Marihuana: A Signal of Misunderstanding
Chapter V
Marihuana and Social Policy
"The difficulty in life is the choice."
George Moore (1900)
A constant tension exists in our society between individual liberties and the need
for reasonable societal restraints. It is easy to go too far in either direction,
and this tendency is particularly evident where drugs are concerned.
We have guided our decision-making by the belief that the state is obliged to justify
restraints on individual behavior. Too often individual freedoms are submerged in
the passions of the moment, and when that happens, the public policy may be determined
more by rhetoric than by reason. Our effort has been to minimize the emotional and
emphasize the rational in this Report.
Drugs In a Free Society
A free society seeks to provide conditions in which each of its members may develop
his or her potentialities to the fullest extent. A premium is placed on individual
choice in seeking self-fulfillment. This priority depends upon the capacity of free
citizens not to abuse their freedom, and upon their willingness to act responsibly
toward others and toward the society as a whole. Responsible behavior, through individual
choice, is both the guarantor and the objective of a free society.
DRUGS AND SOCIAL RESPONSIBILITY
The use of drugs is not in itself an irresponsible act. Medical and scientific uses
serve important individual and social needs and are often essential to our physical
and mental well-being. Further, the use of drugs for pleasure or other non-medical
purposes is not inherently irresponsible; alcohol is widely used as an acceptable
part of social activities.
We do think the use of drugs is clearly irresponsible when it impedes the individual's
integration into the economic and social system. A preference for individual productivity
and contribution to social progress in a general sense still undergirds the American
value structure, and we emphasize the policy-maker's duty to support this preference
in a public policy judgment.
At the same time, in light of the emerging leisure ethic and the search for individual
meaning and fulfillment noted in Chapter 1, we cannot divorce social policy from
the questions raised by the recreational use of drugs. Productivity and recreation
both have a place in the American ethical system. They are not inconsistent unless
the individual's use of leisure time inhibits his productive role in society.
Drugs should be servants, not masters. They become masters when they dominate an
individual's existence or impair his faculties. To the extent that any drug, including
alcohol, carries with it risks to the well-being of the user and seriously undermines
his effectiveness in the society, that drug becomes a matter of concern for public
policy.
An essential step in the process of policy-formation is a determination of the circumstances
under which use of any given drug' poses such risks. For some drugs, the risks may
be so great that all permissible measures should be taken to eliminate use. For
other drugs, such risks may be present only under certain specific circumstances,
in which case society may defer to responsible individual choice on the matter of
recreational use but take appropriate steps to minimize the incidence and consequences
of dysfunctional use. In our Report next year, for which studies are already underway,
we will consider from this perspective the whole range of drugs now used for non-medical
purposes.
A Social Control Policy for Marihuana
In formulating a Marihuana policy, our strongest concern is with irresponsible use,
whether it be too often, too much, indiscriminate, or under improper circumstances.
The excessive or indiscriminate use of any drug is a serious social concern; and
this is particularly true of marihuana since we still know very little about the
effects of long term, heavy use. We have little doubt that the substantial majority
of users, under any social control policy, including the existing system, do not
and would not engage in irresponsible behavior.
In identifying the -appropriate social control policy for marihuana, we have found
it helpful to consider the following policy options:
I Approval of Use.
II Elimination of Use.
III Discouragement of Use.
IV Neutrality Toward Use.
APPROVAL OF USE
Society should not approve or encourage the recreational use of any drug, in public
or private. Any semblance of encouragement enhances the possibility of abuse and
removes, from a psychological standpoint, an effective support of individual restraint.
For example, so long as this society (not only the government, but other institutions
and mass advertising as well) in effect approved of the use of tobacco, the growing
medical consensus about the dangers of excessive use did not make a significant
impression on individual judgment. With the Surgeon General's Report on Tobacco
in 1964, Smoking and Health, a very real change has occurred in the way society
now thinks about cigarettes.
The institutions of society definitely add their influences to the variety of social
pressures which persuade individuals to use any kind of drugs. Rational social policy
should seek to minimize such social pressures, whether they come from peers, from
the media, from social custom, or from the user's sense of inadequacy. Official
approval would inevitably encourage some people to use the drug who would not otherwise
do so, and would also increase the incidence of heavy or otherwise irresponsible
use and its complications. On this basis we reject policy option number one, approval
of use.
ELIMINATION OF USE
For a half-century, official social policy has been not only to discourage use but
to eliminate it (option number two). With the principal responsibility for this
policy assigned to law enforcement, its implementation reached its zenith in the
late 1950's and early 1960's when marihuana-related offenses were punishable by
long periods of incarceration. This policy grew out of a distorted and greatly exaggerated
concept of the drug's ordinary effects upon the individual and the society. On the
basis of information then available, marihuana was not adequately distinguished
from other problem drugs and was assumed to be as harmful as the others.
The increased incidence of use, intensive scientific reevaluation, and the spread
of use to the middle and upper socioeconomic groups have brought about the informal
adoption of a modified social policy. On the basis of our opinion surveys and our
empirical studies of law enforcement behavior, we are convinced that officialdom
and the public are no longer as punitive toward marihuana use as they once were.
Now there exists a more realistic estimate of the actual social impact of marihuana
use. School and university administrators are seldom able to prevent the use of
marihuana by their students and personnel and are increasingly reluctant to take
disciplinary action against users. Within the criminal justice system, there has
been a marked decline in the severity of the response to offenders charged with
possession of marihuana.
In our survey of state enforcement activities, only 11% of all marihuana arrests
resulted from active investigative activity, and most of those were in sale situations.
For the most part, marihuana enforcement is a haphazard process; arrests occur on
the street, in a park, in a car, or as a result of a phone call. Among those arrested,
approximately 50% of the adults and 70% of the juveniles are not processed through
the system; their cases are dismissed by the police, by the prosecutors or by the
courts. Ultimately less than 6% of all those apprehended are incarcerated, and very
few of these sentences are for possession of small amounts for personal use.
In the law enforcement community, the major concern is no longer marihuana but the
tendency of some users to engage in other irresponsible activity, particularly the
use of more dangerous drugs. Official sentiment now seems to be a desire to contain
use of the drug as well as the drug subculture, and to minimize its spread to the
rest of the youth population. Law enforcement policy, both at the Federal and State
levels, implicitly recognizes that elimination is impossible at this time.
The active attempt to suppress all marihuana use has been replaced by an effort
to keep it within reasonable bounds. Yet because this policy still reflects a view
that marihuana smoking is itself destructive enough to justify punitive action against
the user, we believe it is an inappropriate social response.
Marihuana's relative potential for harm to the vast majority of individual users
and its actual impact on society does not justify a social policy designed to seek
out and firmly punish those who use it. This judgment is based on prevalent, use
patterns, on behavior exhibited by the vast majority of users and on our interpretations
of existing medical and scientific data. This position also is consistent with the
estimate by law enforcement personnel that the elimination of use is unattainable.
In the case of experimental or intermittent use of marihuana, there is room for
individual judgment. Some members of our society believe the decision to use marihuana
is an immoral decision. However, even during Prohibition, when many people were
concerned about the evils associated with excessive use of alcohol, possession for
personal use was never outlawed federally and was made illegal in only five States.
Indeed, we suspect that the moral contempt in which some of our citizens hold the
marihuana user is related to other behavior or other attitudes assumed to be associated
with use of the drug. All of our data suggest that the moral views of the overwhelming
majority of marihuana users are in general accord with those of the larger society.
Having previously rejected the approval policy (option number one), we now reject
the eliminationist policy (option number two). This policy, if taken seriously,
would require a great increase in manpower and resources in order to eliminate the
use of a drug which simply does not warrant that kind of attention.
DISCOURAGEMENT OR NEUTRALITY
The unresolved question is whether society should try to dissuade its members from
using marihuana or should defer entirely to individual judgment in the matter, remaining
benignly neutral. We must choose between policies of discouragement (number three)
and neutrality (number four). This choice is a difficult one and forces us to consider
the limitations of our knowledge and the dynamics of social change. A number of
considerations, none of which is conclusive by itself, point at the present time
toward a discouragement policy. We will discuss each one of them separately.
1. User Preference Is Still Ambiguous
Alcohol and tobacco have long been desired by large numbers within our society and
their use is deeply ingrained in the American culture. Marihuana, on the other hand,
has only recently achieved a significant foothold in the American experience, and
it is still essentially used more by young people. Again, the unknown factor here
is whether the sudden attraction to marihuana derives from its psychoactive virtues
or from its symbolic status.
Throughout this Commission's deliberations there was a recurring awareness of the
possibility that marihuana use may be a fad which, if not institutionalized, will
recede substantially in time. Present data suggest that this is the case, and we
do not hesitate to say that we would prefer that outcome. To the extent that conditions
permit, society is well advised to minimize the number of drugs which may cause
significant problems. By focusing our attention on fewer rather than more drugs,
we may be better able to foster responsible use and diminish the consequences of
irresponsible use.
