Constitutional Court Decisions on the Criminal Punishment of Cannabis in Selected Jurisdictions and Implications for Korea

In the twenty-first century, many countries have moved toward relaxing or decriminalizing cannabis regulations, and constitutional courts and supreme courts in various jurisdictions have reached divergent conclusions on the constitutionality of criminal provisions punishing cannabis use. This article examines the case law of the U.S. Supreme Court and selected state supreme courts, the German Federal Constitutional Court, the Constitutional Court of South Africa, the Mexican Supreme Court, as well as the examples of Colombia and Italy, and compares them with the decisions of the Korean Constitutional Court in order to draw constitutional implications for Korea’s legal framework on cannabis. To this end, it analyzes the facts and reasoning structures of the leading cases, focusing on the right to privacy, general freedom of action, the right to the free development of personality, equality, the principle of proportionality and the ultima ratio principle of criminal law, and the state’s duty to protect public health. The U.S. Supreme Court, in cases such as Gonzales v. Raich, has refused to recognize cannabis use as a constitutionally protected right and has instead upheld the broad legislative discretion of Congress, while only a few states such as Alaska have afforded limited protection to private adult use under state constitutions. The German Federal Constitutional Court, in its 1994 “Cannabis decision,” held the criminal provisions themselves to be compatible with the Basic Law, but at the same time called for the discontinuation of investigation and prosecution in cases involving small amounts for personal use, thereby effectively presenting a model of limited ecriminalization through prosecutorial diversion. By contrast, the Constitutional Court of South Africa and the Mexican Supreme Court have adopted a rights-centered model of regulatory relaxation by declaring criminal sanctions on adult possession and use of cannabis in private settings unconstitutional on the basis of the right to privacy and the right to self-determination. The Korean Constitutional Court, however, has consistently upheld the constitutionality of criminal provisions on cannabis, deferring to the legislature’s assessment of the risks associated with cannabis and its duty to protect publichealth. Building on this comparative constitutional analysis, the article argues that Korean law can explore a range of legislative policy options, including the gradual expansion of medical cannabis, decriminalization or mitigation of penalties for small-scale personal use, and a re-examination of criminal-law-centered drug policy; it further suggests that future constitutional adjudication should develop a more refined framework of review based on the principles of proportionality and equality.