The project aims 1) to analyze the non-prosecution of cannabis-related consumption offences in Germany, 2) to assess the implementation of the Bundesverfassungsgericht's "cannabis decision" of 1994 and 3) to evaluate the eventual impact of different state-level non-prosecution policies upon consumption patterns. It is part of a larger study coordinated by the Drug Policy Research Center (DPRC) at the RAND Corporation in the United States on the effects of cannabis depenalization in the United States and in several other Western countries. The primary data collection for this project was carried out simultaneously with that of a comprehensive project examining prosecution and non-prosecution policies of all consumption-related drug offences. The present project distinguishes from this larger one for its focus on cannabis and its comparative approach. Considerable differences have been found in the non-prosecution of consumption-related drug offences across German states.

The Ger­man drug le­gis­la­tion con­tains sev­er­al pro­vi­sions al­low­ing the dis­missal of crim­in­al cases against drug users. The most rel­ev­ant of them is § 31a of the Nar­cot­ics Act (Betäubungs­mit­tel­ge­setz, Bt­MG), which was in­tro­duced in 1992. If there is no pub­lic in­terest in pro­sec­u­tion and the of­fend­er's guilt can be con­sidered minor, § 31a Bt­MG al­lows the pro­sec­utor's of­fice to dis­miss a case without con­sult­ing the court. For the ap­plic­a­tion of § 31a Bt­MG, the cru­cial concept is that of small amounts (geringe Menge), which is left un­defined by the law.
In March 1994 the Fed­er­al Con­sti­tu­tion­al Court ruled that crim­in­al cases in­volving the pos­ses­sion, pur­chase or im­port of small amounts of can­nabis for oc­ca­sion­al per­son­al use must be dis­missed be­cause both the guilt of the of­fend­er and the harm caused by the of­fence have to be con­sidered trivi­al. Crim­in­al pro­sec­u­tion in such cases can amount to a vi­ol­a­tion of the prin­ciple of pro­por­tion­al­ity and to dis­respect of the ul­tima ra­tio char­ac­ter of crim­in­al law. While de­fend­ing the con­sti­tu­tion­al­ity of the Ger­man nar­cot­ics law, the Fed­er­al Con­sti­tu­tion­al Court ar­gued that large dif­fer­ences in dis­missal rates can­not be ac­cep­ted be­cause they would amount to a ser­i­ous vi­ol­a­tion of the right of equal and non-dis­crim­in­at­ory treat­ment. The Con­sti­tu­tion­al Court then con­cluded that the in­fringe­ments of the ba­sic rights of equal treat­ment and pro­por­tion­al­ity could be avoided by im­ple­ment­ing con­sist­ent non-pro­sec­u­tion policies throughout Ger­many in cases in­volving the pos­ses­sion of small can­nabis quant­it­ies for per­son­al use.
Des­pite this rul­ing, Ger­man fed­er­al states are far from hav­ing de­veloped and car­ried out a uni­form policy of non-pro­sec­u­tion. In the Ger­man fed­er­al sys­tem, the im­ple­ment­a­tion of the law is en­trus­ted to the single states. The ex­e­cu­tion of the Con­sti­tu­tion­al Court's ver­dict should have been based on a con­sen­su­al har­mon­iz­a­tion of state policies: states were sup­posed to en­act uni­form guidelines for their pro­sec­utor's of­fices. Such a con­sensus, however, has not been reached and there­fore con­sid­er­able re­gion­al dif­fer­ences can be as­sumed to per­sist.

Pro­ject Aims
The pro­ject has three ma­jor aims:
(1)       To un­der­stand un­der which con­di­tions and for which drug amounts crim­in­al cases against can­nabis users are dis­missed by pro­sec­utor's of­fices and courts in dif­fer­ent Ger­man states
(2)       To as­sess dif­fer­ences in can­nabis non-pro­sec­u­tion policies across Ger­man states and the im­ple­ment­a­tion of the Fed­er­al Con­sti­tu­tion­al Court's de­cision of March 9, 1994
(3)       To eval­u­ate the even­tu­al im­pact of the dif­fer­ent non-pro­sec­u­tion policies on can­nabis con­sump­tion rates and pat­terns.
The pro­ject find­ings are be­ing com­pared with those ob­tained by oth­er par­al­lel, em­pir­ic­al stud­ies car­ried out in the United States, The Neth­er­lands, Aus­tralia and, to more lim­ited de­grees, in oth­er West­ern coun­tries. Paoli and Schäfer are in­volved in these com­par­at­ive ef­forts to­geth­er with sev­er­al re­search­ers of the Drug Policy Re­search Cen­ter at the RAND Cor­por­a­tion, which is co­ordin­at­ing the over­all com­par­at­ive study.