The more prudent course seems to be to retain a social policy opposed to use, attempting
to discourage use while at the same time seeking to deemphasize the issue. Such
a policy leaves us with more options available when more definitive knowledge of
the consequences of heavy and prolonged marihuana use becomes available.
2. Continuing Scientific Uncertainty Precludes Finality
In 1933 when Prohibition was repealed, society was cognizant of the effects of alcohol
as a drug and the adverse consequences of abuse. But, because so many people wished
to use the drug, policy-makers chose, to run the risk of individual indiscretion
and decided to abandon the abstentionist policy. There are many today who feel that
if the social, impact of alcohol use had then been more fully understood, a policy
of discouragement rather than neutrality would have been adopted to minimize the
negative aspects of alcohol use.
Misunderstanding also played an important part when the national government adopted
an eliminationist, marihuana policy in 1937. The policy-makers knew very little
about the effects or social impact of the drug; many of their hypotheses were speculative
and, in large measure, incorrect.
Nevertheless, the argument that misinformation in 1937 automatically compels complete
reversal of the action taken at that time is neither reasonable nor logical. While
continuing concern about the effects of heavy, chronic use is not sufficient reason
to maintain an overly harsh public policy, it is still a significant argument for
choosing official discouragement in preference to official neutrality.
3. Society's Value System Is In a State of Transition
As discussed in Chapter 1, two central influences in contemporary American life
are the individual search for meaning within the context of an increasingly depersonalized
society, and the collective search for enduring American values. In Chapter IV,
we noted that society's present ambivalent response to marihuana use reflects these
uncertainties.
For the reasons discussed in the previous Chapters, a sudden abandonment of an official
policy of elimination in favor of one of neutrality toward marihuana would have
a profound reverberating impact on social attitudes far beyond the one issue of
marihuana use. We believe that society must have time to consider its image of the
future. We believe that adoption of a discouragement policy toward marihuana at
this time would facilitate such a reappraisal while official neutrality, under present
circumstances, would impede it.
4. Public Opinion Presently Opposes Marihuana Use
For whatever reasons, a substantial majority of the American public opposes the
use of marihuana, and would prefer that their fellow citizens abstain from using
it. In the National Survey, 64% of the adult public agreed with the statement that
"using marihuana is morally offensive` (40% felt the same way about alcohol).
Although this majority opinion is not by any means conclusive, it cannot be ignored.
We are well aware of the skeptics in with which marihuana user, and those sympathetic
to their wishes, view the policy making process; and we are particularly concerned
about the indifference to or disrespect for law manifested by many citizens and
particularly the youth.
However, we are also apprehensive about the impact of a major change in social policy
on that larger segment of our population which supports the implications of the
existing social policy. They, too, might lose respect for a policy-making establishment
which appeared to bend so easily to the wishes of a "lawless" and highly
vocal minority.
This concern for minimizing cultural dislocation must, of course, be weighed against
the relative importance of contrary arguments. For example, in the case of desegregation
in the South, and now in the North, cult-Lire shock had to be accepted in the light
of the fundamental precept at issue. In the, case. of marihuana, there is no fundamental
principle supporting the use of the drug, and society is not compelled to approve
or be neutral toward it. The opinion of the majority is entitled to greater weight.
Looking again to the, experience with Prohibition, when an abstentionist policy
for alcohol was adopted on the national level in 1918, its proponents were not blind
to the vociferous opposition of a substantial minority of the people. By the late
1920's and early 1930's, the ambivalence of public opinion toward alcohol use and
the unwillingness of large numbers of people to comply with the new social policy
compelled reversal of that policy. Even many of its former supporters acknowledged
its futility.
With marihuana, however, the prevailing policy of eliminating use had never been
opposed to any significant degree until the mid-1960's. Unlike the prohibition of
alcohol, which had been the subject of public debate off and on for 60 years before
it was adopted, present marihuana policy has not until now engaged the public opinion
process, some 50 years after it first began to be used. Majority sentiment does
not appear to be as flexible as it was with alcohol.
5. Neutrality Is Not Philosophically Compelled
Much of what was stated above bespeaks an acute awareness by the Commission of the
subtleties of the collective consciousness of the American people, as shown in the
National Survey. There is a legitimate concern about what the majority of the non-using
population thinks about marihuana use and what the drug represents in the public
mind. The question is appropriately asked if we are suggesting that the majority
in a free society may impose its will on an unwilling minority even though, as it
is claimed, uncertainty, speculation, and a large degree of misinformation form
the basis of the predominant opinion. If we have nothing more substantial than this,
the argument goes, society should remain neutral.
To deal with this contention, one must distinguish between ends and means. Policy-makers
must choose their objectives with a sensitivity toward the entire social fabric
and a vision of the good society. In such a decision, the general public attitude
is a significant consideration. The preferred outcome in a democratic society cannot
be that of the policy-makers alone; it must be that of an informed public. Accordingly,
the policy-maker must consider the dynamic relationship between perception and reality
in the public mind. Is the public consensus based on a real awareness of the facts?
Does the public really understand what is at stake? Given the best evidence available,
would the public consensus remain the same?
Assuming that dominant opinion opposes marihuana use, the philosophical issue is
raised not by the goal but by how it is implemented. At this point, the interests
of the unwilling become important. For example, the family unit and the institution
of marriage are preferred means of group-living and child-rearing in our society.
As a society, we are not neutral. We officially encourage matrimony by giving married
couples favorable tax treatment; but we do not compel people to get married. If
it should become public policy to try to reduce the birth rate, it is unlikely that
there will be laws to punish those who exceed the preferred family size, although
we may again utilize disincentives through the tax system. Similarly, this Commission
believes society should continue actively to discourage people from using marihuana,
and any philosophical limitation is relevant to the means employed, not to the goal
itself.
FOR THESE REASONS, WE RECOMMEND TO THE PUBLIC AND ITS POLICY-MAKERS A SOCIAL CONTROL
POLICY SEEKING TO DISCOURAGE MARIHUANA USE, WHILE CONCENTRATING PRIMARILY ON THE
PREVENTION OF HEAVY AND VERY HEAVY USE.
We emphasize that this is a policy for today and the immediate future; we do not
presume to suggest that this policy embodies eternal truth. Accordingly, we strongly
recommend that our successor policy planners, at an appropriate time in the future,
review the following factors to determine whether an altered social policy is in
order: the state of public opinion, the extent to which members of the society continue
to use the drug, the developing scientific knowledge about the effects and social
impact of use of the drug, and the evolving social attitude toward the place of
recreation and leisure in a work-oriented society. In our second Report next year,
we will carefully review our findings to see if our perceptions have changed or
if society has changed at that time.
Implementing The Discouragement Policy
Choice of this social control policy does not automatically dictate any particular
legal implementation. As we noted in Chapter 1, there is a disturbing tendency among
participants in the marihuana debate to assume that a given statement of the drug's
effects, its number of users or its social impact compels a particular statutory
scheme.
Law does not operate in a social vacuum, and it is only one of the institutional
mechanisms which society can utilize to implement its policies. Consequently, the
evaluation of alternative legal approaches demands not only logic but also a delicate
assessment of the mutual relationship between the law and other institutions of
social control, such as the church, the family and the school.
THE ROLE OF LAW IN EFFECTIVE SOCIAL CONTROL
Social control is most effectively guaranteed by the exercise of individual self-discipline.
Elementary social psychology teaches us that restraint generated within is infinitely
more effective and tenacious than restraint imposed from without.
One of the participants at our "Central Influences" Seminar observed:
When people grow up into a society, the principal aim is to internalize drives-that
is, I assume they come up 'with certain drives which can be satisfied in many ways
and you're trying to internalize, ways of satisfying those drives which will be
compatible with life in a community and also satisfying to the individual. The external
restraints can only complement this, they cannot possibly substitute for it.
The supplemental effect of external restraints, particularly legal restraints, must
also be weighed against the nature of the control sought. It was put this way at
our Seminar:
Think of the social welfare function as a mountain-the hill of the Lords really.
Large parts of it are something of a plateau; that is you can be all sorts of places
on it and be safe. You don't have to maximize. This is an economist's fallacy. You
can have all sorts of variations, you can be Socialists, Capitalists, Mormons, Adventists
and get away with it-even Liberals. But there are cliffs, and you can fall off of
them. This is what we are worrying about today. We are nervous about these cliffs.
The "no-no's"-as the kids call them-are the fences on these cliffs. That
is, we have set up taboos and say there's a cliff there. Now -one of the problems
socially is that we set up "no-no's" where there are no cliffs. There
are no cliffs and people jump over these [fences] and they say, "No cliffs!
See no cliffs!" [Then, over other fences-and] chop-chop-chop-crash! See, it's
just as dangerous to set up fences without any cliffs as not have fences where there
are cliffs.
