Refer madness

Despite the Mexican Supreme Court (SCJN) deciding to delay by a week (and possibly more) any discussion of decriminalizing recreational use of marijuana,  a ruling was expected today, and — as one might expect — the social media outlets for foreigners in Mexico was full of discussions about what the SCJN should do.

A couple points:

• The SCJN is going to make its own decision, and while Mexican courts consider foreign legal analysis and rulings, like any court, their decisions are based on legal principals.  The issue before the court is based on a reading of the Mexican Constitution’s prohibition of “discrimination that violates human dignity and has the objective of restricting or diminishing the rights and liberties of person” (Art. 1°). Coming on the heels of another ruling, that allowed for the importation of a marijuana-based medication for medical treatment, it might be understandable that we foreigners (and Mexican commentators, as well), assume the issue resolves around the alleged harmfulness (or lack thereof) of marijuana.

“Grace” with her parents

The earlier ruling, the “Grace Case” (Grace being a child whose seizures could be controlled by a marijuana-based drug not available in Mexico) was decided on a reading of Art. 4° which says “Every person has the right to health protection.  The law will describe the basis and means for access to health care services and will establish the concurrence of the Federation and the federal entities in matters of public health.”  The court ruled in favor of Grace’s right to protect her heath, not … as a general rule … to use marijuana for medicinal purposes (something already in the law, “necessity” being an affirmative defense in drug prosecutions).  It was a very narrow ruling, though understandably seen as indicating the courts’ drift towards legalizing marijuana use in general.

• As I expected, although a few commentators on social media outlets stick to claiming people have a right to do whatever they want (generally with the proviso that they aren’t harming others), most went off on riffs about the alleged benefits of marijuana, or its relative harmlessness compared to other substances.  The first might be within the framework of Art 1°, the second it seems somewhat irrelevant, unless the court is considering the fact that other substances people use legally are more harmful, yet the use of which is protected.

Protected, but limited:  even if the court were to rule that it was legal to use marijuana recreationally, the Chamber of Deputies would still be free under Art 74, bis XIV, inicio 4 to enact such restrictions as the Health Council sees fit.  State codes are pretty much the same, giving health departments wide leeway in setting the terms of what is, and is not, a threat to the public.   Drug crimes now are considered “crimes against public health”.

I am dubious that any ruling is going to change the “rules” all that much. Although I expect state laws might change to reflect those of the Federal District (where casual marijuana smokers who aren’t a public nuisance — which is a rather broad category, depending as much as anything on the social status of the smoker — are ignored for the most part, as they are now, even with laws against the use of the substance.

•  The bulk of commentary, though, revolved around the “drug war” and the potential economic value of marijuana as an export crop.  Although such issues are somewhat peripheral to a narrower consideration of  “the rights and liberties of persons”,  the implications of any ruling have to be on the minds of the court’s ministers.

The best data I can find (here, and here, for starters) suggests that Mexico’s marijuana consumption is a tiny fraction of that in the United States, the main market for our domestic production.  Permitting usage does not automatically permit commercial production.  With both the United States and Canada also growing marijuana on a commercial (though mostly illegal) scale, and the legality of exportation  not even under consideration,  there is concern, as the leftist Jornada recently noted, that the real beneficiaries of any liberalized law are not the users, but the organized crime groups that control production and distribution.

Moreover, although support for decriminalizing marijuana use has gone beyond being a “liberal” cause in the United States, the left here generally reflects mainstream “community values” and for political elites (like SCJN ministers), those values are middle-class ones, which see marijuana as a lower-class “vice” or a somewhat naughty and decadent indulgence — something done behind closed doors, or it is by no means a popular issue here, even on the left.   Although U.S. based advocacy groups (and lots of commentators today) speak of the beneficial effects of marijuana use, or its relatively benign effects, there is a fear that consumption levels would rise dramatically if domestic products were dumped on the market.  The U.S. histories all date the criminalization of marijuana back to the 1930s and name as their “villains” a few otherwise obscure police officials of the era, while Mexico’s attitudes towards weed go back much further… to the 1880s, according to historian Froylan Enciso (Nuestra historia narcótica, Penguin Random House Grupo Editorial, 2015).  If anything, opium poppy production was a more respectable business, as Sinaloa historian Luis Astorga has pointed out on more than one occasion.

Although both Enciso and Astorga argue that legalization would reduce the violence surrounding the narcotics trade, there is no guarantee that organized crime groups wouldn’t simply shift their business to other, equally or more violent activities:  human trafficking (including sex trafficking), murder-for-hire, bank robbery and the always popular protection racket.  Already, the “cartels” have been switching from marijuana to meth and heroin smuggling, which is apparently a positive move for their industry, anyway.  Whether the court’s ministers have read the two Sinaloa historians, I don’t know, but it appears the argument that legalization will limit organized crime’s activities, weighed against other considerations, is a wash.

• A rather cynical view, and one I tend to feel will have an effect, holds that the United States — conflicted as it always has been about drug use (permitted to the white suburbanites, but considered a public scourge, with Mexican “drug lords” as public enemy #1) — will not “allow” the Mexican court to rule in favor of legalization, mostly to protect itself from having to seriously look at its own usage levels and criminal justice system, especially in a presidential election year.

A “darker” version of the same is the sense that the U.S. banking and arms industries profit too much from criminalizing “drugs” to give up the fight against Mexican marijuana too easily.  With the likelihood of “cartel” money still being made from (and in) the United States, were such stories true, I would expect more scare stories in the U.S. media about the effects of this rather limited ruling here in Mexico.

On the other hand, who can say what the delayed ruling is all about, and what’s behind it?