown above, there are numerous new studies on cannabis, making it one of the best researched drugs. Studies classify the health and social risk of cannabis as low, especially for recreational use by adults (see section 3.1 and 3.2). It can be regarded as empirically proven that the recreational use of cannabis is relatively harmless compared to the currently legal drugs alcohol and nicotine.
As with any other drug, children and young people are particularly vulnerable and must be protected (see Section 3.3). The use of cannabis in childhood and adolescence can have both physical and psychological consequences. But, the results of the present paper do not allow the conclusion that prohibition-oriented drug policies prevent young people of using drugs or that more liberal policies lead to an increase in prevalence rates. Although prohibitionists claim that there is a link between national drug strategy and consumption rates, there is no empirical evidence for such a correlation. The comparison of countries with different drug policy approaches reveals that cannabis use among young people seems to be influenced by a number of other factors. Even in Sweden, which is often cited from prohibitionists as an example of supposedly successful prohibition strategies due to its relatively low prevalence rates, repressive drug policy does not explain consumption rates. Decriminalisation has neither increased consumption rates in Portugal nor reduced the age of onset in the Czech Republic. 174 The decisive factors are ancillary, including measures geared to prevention, addiction therapies, and reducing damage. Consumers look for their own ways. In this respect, the demand side -not the supply side -is identified as important source of problems and drug policy starting point. 175 In its reports, the Global Commission on Drug Policy makes it more than clear that states must finally abandon the wishful thinking of a drug-free society by prohibition; prohibitive drug policy models have failed because they can neither prevent nor reduce consumption and dependence. 176 In this sense, the German Society for Addictive Medicine, 177 the German Head Office for Addiction Issues 178 and, as already mentioned, a majority of professors of criminal law in Germany (the Schildower Kreis) recommend that the German Narcotics Act be reviewed, as the law's goal of excluding the misuse of narcotics and the development or maintenance of narcotic dependence as far as possible has not been achieved. In addiction medicine, the dogma of abstinence already fell 20 years ago, so that it is primarily a matter of ensuring the healthiest possible survival, reducing consumption and extending abstinent periods. 179 The stimulation of the cannabis black market leads to negative consequences for the consumers. 180 The black market is particularly dangerous for young people who simply come into contact with hard drugs and have no information about the composition and active ingredients of the cannabis they buy. Even though Dutch drug policy has often been criticised, evaluations have shown that the approach of separate markets can be seen as positive and that the main objectives of prevention 175 and risk minimisation have been partially achieved. 181 The use of hard drugs among young people is low, illness and mortality rates among drug addicts are stable and low, and there is no increase in the consumption of soft drugs. Nevertheless, the World Commission points out that the negative effects of the black market cannot be countered by decriminalisation models. 182 Prohibited production in turn leads to black market problems and organised crime, which is discussed in the Netherlands under the 'back-door problem' . In addition, there remains a risk for the consumer. In order to reduce the harm caused by drug use in the long term, governments must think about suitable market regulation models and consistently regulate access by means of age limits and other security measures. 183 It is sometimes argued by prohibitionists in Germany that repression is after all only one pillar of a balanced cannabis policy, which already (sufficiently) takes into account the other pillars of prevention, treatment and HR. Only in recent years, a number of therapy measures and intervention programmes have been established in the cannabis field. However, there is still a lack of adequate consideration of feasible HR measures. 184 In Germany, the implementation of both individual and structural HR approaches is very limited. 185 It is not -as is sometimes claimed -predominantly the law enforcement agencies that place young people in programmes. Rather, the illegality of cannabis makes access to early intervention programmes via other potential placement partners such as schools, parents, companies, youth welfare services, vocational preparation courses or youth leisure centres more difficult, 186 so that many young people in need of help remain unreached. In addition, it is known from addiction aid that especially socially disadvantaged and psychologically vulnerable young people, as a result of prohibition, reach criminal milieus faster than 181 others. 187 A cannabis policy that continues to insist on the necessity of the pillar of repression will not be able to protect the health of consumers sufficiently in the long term. Open, targeted prevention work will be hindered; people will be discouraged from seeking help. With regard to alcohol and nicotine, it is already known that regulated markets offer the most effective protection when the framework conditions are adapted with stricter rules and increased educational work. 188 Positive trends in alcohol and cigarette consumption among young people can currently be observed. 189 According to youth researchers, the image of these drugs has deteriorated, which suggests a connection with educational campaigns.
It is certainly true that the impact of a market regulating all drugs cannot yet be conclusively assessed. Moreover, the European Monitoring Centre for Drugs and Drug Addiction rightly points out that developments and evaluations in other parts of the world need not be directly transferable to the European context. 190 However, a proportionality assessment with regard to cannabis prohibition leads to a clear result. The damage to society as a whole caused by prohibition can only be effectively countered by a regulated market, especially for the protection of young people. Overall, a strictly regulated market would be expected to provide positive economic, social and health incentives.
Currently two approaches of changing drug policy with regard to cannabis are being pursued: One approach regards legislative initiatives by political parties to decriminalise the use of cannabis. Already several times in recent years a Cannabis Control Bill aiming to liberalise cannabis use has been introduced to German Parliament, still lacking a political majority. Nevertheless the number of political parties in favour of a changed policy increased during the last years. A second approach can be found in the submission order to the Federal Constitutional Court presenting 'new facts' with the aim of declaring the current prohibition (German Narcotics Act) law unconstitutional. Such order was filed to the Federal Constitutional Court in 2020. Both approaches are based on new scientific knowledge on the harms of cannabis use physically, psychically and economically ('new facts').
While chances of success of the current application to the Federal Constitutional Court do not appear predictable, the political climate could change in the near future towards a change in the German Narcotic Act. In Germany -as in many other western countries -drug policy reform towards cannabis seems increasingly likely.