To this functional consideration of external restraint, we must also add the philosophical
faith in the responsible exercise of individual judgment which is the essence of
a free society. To illustrate, a preference for individual productivity underlies
this society's opposition to indiscriminate drug use, the fact that so few of the
24 million Americans who have tried marihuana use it, or have used it, irresponsibly,
testifies to the extent to which they have internalized that value.
The hypothesis that widespread irresponsibility would attend freer availability
of marihuana suggests not that a restrictive policy is in order but rather that
a basic premise of our free society is in doubt. We note that the escalation thesis,
used as an argument against marihuana rather than as a tool for understanding individual
behavior, is really a manifestation of skepticism about individual vulnerabilities.
For example, one-half of the public agreed with the statement that "if marihuana
were made legal, it would make drug addicts out of ordinary people."
At the same time, we do feel that the threat of excessive use is most potent with
the young. In fact, we think all drug use should continue to be discouraged among
the young, because of possible adverse effects on psychological development and
because of the lesser ability of this part of the population to discriminate between
limited and excessive use.
Social policy implementation in this regard is extraordinarily difficult. For example,
although existing social policies toward tobacco, alcohol and marihuana alike oppose
their use by the young, those policies are far from being fully effective. For example:
Tobacco
The National Survey (1971) indicates that of young people age 12-to-17,
- 50 % have smoked at one, time or another;
- 15% smoke now; and
- At least 8% smoke at least a half a pack a day.
In a 1970 sample of smoking habits in the 12-to-18 population conducted for the
National Clearinghouse for Smoking and Health, it was found that:
- 18.5% of the boys and 11.9% of the girls were regular smokers; and
- About 8% of the boys and 5% of the girls smoked more than a half a pack a day.
Alcohol
The National Survey also ascertained the drinking pattern during the previous month
of young people aged 12-to-17, finding that:
- At least 23% had used beer during that month, at least 14% had used wine and at
least 12% had used hard liquor; and
- 6% had used beer five or more days during the months 3% had used wine five or more
days, and 3% had used hard liquor five or more days.
Marihuana
Of the 12-to-17 population, the Survey found that:
- 15% of this population had tried marihuana;
- At least 6 % still use it; and
- Less than 1% use it once a day or more
The inclination of so many young people to experiment with drugs is a reflection
of a so-called successful socialization process on one hand, and of society's ambivalence
to the use of drugs on the other. This entire matter will occupy much of our attention
in the coming year, but it is essential that we make a few anticipatory comments
now.
This nation tries very had to instill in its children independence, curiosity and
a healthy self-assurance. These qualities guarantee a dynamic, progressive society.
Where drugs are concerned, however, we have relied generally on authoritarianism
and on obedience. Drug education has generally been characterized by overemphasis
of scare tactics. Some segments of the population have been reluctant to inform
for fear of arousing curiosity in young minds. Where drugs are concerned, young
people are simply supposed to nod and obey. -
This society has always been and continues to be ambivalent about the non-medical
(in the strict sense) use of drugs. And this ambivalence does not escape our children.
If we can come to grips with this issue, we might convince our youth that the curiosity
that is encouraged in other aspects of our culture is undesirable where drugs are
concerned.
The law is at best a highly imperfect reflection of drug policy. The laws proscribing
sale of tobacco to minors are largely ignored. Prohibitions of sale of alcohol to
minors are enforced sporadically. As to marihuana, there are areas throughout this
nation where possession laws are not enforced at all. In other sections, such proscriptions
are strictly enforced, with no apparent decrease in marihuana use.
As a guiding doctrine for parents and children, the law is certainly confusing when
it imposes widely varying punishments in different states, and even in different
courts of the same state, all for use of the same substance, marihuana. That marihuana
use can be treated as a petty offense in one state and a felony in another is illogical
and confusing to even the most sincere of parents.
The law is simply too blunt an instrument to manifest the subtle distinctions we
draw between the motivations and the circumstances of use. At the same time, legal
status carries a certain weight of its own, and other institutions must take account
of the law in performing their functions.
In legally implementing our recommended social policy, we seek to maximize the ability
of our schools, churches and families to be open and honest in discussing all drugs,
including marihuana. The law must assist, not impede. In this respect, we note with
concern the counterproductive tendency in our society to seek simple solutions to
complex problems. Since the statutory law is a simple tool, the tendency in our
society to look to the law for social control is particularly strong.
We have discussed the four basic social policy objectives of elimination, discouragement,
neutrality and approval of marihuana use and have selected discouragement of use,
with emphasis on prevention of heavy and very heavy use, as our generalized aim.
We have considered three legal responses, each with a wide range of alternatives:
1. Total Prohibition.
2. Partial Prohibition.
3. Regulation.
TOTAL PROHIBITION
The distinctive feature of a total prohibition scheme is that all marihuana-related
behavior is prohibited by law. Under the total prohibition response now in force
in every state and at the federal level, cultivation, importation, sale, gift or
other transfer, and possession are all prohibited acts. In 11 states and the District
of Columbia, simply being present knowingly in a place where marihuana is present
is also prohibited; and many states prohibit the possession of pipes or other smoking
paraphernalia. For our purposes, the key feature of the total prohibition approach
is that even possession of a small amount in the home for personal use is prohibited
by criminal law.
From the very inception of marihuana control legislation, this nation has utilized
a policy of a total prohibition, far more comprehensive than the restrictions established
during the prohibition of alcohol.
Until recent years, society was operating under an eliminationist policy. The exaggerated
beliefs about the drug's effects, social impact, and user population virtually dictated
this legal approach. During this entire, period, total prohibition was sought through
the use of heavier and heavier penalties until even first-time possession was a
felony in every jurisdiction, and second possession offenses generally received
a mandatory minimum sentence without parole or probation. Yet the last few years
have seen society little by little abandoning the eliminationist policy in favor
of a containment policy.
Under the total prohibition umbrella, this containment policy has been implemented
by a unique patchwork of legislation, informal prosecutorial policy and judicial
practice. Possession is now almost everywhere a misdemeanor. Although some term
of incarceration remains as a penalty for possessors, it is generally not meted
out to young first offenders or to possessors of small -amounts. Instead, most such
offenders are dismissed or informally diverted to agencies outside the criminal
system by those within the system who are trying to help them avoid the stigma of
a criminal record.
Offenders who are processed within the criminal justice system generally receive
fines and/or probation. In many jurisdictions, enforcement officials make little
or no effort to enforce possession proscriptions, concentrating instead on major
trafficking. Possessors are generally arrested only when they are indiscreet or
when marihuana is found incident to questioning or apprehension resulting from some
other violation. From our surveys, state and federal, we have found that only minimal
effort is made to investigate marihuana possession cases.
Such a tendency is a reflection of the adoption of a containment policy. By acting
only when marihuana appears above ground, enforcement officials are helping to keep
its use underground. The shift away from the elimination policy has been matched
by a similar shift in legal implementation, but the distinctive feature of the total
prohibition scheme still remains: all marihuana-related behavior, including possession
for personal use within the home, is prohibited by criminal law.
Is such a response an appropriate technique for achieving the social control policy
we outlined above? The key question for our purposes is whether total criminal prohibition
is the most suitable or effective way to discourage use and whether it facilitates
or inhibits a concentration on the reduction and treatment of irresponsible use.
We are convinced that total prohibition frustrates both of these objectives for
the following reasons.
1. Application of the Criminal Law to Private Possession Is Philosophically
Inappropriate
With possession and use of marihuana, we are dealing with a form of behavior which
occurs generally in private where a person possesses the drug for his own use. The
social impact of this conduct is indirect, arising primarily in cases of heavy or
otherwise irresponsible use and
from the drugs symbolic aspects. We do not take the absolutist position that society
is philosophically forbidden from criminalizing any kind of "private"
behavior. The phrase "victimless crimes," like "public, health hazard,
has become a rhetorical excuse for avoiding basic social policy issues. We have
chosen a discouragement policy on the basis of our evaluation of the actual and
potential individual and social impact of marihuana use. Only now that we have done
so can we accord appropriate weight to the nation's philosophical preference for
individual privacy.
On the basis of this evaluation we believe that the criminal law is too harsh a
tool to apply to personal possession even in the effort to discourage use. It implies
an overwhelming indictment of the behavior which we believe is not appropriate.
The actual and potential harm of use of the drug is not great enough to justify
intrusion by the criminal law into private behavior, a step which our society takes
only 'with the greatest reluctance.
2. Application of the Criminal Law Is Constitutionally Suspect
The preference for individual privacy reflected in the debate over the philosophical
limitations on the criminal law is also manifested in our constitutional jurisprudence.
Although no court, to our knowledge, has held that government may not prohibit private
possession of marihuana, two overlapping constitutional traditions do have important
public policy implications in this area.