Pro­ject Ap­proach
To ful­fill the pro­jects aims, a com­bin­a­tion of re­search meth­ods were em­ployed. In ad­di­tion to re­view­ing case law, state in­struc­tions for the ex­e­cu­tion of § 31a Bt­MG and the rel­ev­ant pro­sec­utori­al and ju­di­cial stat­ist­ics, 2,011 in­vest­ig­at­ive crim­in­al pro­ceed­ings opened by pro­sec­utor’s of­fices in 2001 were col­lec­ted and ana­lyzed. More than 72% of them (1,451) con­cerned ex­clus­ively or par­tially can­nabis. 
The pro­ceed­ings were drawn from six states with dif­fer­ent in­struc­tions for ex­e­cu­tion of § 31a Bt­MG and, more gen­er­ally, dif­fer­ent ap­proaches to il­leg­al drug use: the south-east­ern Land of Bav­aria, the city-state of Ber­lin, the two west­ern states of Hesse and North Rhine-West­phalia, Sax­ony, which was part of the Ger­man Demo­crat­ic Re­pub­lic up to 1989, and Schleswig-Hol­stein in the North. With­in these six states, the twenty-four Landgericht (Ap­peal Court) dis­tricts (here­in­after called ju­di­cial dis­tricts) were se­lec­ted.
In ad­di­tion to the case ana­lys­is, ex­pert in­ter­views were car­ried out in el­ev­en of the se­lec­ted ju­di­cial dis­tricts. Be­sides Ber­lin, the ju­di­cial dis­trict of the largest city and a rur­al dis­trict were chosen in each of the five re­main­ing states. In each of these ju­di­cial dis­tricts, at least three po­lice of­ficers, two pro­sec­utors, two judges and one at­tor­ney were in­ter­viewed. For each type of in­ter­viewee a spe­cif­ic pro­tocol was de­veloped.

Pro­ject Status and Res­ults
The pro­ject could prove sub­stan­tial dif­fer­ences in both the for­mu­la­tion and im­ple­ment­a­tion of can­nabis non-pro­sec­u­tion policies across Ger­man states. Sev­er­al north­ern and middle states (among oth­ers Ham­burg, Lower-Sax­ony, North Rhine-West­phalia and Schleswig-Hol­stein) have ad­op­ted guidelines or re­com­mend­a­tions re­quir­ing or al­low­ing the non-pro­sec­u­tion in cases in­volving ten to fif­teen grams of can­nabis and, in Schleswig-Hol­stein, up to thirty grams of can­nabis. In con­trast, the south­ern states and sev­er­al east­ern ones (such as Baden-Württem­berg, Bav­aria, Sax­ony-An­halt and Thuringia) have is­sued more re­strict­ive guidelines, rul­ing that pro­sec­utor's of­fices and courts can only dis­miss cases in­volving less than six grams of can­nabis. The more lib­er­al states also al­low dis­missals for re­peat of­fend­ers, where­as con­ser­vat­ive states usu­ally rule out this pos­sib­il­ity or al­low dis­missals only in ex­cep­tion­al cir­cum­stances. Bre­men and Mecklen­burg-West Pom­er­a­nia are the only two states that have is­sued no guidelines so far.
To a large ex­tent these dif­fer­ent rules shape the de­cision-mak­ing of the pro­sec­utor’s of­fices, though lim­ited vari­ation was also found among the ju­di­cial dis­tricts of the same state. The per­cent­age of un­con­di­tion­ally dis­con­tin­ued pro­sec­u­tions (this cat­egory in­cludes the cases dis­missed un­der § 31a Bt­MG as well as those dis­missed un­der § 153 StPO and § 45 para. 1 and 2 JGG) ranges between 49% in Bav­aria and over 90% in Ber­lin and Schleswig-Hol­stein. Charges and pro­sec­utori­al ap­plic­a­tions for a pen­al or­der (Straf­be­fehl) are cor­res­pond­ingly re­versed. Where­as in Bav­aria and North Rhine-West­phalia pro­ceed­ings are ini­ti­ated in about 30% of all cases, a cor­res­pond­ing de­cision is taken only in 11% of the cases in Hesse and in 5% of the cases in Ber­lin and Schleswig-Hol­stein. 
It was not pos­sible to fully ana­lyze the im­pact of the dif­fer­ent non-pro­sec­u­tion policies pur­sued by Ger­man states on can­nabis con­sump­tion rates and pat­terns due to the lack of drug use pre­val­ence time series for the single Ger­man states. However, the data in­dic­ate that there is no cor­rel­a­tion between the pro­sec­u­tion policy ad­op­ted and self-re­por­ted rates of can­nabis con­sump­tion. This cor­rob­or­ates sim­il­ar find­ings from for­eign stud­ies in the field.

Pro­ject Fund­ing

The pro­ject was fun­ded by the U.S. Robert Wood John­son Found­a­tion and is part of a lar­ger study co­ordin­ated by the Drug Policy Re­search Cen­ter at the RAND Cor­por­a­tion on the ef­fects of can­nabis de­penal­iz­a­tion in the United States and in sev­er­al oth­er West­ern coun­tries.
The primary data col­lec­tion was car­ried out sim­ul­tan­eously with that of a lar­ger pro­ject ex­amin­ing pro­sec­u­tion and non-pro­sec­u­tion policies of all con­sump­tion-re­lated drug of­fences, which was com­mis­sioned by the Ger­man Fed­er­al Min­istry of Health and Pub­lic Se­cur­ity.