When discussions of issues of sex work, drugs, and so on come up, it’s not uncommon for people to confuse the idea of legalization with decriminalisation.

It sounds like they should be the same thing. After all, if something is legal, then by definition it’s not criminal? But the difference in practice turns out to have major repercussions.

When something is legalized, the starting point in the equation is illegality. The substance or act is understood to be overall restricted, except within a set of narrowly define parameters. The onus is on you to go out of your way to show that everything is above board.

Consider Marijuana in Ontario. If you want to grow your own, there are heavy restrictions of how much you are allowed to grow and you are also expected to be able to show that the seeds were purchased from a government approved source, and it’s important to show that you are not in any way selling or dispensing said

There is a very narrow list of places which are allowed to sell or provide marijuana. They must be dispensed in very specific containers, be licensed as being government approved, and be purchased in turn from specific vendors. Additionally, the form in which it can be sold is further restricted, with oils and flower being acceptable, while edibles are forbidden. The amount you are allowed to be in possession of at a given time is restricted.

In a weird sense, it is as though marijuana is still illegal, unless you can prove that one way or another the government was your dealer. Since it is still illegal, there is no pressure or grounds to release people from jail for past crimes involving marijuana. With the costs involved ultimately, it means that it’s only legal for some: both to consume and to make money off of it.

Unless there is a law specifically allowing some aspect of it, then that aspect is illegal.

In the case of decriminalization, the starting presumption is legality. It’s been de-criminalized thus shed of its criminality.

This doesn’t mean there are no restrictions or laws in place, but whereas with a legalized substance the onus is on you to show that you acquired it within the specific bounds of the law; with a decriminalized substance, the onus is on law enforcement to show that a violation of these restrictions is taking place. Unless a specific aspect of it is forbidden by law, then it is presumed legal.

The restrictions and regulations are aimed, not at controlling the substance itself, but rather the impacts of individual enjoyment of the substance has on the greater public at large. It’s about regulating personal behaviour and responsibility. Consider alcohol, for example. A person has the right to get fall down drunk. Where it becomes a matter for the law is when getting fall down drunk puts other people’s lives at risk, either in the case of the intoxicated individual driving, or of the individual posing a hazard for drivers as a stumbling pedestrian. It’s when the drunkenness leads to violent or disruptive behaviour.

In decriminalizing the substance, there is more pressure to pardon or reduce the sentences of those in prison on related charges, since the criminal considerations regarding those charges will frequently no longer apply. If the possession of marijuana, for example, is no longer a criminal act, then it no longer makes sense for people to be in prison for this reason.

Since the restrictions are potentially lesser and have more to do with personal responsibility regarding actions taken rather than financial ability to follow the law, the substance becomes more accessible to the greater public.  There is less of a divide between who can engage in the behaviour and who cannot.

A very simplified way of putting it is that in the case of decriminalization; you are innocent until proven guilty and in the case of legalization; you are guilty until proven innocent.

So why would a government choose to legalize something rather than decriminalize it?

In the case of something like marijuana, the answer is ostensibly one of public safety and regulation. The idea is, that by restricting control of the product to approved individuals, that they can limit the influence of criminal activity with regards to growth and distribution. Additionally, they can set extensive safety standards and regulate the manner in which it is made available thus creating more consistent safer products.

The reality however doesn’t align with the expressed reasoning. The extensive restrictions on where the marijuana for sale in dispensaries can be obtained, has created a monopoly on production. Only a handful of businesses meet the necessary criteria to provide stock to government dispensaries. These criteria are very restrictive and expensive, limiting their fulfilment to those with the financial resources already available.

As a result, there is little pressure for prices to be competitive when supplied to the dispensaries, which in turn leaves the customer with a higher cost per gram.

This might be acceptable, if the growing and product regulation yielded a superior product. The regulations, however, appear to have been created by people with little practical experience with either growing or using marijuana. For example, the rules regarding the level of drying required to be considered safe, is often in excess of what is considered to be good quality. It is too dry and so often has lost a significant portion of the active ingredient.

It would be akin to forcing alcohol makers to air out their product overnight prior to bottling, allowing a portion of the ethanol to vaporize and no longer be present in the drink itself.

Rather than limiting the influence or propensity towards illegal means of obtaining marijuana, they’ve created an incentive towards scoring from dealers and underground dispensaries where they can be guaranteed a better selection, quality of product, and price. Since growing illegally doesn’t come with the same restrictive criteria for how and where to grow, the cost of production is significantly lower, meaning so too can the cost to consumer. For people who use medically but can’t afford the high prices for LPs and government dispensaries, the black market can occasionally be the only means of securing sufficient quantities of their meds.

So then why?

The big answers are money and privilege.

Even while legalization, at least in this case, puts pressure on many communities to continue employing non-legal means of securing access to marijuana, it is big business.  In restricting the ways in which it is legally accessible, you restrict who is allowed to make money from it. You restrict which demographics and social groups are allowed to participate in said activity free from consequence and which are punished for those same activities. Even if those restrictions lessen with time, the financial advantage of having been able to saturate the market before anyone else is significant.

Those in power are allowed to establish monopolies and gain brand and location recognition and superiority, before anyone else is allowed near the market.

Meanwhile, those without the wealth necessary to grant their enterprise legitimacy, are instead incarcerated and thus often generating further wealth for those same people in power. From a corporate standpoint, it is win-win, as you and your buddies get rich off the legal stuff, and also rich from imprisoning your competitors by making their stuff illegal.

Not only does it criminalize the competition, it also criminalizes addiction. Desperate people who seek out alternative means of securing their addictant, who stock up or secure large quantities of it, are not considered ill and in need of treatment but are instead treated as criminals who deserve punishment.

Legalization makes it legal for some. Decriminalization makes it not a crime.