The first revolves around the concept that in a free society, the legislature may
act only for public purposes. The "police powers" of the states extend
only to the "public health, safety and morals." In the period of our history
when the people most feared interference with their rights by the government, it
was generally accepted that this broad power had an inherent limitation. For example,
early prohibitions of alcohol possession were declared unconstitutional on the basis
of reasoning such as that employed by the Supreme Court of Kentucky in 1915 in the
case of Commonwealth v. Campbell:
It is not within the competency of government to invade the privacy of the citizen's
life and to regulate his conduct in matters in which alone is concerned, or to prohibit
him any liberty the exercise which will not directly injure society.
Noting that the defendant was "not charged with having the liquor in his possession
for the purpose of selling it, or even giving it to another," and that "ownership
and possession cannot be denied when that ownership and possession is not in itself
injurious to the public," the Kentucky court concluded that:
The right to use liquor for one's own comfort, if they use it without injury to
the public, is one of the citizen's natural and inalienable rights.... We hold that
the police power-vague and wide and undefined as it is-has limits. . . .
Even the perceived dangers of opium were not enough to convince some members of
the judiciary that the government could prohibit possession. It is historically
instructive to consider these words, penned in 1890, by Judge Scott in Ah Lim v
Territory:
I make no question but that the habit of smoking opium may be repulsive and degrading.
That its effect would be to shatter the nerves and destroy the intellect; and that
it may tend to the increase of the pauperism and crime. But there is a vast difference
between the commission of a single act, and a confirmed habit. There is a distinction
to be recognized between the use and abuse of any article or substance.... If this
act must be held valid it is hard to conceive of any legislative action affecting
the personal conduct, or privileges of the individual citizen, that must not be
upheld.... The prohibited act cannot affect the public in any way except through
the primary personal injury to the individual, if it occasions him any injury. It
looks like a new and extreme step under our government in the field of legislation,
if it really was passed for any of the purposes upon which that character of legislation
can be sustained, if at all.
As a matter of constitutional history, a second tradition, the application of specific
provisions in the Bill of Rights, has generally replaced the notion of "inherent"
limitations. The ultimate effect is virtually the same, however. The Fourth Amendment's
proscription of "unreasonable searches and seizures" reflects a constitutional
commitment to the value of individual privacy. The importance of the Fourth Amendment
to the entire, constitutional scheme was eloquently described by Justice Brandeis
in 1928 in the case of Olmstead v U.S.:
The makers of our Constitution undertook to secure conditions favorable to the pursuit
of happiness. They recognized the significance of man's spiritual nature, of his
feelings and his intellect. They knew that only a part of the pain, pleasure and
satisfaction of life are to be found in material things. They sought to protect
Americans in their beliefs, their thoughts, their emotions and their sensations.
They conferred, as against the Government, the right to be let alone-the most comprehensive
of rights and the right most valued by civilized men.
Although the Fourth Amendment is itself a procedural protection, the value of privacy
which it crystallizes is often read in conjunction with other important values to
set substantive limits on legislative power. The Supreme Court, in the case of Griswold
vs. Connecticut, held in 1965 that Connecticut could not constitutionally prohibit
the use of birth control devices by married persons. Although the Justices did not
agree completely on the reasons for their decision, Justice Douglas stated in the
opinion of the Court:
The present case, then, concerns a relationship lying within the zone of privacy
created by several fundamental constitutional guarantees. And it concerns a law
which, in forbidding the use of contraceptives rather than regulating their manufacture
or sale, seeks to achieve its goals by means of having a maximum destructive impact
upon that relationship. Such a law cannot stand in light of the familiar principle,
so often applied by this Court, that a "governmental purpose to control or
prevent activities constitutionally subject to state regulation may not be achieved
by means which sweep unnecessarily broadly and thereby invade the area of protected
freedom." (citation omitted) Would we allow the police to search the sacred
precincts of marital bedrooms for telltale signs of the use of contraceptives? The
very idea is repulsive to the notions of privacy surrounding the marriage relationship.
Four years later, the Supreme Court, in Stanley v. Georgia, held that even though
obscenity is not "speech" protected by the First Amendment, a state cannot
constitutionally make private possession of obscene material a crime. The Court's
reasoning is revealed in the following language:
[The] right to receive information and ideas, regardless of their social worth,
(citation omitted), is fundamental to our free society. Moreover, in the context
of this case- a prosecution for mere possession of printed or filmed matter in the
privacy of a person's own home-that right takes on an added dimension. For also
fundamental is the right to be free, except in very limited circumstances, from
unwanted governmental intrusions into one's privacy ...
While the judiciary is the governmental institution most directly concerned with
the protection of individual liberties, all policy-makers have a responsibility
to consider our constitutional heritage when framing public policy. Regardless of
whether or not the courts would overturn a prohibition of possession of marihuana
for personal use in the home, we are necessarily influenced by the high place traditionally
occupied by the value of privacy in our constitutional scheme.
Accordingly, we believe that government must show a compelling reason to justify
invasion of the home in order to prevent personal use of marihuana. We find little
in marihuana's effects or in its social impact to support such a determination.
Legislators enacting Prohibition did not find such a compelling reason 40 years
ago; and we do not find the situation any more compelling for marihuana today.
3. Total Prohibition Is Functionally Inappropriate
Apart from the philosophical and constitutional constraints outlined above, a total
prohibition scheme carries with it significant institutional costs. Yet it contributes
very little to the achievement of our social policy. In some ways it actually inhibits
the success of that policy.
The primary goals of a prudent marihuana social control policy include preventing
irresponsible use of the drug, attending to the consequences of such use, and deemphasizing
use in general. Yet an absolute prohibition of possession and use inhibits the ability
of other institutions to contribute actively to these objectives. For example, the
possibility of criminal prosecution deters users who are experiencing medical problems
from seeking assistance for fear of bring attention to themselves. In addition,
the illegality of possession and use creates difficulties in achieving an open,
honest educational program, both in the schools and in the home.
In terms of the social policy objective of discouraging use of the drug, the legal
system can assist that objective in three ways: first, by deterring people from
use; second, by symbolizing social opposition to use; and finally, by cutting off
supply of the drug.
The present illegal status of possession has not discouraged an estimated 24 million
people from trying marihuana or an estimated eight million from continuing to use
it. Our survey of the country's state prosecuting attorneys shows that 53% of them
do not believe that the law has more than a minimal deterrent effect in this regard.
Moreover, if the present trend toward passive enforcement of the marihuana law continues,
the law ultimately will deter only indiscreet use, a result achieved as well by
a partial prohibition scheme and with a great deal more honesty and fairness.
A major attraction of the law has been its symbolic value. Yet, society can symbolize
its desire to discourage marihuana use in many other, less restrictive ways. The
warning labels on cigarette packages serve this purpose, illustrating that even
a regulatory scheme could serve a discouragement policy. During Prohibition, the
chosen statutory implementation symbolized society's opposition to the use of intoxicating
beverages; yet, most jurisdictions did not think it necessary to superimpose a proscription
of possession for personal use in the home.
Finally, prohibiting possession for personal use has no substantive relation to
interdicting supply. A possession penalty may make enforcement of proscriptions
against sale a little easier, but we believe this benefit is of minimal importance
in light of its costs.
The law enforcement goal repeatedly stated at both the federal and state levels
has been the elimination of supply and the interdiction of trafficking. These avowed
aims of law enforcement make sense, since they are the most profitable means of
employing its manpower and resources in this area.
Indeed, the time consumed in arresting Possessors is inefficiently used when contrasted
with the same amount of time invested in apprehending major dealers. Although a
credible effort to eliminate supply requires prohibitions of importation, sale and
possession-with intent-to-sell, the enforcement of a proscription of possession
for personal use is minimally productive.
As noted, most law enforcement officials, district attorneys and judges recognize
the ineffectiveness of the possession penalty. as a deterrent. Its perpetuation
results in the making of what is commonly referred to as "cheap" cases
that have little or no impact on deterring sale.
The marihuana supply system can be viewed as pyramid with the major bulk of marihuana
entering the system at top of the pyramid and then descending to the base which
represents the user population. Common sense dictates where law enforcement should
devote its efforts. To remove the profit from the traffic requires arresting sellers,
not users. The oft-heard argument that the police need possession penalties to compel
users to reveal their sources is not convincing. "Turning informants"
at the base of the pyramid is of marginal value and limited utility in reaching
upwards toward the apex. Further, the National Survey showed that 60% of the users
don't "buy" marihuana but get it from a friend. The volume of traffic
in the drug at these levels is at best minimal.
In short, personal possession arrests and even casual sales, which account for more
than 95% of the marihuana arrests at the state local level, occur too low in the
chain of distribution to diminish supply very effectively.
In addition to the misallocation of enforcement resources, another consequence of
prohibition against possession for personal use is the social cost of criminalizing
large numbers of users. Our empirical study of enforcement of state and federal
marihuana laws indicates that almost all of those arrested are between the ages
of 18 and 25, most have jobs or are in school, and most have had no prior contact
-with the criminal justice system. The high social cost of stigmatizing such persons
as criminals is now generally acknowledged by the public at large as well as by
those in the criminal justice system.
According to the National Survey, 53% of the public was unwilling to give young
users a criminal record and 87% objected to putting them in jail. The nation's judges
expressed an overwhelming disinclination to sentence and convict users for marihuana
possession. Of these judges only 13% thought it was appropriate to incarcerate ail
adult for possession and only 4% would jail a juvenile for marihuana possession.
This disinclination is reflected in the low percentage of arrested users who are
convicted, and the even lower percentage who are jailed.
Even among the nation's prosecutors, a substantial majority favor the present trend
toward avoiding incarceration for first offenders. Most jurisdictions have devised
informal procedures for disposing of cases in lieu of prosecution. Our empirical
study shows that 48% of the adult cases, and 70% of the juvenile cases, were dropped
from the system at some point between arrest and conviction. The picture displayed
is one of a large expenditure of police manpower to enforce a law most participants
further along the line are not anxious to apply.
Other disturbing consequences of laws proscribing possession for personal use are
the techniques required to enforce them. Possession of marihuana is generally a
private behavior; in order to find it, the police many times must operate on the
edge of constitutional limitations. Arrests without probable cause, illegal searches
and selective enforcement occur often enough to arouse concern about the integrity
of the criminal process.
Yet another consequence of marihuana possession laws is the clogging of judicial
calendars. President Nixon has noted that one of the major impediments to our nation's
efforts to combat serious crimes is the fact that the judicial machinery moves so
slowly. Swift -arrests, prosecution, trial and sentence would significantly improve
the deterrent effect of law. Yet the judicial system is overloaded with petty cases,
with public drunkenness accounting for about 50% of all non-traffic offenses.
In his March 1971 address to the National Conference on the Judiciary, President
Nixon said:
What can be done to break the logjam of justice today, to ensure the right to a
speedy trial-and to enhance respect for law? We have to find ways to clear the courts
of the endless stream of "victimless crimes" that get in the way of serious
consideration of serious crimes. There are more important matters for highly skilled
judges and prosecutors than minor traffic offenses, loitering and drunkenness.
To this list we would add marihuana possession, which accounts for a rising percentage,
of judicial caseloads. In Chicago alone, during the last half of 1970, there were
more than 4,000 possession arrests.
A final cost of the possession laws is the disrespect which the laws and their enforcement
engender in the young. Our youth cannot understand why society chooses to criminalize
behavior with so little visible ill-effect or adverse social impact, particularly
when so many members of the law enforcement community also question the same laws.
These young people have jumped the fence and found no cliff. And the disrespect
for the possession laws fosters a disrespect for all law and the system in general.
On top of all this is the distinct impression among the youth that police may use
the marihuana laws to arrest people they don't like for other reasons, whether it
be their politics, their hair style or their ethnic background. Whether or not such
selectivity actually exists, it is perceived to exist.
For all these reasons, we believe that the possession offense is of little functional
benefit to the discouragement policy and carries heavy social costs, not the least
of which is disrespect and cynicism among some of the young. Accordingly, even under
our policy of discouraging marihuana use, the better method is persuasion rather
than prosecution. Additionally, with the sale and use of more hazardous drugs on
the increase, and crimes of violence escalating, we do not believe that the criminal
justice system can afford the time and the costs of implementing the marihuana possession
laws. Since these laws are not mandatory in terms of achieving the discouragement
policy, law enforcement should be allowed to do the job it is best able to do: handling
supply and distribution.
A criminal fine or similar penalty for possession has been suggested as a means
of alleviating some of the more glaring costs of a total prohibitory approach yet
still retaining the symbolic disapproval of the criminal law. However, most of the
objections raised above would still pertain: the possibilities of invasion of personal
privacy and selective enforcement of the law would continue; possessors would still
be stigmatized as criminals, incurring the economic and social consequences of involvement
with the criminal law; the symbolic status of marihuana smoking as an anti-establishment
act would be perpetuated.
On the other hand, a fine most likely would deter use no more than does the present
possibility of incarceration. It would continue to impede treatment for heavy and
very heavy use and would persist in directing law enforcement away from the policy's
essential aim which is to halt illegal traffic in the drug.
For all these reasons, we reject the total prohibition approach and its variations.
REGULATION
Another general technique for implementing the recommended social policy is regulation.
The distinguishing feature of this technique is that it institutionalizes the availability
of the drug. By establishing a legitimate channel of supply -and distribution, society
can theoretically control the quality and potency of the product. The major alternatives
within this approach lie in the variety of restraints which can be imposed on consumption
of the drug and on the informational requirements to which its distribution can
be subject.
We have given serious consideration to this set of alternatives; however, we are
unanimously of the opinion that such a scheme, no matter how tightly it might restrict
consumption, is presently unacceptable.
1. Adoption of a Regulatory Scheme at this Time Would Inevitably Signify Approval
of Use
In rejecting the total prohibition approach, we emphasized the symbolic aspects.
In essence, we do not believe prohibition of possession for personal use is necessary
to symbolize a social policy disapproving the use. Theoretically, a tightly controlled
regulatory schemes with limited distribution outlets, significant restraints on
consumption prohibition of advertising and compulsory labeling, could possibly symbolize
such disapproval. Our regulatory policy toward tobacco is beginning to slowly to
reflect a disapproval policy toward Cigarette smoking. Nonetheless, given the social
and historical context of such a major shift in legal policy toward marihuana, we
are certain that such a change would instead symbolize approval of use, or at least
a position of neutrality.
The Commission is concerned that even neutrality toward use as a matter of policy
could invest an otherwise transient phenomenon with the status of an accepted behavior.
If marihuana smoking were an already ingrained part of our culture, this objection
would be dispelled. However, we do not believe that this is the case,. We are inclined
to believe, instead, that the present interest in marihuana is transient and will
diminish in time of its own accord once the major symbolic aspects of use are deemphasized,
leaving among our population only a relatively small coterie of users. With this
possibility in mind, we are hesitant to adopt either a policy of neutrality or a
regulatory implementation of our discouragement policy. The law would inevitably
lose its discouragement character and would become even more ambiguous in its rationale
and its enforcement.
The effect of changing a social policy direction may be seen with tobacco policy.
In recent years, society has ostensibly adopted a policy of discouraging cigarette
smoking. This new policy has been implemented primarily in the information area
through prohibition of some forms of advertising and through compulsory labeling.
Yet, the volume, of cigarettes used increased last year. We believe that the failure
of the new policy results from the fact that it supplants one that formerly approved
use. This set of circumstances argues against any policy which would be regarded
as approval of use, including a regulatory scheme. It is always extremely difficult
to transform a previously acceptable behavior into a disapproved behavior.
2. Adoption of a Regulatory Scheme Might Generate a Significant Public Health
Problem
We noted above that institutionalizing availability of the drug would inevitably
increase the incidence of use, even though that incidence might otherwise decrease.
Of greater concern is the prospect that a larger incidence of use would result in
a larger incidence of long term heavy and very heavy use of potent preparations.
There are -now approximately 500,000 heavy users of less potent preparations in
this country, representing about 2% of those who ever tried the drug. Even if the
prevalence of -heavy use remained the same in relation to those who ever used, this
at-risk population would inevitably increase under a regulatory scheme. If the emotional
disturbances found in very heavy hashish users in other countries were to occur
in this country, the adverse social impact of marihuana use, now slight, would increase
substantially.
We have acknowledged that society, nonetheless, chose to run such a risk in 1933,
when Prohibition was repealed. But alcohol use was already well-established in this
society, and no alternative remained other than a regulatory approach. In light
of our suspicion that interest in marihuana is largely transient, it would be imprudent
to run that risk for marihuana today.
3. Adoption of a Regulatory Scheme Would Exacerbate Social Conflict and Frustrate
a Deemphasis Policy
A significant segment of the public on both sides of the issue views marihuana and
its "legalization" in a highly symbolic way. Any attempt to adopt a regulatory
approach now would be counterproductive in this respect. The collision of values
resulting from such a dramatic shift of policy would maintain the debate at a highly
emotional level and would perpetuate the tendency to perceive marihuana use as a
symbol of the struggle between two conflicting philosophies.
4. Not Enough Is Known About Regulatory Models In This Area
Advocates of legalization of marihuana are often inclined to propose a licensing
scheme or an "alcohol model" without offering a specific program of regulation
taking all the variables into account. Responsible policy planning cannot be so
cursory. Consequently, we have given serious study to the many issues presented
by such a scheme and to the nation's experience with other drug licensing schemes.
On the basis of our inquiry, we are convinced that such a step should not be taken
unless a realistic assessment of the efficacy of existing schemes and their potential
application to marihuana indicates it would be successful. Such an assessment raises
a number of disturbing questions.
The regulatory approaches which this nation has used in the cases of alcohol and
tobacco have failed to accomplish two of their most important objectives: the minimization
of excessive use and the limitation of accessibility to the young. Despite the warning
and restraints on distribution and consumption, more than 50 million Americans smoke
cigarettes regularly, and more than nine million Americans are "problem"
drinkers. We have previously cited data indicating how many of our children begin
habits which have been legally forbidden to them. Since the young user and the chronic
user of marihuana are of primary concern to our public health officials, the lack
of success with alcohol and tobacco discourages an assumption that the regulation
of supply would minimize use by the younger generation.
Another important purpose of a regulatory scheme is to channel the product through
a controlled system of supply and distribution. In that way the quality and quantity
of the substance can be regulated. The efficacy of such a scheme as applied to marihuana
is questionable.
Cannabis can be grown easily almost anywhere in the United States with little or
no human assistance. Even if a legitimate source of supply were established, it
is likely that many persons would choose to ignore the legitimate source and grow
their own, the purity of which would not be in question. If such a practice were
illegal, the necessity for a concerted governmental eradication program is raised,
which would involve a monumental law enforcement effort. According to the U.S. Department
of Agriculture, there are presently an estimated five million acres of wild marihuana
growing in this country and an undetermined number of acres under cultivation.
Yet, if such a practice were not forbidden, the revenue-raising, product-control
and consumption-restriction features of a regulatory scheme would be threatened.
Instructive to note is the fact that intensive regulation of alcoholic beverage
production 'has not eliminated illicit production. During 1970, in fact, 5,228 illegal
stills were destroyed by the Alcohol, Tobacco and Firearms Division of the U.S.
Treasury and 5,279 persons were arrested. In 1971, 3,327 illegal stills were destroyed
and 5,512 persons were arrested.
Another disturbing question is raised by the issue of potency regulation. Most advocates
of legalization stipulate potency limitations as one feature of their scheme. Presumably
they would limit the THC content of the regulated product. This is not an easy undertaking.
Especially when cannabis is so easily grown and a black market is so easily created,
we are dubious about the success of a regulatory scheme distributing only a product
with low THC content. Again, attention must be paid the prospect of increased hashish
use under a regulatory scheme; merely stipulating potency control is not sufficient.
As we noted in Chapter II, the heavy, long-term use of hashish is a source of major
concern to the Commission from both private and public health standpoints.
These are a few of the problems confronting the policy-maker if be seeks to devise
an effective regulatory system of distribution for what is, in fact, a universally
common plant. Our doubts about the efficacy of existing regulatory schemes, together
with an uncertainty about the permanence of social interest in marihuana and the
approval inevitably implied by adoption of such a scheme, all impel us to reject
the regulatory approach as an appropriate implementation of a discouragement policy
at the present time.
Future policy planners might well come to a different conclusion if further study
of existing schemes suggests a feasible model; if responsible use of the drug does
indeed take root in our society; if continuing scientific and medical research uncovers
no long-term ill effects; if potency control appears feasible and if the passage
of time and the adoption of a rational social policy sufficiently desymbolizes marihuana
so that availability is not equated in the public mind with approval.
PARTIAL PROHIBITION
The total prohibition scheme was rejected primarily because no sufficiently compelling
social reason, predicated on existing knowledge, justifies intrusion by the criminal
justice system into the private lives of individuals who use marihuana. The Commission
is of the unanimous opinion that marihuana use is not such a grave problem that
individuals who smoke marihuana, and possess it for that purpose, should be subject
to criminal procedures. On the other hand, we have also rejected the regulatory
or legalization scheme because it would institutionalize availability of a drug
which has uncertain long-term effects and which may be of transient social interest.
Instead we recommend a partial prohibition scheme which we feel has the following
benefits:
Symbolizing a continuing societal discouragement of use;
Facilitating the deemphasis of marihuana essential to answering dispassionately
so many of the unanswered questions;
Permitting a simultaneous medical, educational, religious, and parental effort to
concentrate on reducing irresponsible use and remedying its consequences;
Removing the criminal stigma and the threat of incarceration from a widespread behavior
(possession for personal use) which does not warrant such treatment;
Relieving the law enforcement community of the responsibility for enforcing a law
of questionable utility, and one which they cannot fully enforce, thereby allowing
concentration on drug trafficking and crimes against persons and property;
Relieving the judicial calendar of a large volume of marihuana possession cases
which delay the processing of more serious cases; and
Maximizing the flexibility of future public responses as new information comes to
light.
No major change is required in existing law to achieve all of these benefits. In
general, we recommend only a decriminalization of possession of marihuana for personal
use on both the state and federal levels. The major features of the recommended
scheme are that: production and distribution of the drug would remain criminal activities
as would possession with intent to distribute commercially; marihuana would be contraband
subject to confiscation in public places; and criminal sanctions would be withdrawn
from private use and possession incident to such use, but, at the state level, fines
would be imposed for use in public.*
Specifically, we recommend the following statutory schemes.
RECOMMENDATIONS FOR FEDERAL LAW
Under the Comprehensive Drug Abuse Prevention and Control Act of 1970, Congress
provided the following scheme with respect to marihuana, by which was meant only
the natural plant and its various parts, not the synthetic tetrahydrocannabinol
(THC) :
- Cultivation, importation and exportation, and sale or distribution for profit of
marihuana are all felonies punishable by imprisonment for up to five years for a
first offense and by up to 10 years for a second offense (the available penalty
is doubled for sale to a minor).
- Possession of marihuana with intent to distribute is a felony punishable by imprisonment
for up to five years for the first offense and by up to 10 years for a second offense.
- Possession of marihuana for personal use is a misdemeanor punishable by up to one
year in jail and a $1,000 fine for first offense and by up to two years in jail
and a $2,000 fine for second offense (expungement of criminal record is available
for first offenders).
- Transfer of a small amount of marihuana for no remuneration is a misdemeanor punishable
by up to one year in jail and a $1,000 fine for first offense and by up to two years
in jail and a $2,000 fine for second offense (Congress singled out marihuana in
this way to allow misdemeanor treatment of casual transfers and permitted first
offender treatment, as allowed for possession for personal use).
The Commission recommends only the following changes in federal law:
- POSSESSION OF MARIHUANA FOR PERSONAL USE WOULD NO LONGER BE AN OFFENSE, BUT MARIHUANA
POSSESSED IN PUBLIC WOULD REMAIN CONTRABAND SUBJECT TO SUMMARY SEIZURE AND FORFEITURE.
- CASUAL DISTRIBUTION OF SMALL AMOUNTS OF MARIHUANA FOR NO REMUNERATION, OR INSIGNIFICANT
REMUNERATION NOT INVOLVING PROFIT WOULD NO LONGER BE AN OFFENSE.
The Commission further recommends that federal law be supplemented to provide:
- A PLEA OF MARIHUANA INTOXICATION SHALL NOT BE A DEFENSE TO ANY CRIMINAL ACT COMMITTED
UNDER ITS INFLUENCE, NOR SHALL PROOF OF SUCH INTOXICATION CONSTITUTE A NEGATION
OF SPECIFIC INTENT.
* Commissioners Rogers, Congressman from Florida, and Carter, Congressman from Kentucky,
agree with the Commission's selection of a discouragement policy and also agree
that criminalization and incarceration of individuals for possessing marihuana for
their own use is neither necessary nor desirable as a means of implementing that
policy.
At the same time, both Commissioners feel that the contraband concept is not a sufficiently
strong expression of social disapprobation and would recommend in addition a civil
fine for possession of any amount of marihuana in private or in public.
Both Commissioners feel that the civil fine clearly symbolizes societal disapproval
and is a simple mechanism for law enforcement authorities to carry out. If a person
is found by a law enforcement officer to be in possession of marihuana, the officer
would issue such person a summons to appear in court on a fixed day. Although a
warrant would not issue for Research of a private residence unless there were probable
cause to believe a criminal offense was being committed, a police officer legitimately
present for other reasons could issue a civil summons for violation of the "possession"
proscription.
Commissioners Rogers and Carter believe that the legal system must be utilized directly
to discourage the person from using marihuana rather than being utilized only indirectly
as In the case of contraband.
This civil fine would not be reflected in a police record, nor would it be considered
a criminal act for purposes of future job consideration, either in the private sector
or for government service.
Agreeing with the other Commissioners that the casual transfers of marihuana for
no profit should be treated in the same manner as possession for one's own use,
Congressmen Rogers and Carter do not agree that it should extend to transfers involving
remuneration. They prefer the limiting language of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 which does not include the term "or insignificant
remuneration not involving a profit."
Apart from the addition of the civil fine to the contraband recommendation in the
respects set out above, Congressmen Carter and Rogers are in complete agreement
with the statutory recommendations set out in the Report.
Commissioner Ware concurs completely with the statements made by Congressmen Rogers
and Carter but wishes to reemphasize that the social policy and legal scheme adopted
is applicable only to marihuana and should not be construed to embrace other psychoactive
drugs. The policy set forth in this Report, subject to the already noted comments
of the two Congressional Commissioners, makes sense for marihuana on the basis of
what is known about the drug and in the absence of any conclusive showing which
would verify some of the anecdotal law enforcement testimony heard by the Commission
regarding criminal behavior exhibited while under the influence of marihuana.
Commissioner Ware feels that some penalty short of criminalizing the user, such
as a civil fine or some type of intensive drug education, will act as a positive
deterrent toward minimizing the incidence of marihuana use especially among the
young. Further, he is opposed to the use of any drug for the express purpose of
getting intoxicated, and includes alcohol within this category. The Commissioner
feels that what is needed is an internalizing of discipline among our citizenry,
with the legal system assisting this process through the use of disincentives.
Commissioners Hughes, Senator from Iowa, and Javits, Senator from New York, feel
that the Commission has taken a major, highly laudable step in recommending that
the private use of marihuana be taken out of the criminal justice system. They concur
in its threshold judgment that overall social policy regarding this drug should
seek to discourage use, while concentrating primarily on the prevention of irresponsible
use. They disagree, however, with three specific recommendations relating to the
implementation of this discouragement policy.
First, they would eliminate entirely the contraband provision from the partial prohibitory
model adopted by the Commission. They want it eliminated first because its legal
implications are confusing and the subject of disagreement even among lawyers. Whether
or not possession of a given substance is criminal, possession of material designated
as contraband makes that possession unlawful. Also, marihuana designated as contraband
would be subject to government search and seizure, even though the underlying possession
is no longer criminal. The provision-which does not apply to marihuana held for
personal use within the home is considered by both Commissioners to be an unnecessary
"symbol" of the discouragement policy. It will not foster elimination
of the misunderstanding and mistrust which is a hallmark of our current marihuana
policy.
Commissioner Hughes and Javits seek to eliminate it also because as a practical
matter it serves no useful law enforcement purpose within the overall partial prohibitory
model. If marihuana held for personal use within the home is not contraband, why
should marihauna held for personal use within one's automobile be contraband? The
area of operation of the contraband provision is extremely narrow. If one possesses
more than one ounce of marihuana in public, it may be seized without regard to the
contraband doctrine since such possession is a criminal violation.
Since the contraband provision does not apply to marihuana possession and use in
private, the only effective area covered by the contraband provision is the area
of possession in public of less than one ounce. The Commission has chosen to remove
the stigma of the criminal sanction in this kind of case. To impose instead a contraband
provision, which it is argued is in the nature of a civil "in rem" seizure
which does not operate against the person, is to cloud the issue and to weaken the
force of the basic decriminalization. A persuasive justification simply has not
been made.
Both Commissioners seek to eliminate it also because they believe that the voice
of the Commission should be loud and clear that the preservation of the right of
privacy is of paramount importance and cannot be casually jeopardized in the pursuit
of some vague public or law enforcement interest which has not been defined and
justified with clarity and precision.
The second area of disagreement with the Commission's recommendations concerns the
casual distribution of marihuana and the not-for-profit sale. As understood:
(1) The totally donative transfer is not subject to criminal penalty, regardless
of where it takes place.
(2) The transfer of small amounts for insignificant remuneration not involving a
profit is not subject to criminal penalty (except if it is accomplished in public,
in which case it is subject to criminal sanction), but (3) The transfer of "large
amounts" for "significant" remuneration not involving a profit is
subject to criminal penalty.
Footnote 4 on page 158 of the Report, the Commission refers to a Report of The Senate
Judiciary Committee on the Comprehensive Drug Abuse Prevention and Control Act of
1970. In substance, it implies that within the meaning of the Act, transfers of
-more than one or two marihuana cigarettes in return for 50 cents or one dollar
to cover cost are not intended to be covered as casual transfers, but rather are
to be treated as unlawful sales.
Commissioners Hughes and Javits feel that the Commission has failed to set forth
a clear standard which will adequately inform the public of their obligations under
the law. The recommendation and its discussion in the Report are confusing and fail
to provide the individual with sufficient guidance to allow him to act without having
to dodge in and out of illegality. It also undermines a basic, stated objective
of the Commission i.e., to concentrate the weight of the criminal sanction upon
significant supply and distribution activities, rather than upon casual consumption.
Moreover, proscribing even the most casual not-for-profit transfers when they occur
in public is, in their opinion, wrong. Such transfers are necessarily incident to
private possession and use. To hold that they should be subject to criminal sanction
is logically inconsistent with the Commission's rationale and recommendation on
decriminalization of such private activities.
Instead, both Commissioners recommend that all not-for-profit sales be excluded
from the criminal sanction. It Is fundamental that there be a clear separation between
the serious, commercial, profit-making-seller, or "pusher" as he is known,
and the individual who merely splits the cost of a reasonable supply of the drug
with his friends or acquaintances.
Thirdly, exception is taken to the retention of the criminal sanction on public
possession of more than one ounce. The individual who buys an ounce and a half would
be a criminal when he buys on the corner, when he puts it in his pocket, when he
gets in his car and drives home, when he is on his doorstep, but not when he crosses
the threshold of his home. Commission policy should direct the attention of the
law enforcement community to the person who sells the drug for profit, and not to
the person who uses the drug privately.
If an individual has more than a few ounces in his possession, and there is probable
cause to believe that he intends to sell it for profit, that activity is already
covered under the Commission's recommendation that possession with intent to sell
is illegal. Therefore, there is no need to further proscribe simple public possession.
All the component parts of the recommended policy of the Commission should be consistent
with its objective of non-interference with casual transfers and possession and
use which is essentially and fundamentally private and personal.
The contraband device, the not-for-profit sale, and public possession of some reasonable
amount which should be presumed to be necessarily incident to private use should
all be removed from the ambit of legal sanction. To do so would be to strike down
"symbols" of a public policy which had never been adequately justified
in the first instance. Such steps would in no way jeopardize the firm determination
of the Commission that the use of marihuana ought to be discouraged.
RECOMMENDATIONS FOR STATE LAW
Under existing state marihuana laws, cultivation distribution and possession with
intent to distribute are generally felonies and in most states possession for personal
use is a misdemeanor. The Commission strongly recommends uniformity of state laws
and, in this regard, endorses the basic premise of the Uniform Controlled Substances
Act drafted by the National Conference of Commissioners on Uniform State Laws. The
following are our recommendations for a uniform statutory scheme for marihuana,
by which we mean, as under existing federal law, only the natural cannabis plant
and its various parts, not the synthetic tetrahydrocannabinol (THC)
Existing Law
CULTIVATION, SALE OR DISTRIBUTION FOR PROFIT AND POSSESSION WITH INTENT TO SELL
WOULD REMAIN FELONIES (ALTHOUGH WE DO RECOMMEND UNIFORM PENALTIES).
Private Activities
POSSESSION IN PRIVATE OF MARIHUANA FOR PERSONAL USE WOULD NO LONGER BE AN OFFENSE.
DISTRIBUTION IN PRIVATE OF SMALL AMOUNTS OF MARIHUANA FOR NO REMUNERATION OR INSIGNIFICANT
REMUNERATION NOT INVOLVING A PROFIT WOULD NO LONGER BE AN OFFENSE.
Public Activities
POSSESSION IN PUBLIC OF ONE OUNCE OR UNDER OF MARIHUANA WOULD NOT BE AN OFFENSE,
BUT THE MARIHUANA WOULD BE CONTRABAND SUBJECT TO SUMMARY SEIZURE AND FORFEITURE.
POSSESSION IN PUBLIC OF MORE THAN ONE OUNCE OF MARIHUANA WOULD BE A CRIMINAL OFFENSE
PUNISHABLE BY A FINE OF $100.
DISTRIBUTION IN PUBLIC OF SMALL AMOUNTS OF MARIHUANA FOR NO REMUNERATION OR INSIGNIFICANT
REMUNERATION NOT INVOLVING A PROFIT WOULD BE A CRIMINAL OFFENSE PUNISHABLE BY A
FINE OF $100.
PUBLIC USE OF MARIHUANA WOULD BE A CRIMINAL OFFENSE PUNISHABLE BY A FINE OF $100.
DISORDERLY CONDUCT ASSOCIATED WITH PUBLIC USE OF OR INTOXICATION BY MARIHUANA WOULD
BE A MISDEMEANOR PUNISHABLE BY UP TO 60 DAYS IN JAIL, A FINE OF $100, OR BOTH.
OPERATING A VEHICLE OR DANGEROUS INSTRUMENT WHILE UNDER THE INFLUENCE OF MARIHUANA
WOULD BE A MISDEMEANOR PUNISHABLE BY UP TO ONE YEAR IN JAIL, A FINE OF UP TO $1,000,
OR BOTH, AND SUSPENSION OF A PERMIT TO OPERATE SUCH A VEHICLE OR INSTRUMENT FOR
UP TO 180 DAYS.
A PLEA OF MARIHUANA INTOXICATION SHALL NOT BE A DEFENSE TO ANY CRIMINAL ACT COMMITTED
UNDER ITS INFLUENCE NOR SHALL PROOF OF SUCH INTOXICATION CONSTITUTE A NEGATION OF
SPECIFIC INTENT.
A PERSON WOULD BE ABSOLUTELY LIABLE IN CIVIL COURT FOR ANY DAMAGE TO PERSON OR PROPERTY
WHICH HE CAUSED WHILE UNDER THE INFLUENCE OF THE DRUG.
DISCUSSION OF FEDERAL RECOMMENDATIONS
The recommended federal approach is really a restatement of existing federal policy.
From official testimony and record evaluation, we know that the federal law enforcement
authorities, principally the Federal Bureau of Narcotics and Dangerous Drugs and
the Bureau of Customs, do not concentrate their efforts on personal possession cases.
The avowed purpose of both Bureaus is to eliminate major traffickers and sources
of supply. For the most part, the federal agencies have left possession enforcement
to the states. Underlying this approach is a need -to maximize the use of enforcement
resources for major priorities and allow the states, in exercising their "police
powers," to assume the responsibility for local activities, including possession
for personal use.
By withdrawing the criminal sanction from possession for personal use we are, in
effect, codifying official policy. In addition, such a scheme follows the model
chosen for alcohol in the Volstead Act, and also revives the approach taken by Congress
in the Drug Abuse Control Amendments (DACA) of 1965. We are in agreement with the
original thrust of DACA, when Congress brought previously uncontrolled drugs, LSD,
barbiturates and amphetamines, under control but did not assess criminal penalties
for possession for personal use.
Instead, Congress placed on the prosecution the burden of proof that the possession
was for purposes of sale. Regardless of whether or not Congress was wise in imposing
a penalty in 1968 for possession for personal use, a subject we will consider in
our next Report, we think the original DACA concept is enlightened where marihuana
is concerned.
At the same time, present federal law classifies marihuana as contraband, and this
feature should be maintained. The contraband concept serves the discouragement policy
in two ways: it assists the removal of supply from the market and it symbolizes
a continuing societal opposition to use. Accordingly, if a person is found in possession
of marihuana in public and the government is unable to prove any intent to sell,
it may nevertheless seize the marihuana and confiscate it is contraband.
The contraband provision would apply only to possession in public and would not
extend to possession for personal use in the home. During Prohibition, the Federal
Government and most of the states employed a similar statutory limitation. For example,
the Volstead Act provided that a private dwelling could not be searched "unless
it is being used for the unlawful sale of intoxicating liquor. . . ." I The
impact of this contraband concept is that marihuana possessed or found in public
can be summarily seized by law enforcement officials and forfeited to the state
for subsequent destruction .2 The criminal justice system is not involved in the
process. The individual receives no record of any kind; he simply loses the economic
value of the marihuana.3
With regard to the casual distribution of small amounts of Marihuana for no remuneration
or insignificant remuneration not involving a profit we are following the approach
taken in the Comprehensive Drug Abuse Prevention and Control Act of 1970 which in
essence treats such casual transfers as the functional equivalent of possession.
In doing so, Congress recognized that marihuana is generally shared among friends
and that not all people who distribute marihuana are "Pushers."*
'§ 39. Unlawful P0ssession of liquor or property designed for manufacture thereof
; search warrants. It shall be unlawful to have or possess any liquor or property
designed for the manufacture of liquor intended for use in violating this chapter
or which has been so used, and no property rights shall exist in any such liquor
or property. A search warrant may issue as provided in [sections 611 to 631 and
633 of Title 181 and such liquor, the containers thereof, and such property so seized
shall be subject to such disposition as the court may make thereof. if it is found
that such liquor or property was so unlawfully held or possessed, or had been so
unlawfully used, the liquor, and all property designed for the unlawful manufacture
of liquor, shall be destroyed, unless the court shall otherwise order. No search
warrant shall issue to search any private dwelling occupied as such unless it is
being used for unlawful sale of intoxicating liquor, or unless it is in part used
for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding
'house. The term "private dwelling" shall be construed to include the
room or rooms used and occupied not transiently but solely as a residence in an
apartment house, hotel or boarding house. The property seized on any such warrant
shall not lie taken from the officer seizing the same on any writ of replevin or
other like process. (Oct. 28, 1919, e. 85, Title 11, § 25, 41 Stat. 315)
'The federal and state provisions presently in force regarding the seizure and forfeiture
of an automobile transporting marihuana would no longer be applicable. They would
still remain in force for other controlled drugs classified as contraband.
3 See the views of Commissioners Rogers, Carter, Ware, Hughes and Javits expressed
in the footnote on pages 151-156.
The accuracy of Congress' appraisal is underscored by the National Survey. When
people who had used marihuana were asked how they first obtained the drug, 61% of
the adults and 76% of the youth responded that it had been given to them. Only 4%
of the adults and 8% of the youth said that they had bought it. When asked who their
source had been, 67% of the adults and 85% of the youth responded that it had been
a friend, acquaintance or family member.
The close association between the concepts of casual transfer and personal possession
is also underscored by the fact that 56% of the prosecutors in our survey thought
that the present law did not deter casual transfer at all or deterred it only minimally.
With regard to importation and exportation, we recommend no change in existing law
and make the following observations. First, the United States must maintain its
international standing and, as a member of the community of nations, this country
should do everything in its power to restrict the exportation of marihuana to other
countries and to penalize such international traffic.
As to importation of marihuana, the most effective way to discourage use is to cut
off supply at the top of the pyramid. Recognizing that most of the marihuana consumed
in the United States comes from abroad, we feel that the Bureau of Customs at the
borders should have all necessary authority to halt and interdict supplies intended
for consumption in this country. There has been a long-standing practice of excepting
ports and borders from procedural rules applying within the United States. One example
is that Customs officials are allowed to search without the showing of probable
cause, even though such a showing is mandatory for searches conducted within the
United States. We can see a legitimate reason for continuing this policy.
*In considering this relationship, the Senate, in the Report of the Committee on
the Judiciary of the United States Senate regarding S. 3246 (a precursor bill to
the new Federal law) stated:
The language "distributes a small amount of marihuana for no remuneration or
insignificant remuneration not involving a profit" as contained in section
501 (c) (4) is intended to cover the type of situation where a college student makes
a quasi-donative transfer of one or two marihuana cigarettes and receives 50 cents
or a dollar in exchange to cover the cost of the marihuana.
Transfers of larger quantities in exchange for larger amounts of money, or transfers
for profit, are not intended to be covered by this section, but rather are to be
covered by section 501 (c) (2) which deals 'with unlawful distribution. This language
sketches a prototype situation which the Committee had in mind; however, the wording
of the Federal Act and of our recommendations is not intended to establish inflexible
rules. The objective in both provisions is to distinguish between commercial sellers
and casual distributors. Ultimately the courts will have the responsibility of drawing
this distinction according to the evidence in individual cases. The recommended
provision intentionally establishes a loose standard not tied to specific amounts
of marihuana or money.
See also the views of Commissioners Rogers, Carter, Ware, Hughes and Javits expressed
in the footnote on pages 151-156.
DISCUSSION OF STATE RECOMMENDATIONS
The states have primary responsibility for enforcing the existing proscriptions
against possession for personal use. Their present efforts are designed mainly to
keep marihuana use contained, and in private. Such an enforcement policy is consistent
with our social policy approach, and is an appropriate exercise of the states' obligations
to maintain public order. So while we see no need for criminal sanctions against
possession for personal use or against casual transfers, we recommend a number of
provisions for confining marihuana use to the home.
The first point is that even marihuana possessed for personal use is subject to
summary seizure and forfeiture if it is found in public. This concept is now applicable
under federal law which we commend also to the states. In our view, the contraband
feature symbolizes the discouragement policy and will exert a, major force in keeping
use private.
Another means of symbolizing the discouragement policy which has been suggested
is the imposition of a civil fine on those possessing marihuana outside the home
for personal use.* Under such an approach, a fine would be levied and processed
outside the criminal justice system. Essentially, possession of marihuana would
be the equivalent of a traffic offense in those jurisdictions where such an offense
is not criminal.
Such a scheme would accomplish little more than that achieved under a partial prohibition
scheme. Warrants would presumably not be issued for searches of private residences,
and possession offenses would be detected only by accident or if the offender uses
the drug in public. The more direct way to confront such behavior is a penalty against
public use.
A further problem with the civil fine approach lies in the area, of non-payment
of the fine. With traffic tickets, or with civil fines levied against industrial
polluters, society can compel compliance by withdrawing its permission to eng