XII. CONCLUSION: BEFORE THE FALL
Many pages ago we promised that the legal history of marijuana prohibition was in itself an interesting story; we hope we have kept that promise. We also suggested that marijuana prohibition would be an appropriate vehicle for study of two broader phenomena-the public policy formation process and the evolution of American cultural values in the twentieth century. Having indulged, insofar as law review style would permit, in the sheer joy of telling a good story, we now turn to the more pretentious purposes of our Article.
A. Public Policy Formation Process
The legal history of marijuana prohibition may reasonably be di-
vided into four phases. The first phase, roughly from 1915 to 1930,
witnessed sporadic localized legislation in a substantial number of states criminalizing sale and/or possession of marijuana. This phase followed hard on the heels of nationwide anti-narcotics legislation and coincided almost perfectly with the ascendency of alcohol prohibition. During the second phase, from 1932 to 1937, the drug was suppressed nationally, by every state and by the federal government. The third phase, the decade of the 1950's, was characterized primarily by escalation of the

,00 See JOINT LEGISLATIVE CoasMlrraa FOR THE REVISION OF THE PENAL CODE, Ci.1FoRN1A
LEGISLATURE, DRuGs-PART I MARIHUANA (Proposed Tent. Draft & Commentary 1968).
Our data indicate that over 20% of the users of marihuana have sold the drug on occasion in small quantity to friends who tacitly agree they will return the favor if the drug becomes available to them in the future. Id. at 153.
61 Pub. L. No. 91-513 (Oct. 27, 1970).

penalties: The. final' phase, beginning around 1965 and still continuing, is characterized by vigorous public debate and deescalation of the penalties, and may eventually result in legalization;
During the first phase, the initial emergence of the anti-marijuana public policy, the public opinion process was inoperative. Since the group of people directly affected was small and inaccessible, the matter attained the lowest possible visibility in the decision-making process.' Yet the early marijuana legislation probably comported with latent public opinion, or perhaps even general community consensus, in several respects
In the first place, the lawmakers assumed that the drug was addictive and that its consumption precipitated crime, pauperism and insanity. Accordingly, public interest in, and desire for, its suppression might well have been considered settled by the earlier anti-narcotics legislation. At the same time, however, there does not appear to have been any interest in substantiating these assumptions. Although primary source materials on the question are scarce and difficult to locate, we have found no indication that the legislators consulted scientific data; instead they relied on sensationalistic police and newspaper identification of marijuana with crime. Naturally these assumptions went unchallenged; the only segment of the public likely to challenge them was small and outside the public opinion process.
From another perspective, however, the true pharmacological effects of the drug may have been immaterial to a decision to suppress it. Since marijuana was an intoxicant consumed only by immigrant Mexicans in the South and West and by ghetto Blacks in the East, the legislators might have accurately reflected a public hostility to the drug wholly without regard to its pharmacological effects. It should be noted in this respect that this first phase of marijuana prohibition occurred simultaneously with the successful thrust of alcohol prohibition. During this period, the legislators might well have assumed that public policy condemned the use of intoxicants in any form.
Moreover, to the extent that alcohol prohibition was motivated, or at least quickened, by ethnic prejudice against the Irish, marijuana prohibition, once proposed, was an inevitable by-product of anti-Mexican
'Either a large number of affected persons or high public visibility, and usually
both, is a necessary condition for public interest. And, of course, public interest is a necessary condition for the operation of the public opinion process by which the interested segment of the public communicates its opinions or attitudes directly or indirectly to the decision-maker.
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feeling. In fact, the ethnic factor might well have been the primary force. Since marijuana was so strongly tied to the newly immigrant Mexican minority, and to a lesser degree to urban Blacks, the meltingpot syndrome, so prevalent at this stage of American history, predisposed the issue without regard to the drug's effects. Designed to foster cultural homogeneity, and in particular the Protestant Ethic, marijuana legislation may well have reflected an automatic public antipathy to any deviant tendency of newly immigrant, sometimes despised, minorities.
At the time of its passage, therefore, early marijuana legislation may have fir well in a society assigning moral condemnation to use of narcotics, apparently opposing any consumption of intoxicants, and striving either to suppress or to assimilate deviant minorities. With the repeal of Prohibition, however, the bubble of the anti-intoxicant rationale burst. Too many people who acquiesced in alcohol prohibition to eliminate the abuses of excessive consumption were unwilling to comply with a public policy prohibiting any use at all. Perpetuation or extension of marijuana prohibition in light of this new alignment of public attitudes now depended either on the drug's allegedly insidious effects or on the melting-pot syndrome. Yet, there was still no visible public interest in marijuana, and the courts were moved neither to scrutinize the legislatures' factual suppositions nor to question their motives.
And so it was that by 1931, twenty-two states had enacted prohibitionary marijuana legislation. It was during the ensuing decade-what we have labelled the second phase of this history-that this primarily regional phenomenon twice achieved national proportions. That is not to say, however, that the question even once received national attention; in fact, anti-marijuana public policy was established on a national scale even more effortlessly than it had been on the local scale.
The first of these two events was the inclusion of marijuana in the Uniform Narcotic Drug Act, submitted for state adoption by the National Commissioners on Uniform State Laws in 1932. The war against the evils of narcotics had by now become old hat and was waged in this forum by a few doctors interested in establishing uniform obligations and by the newly created Federal Bureau of Narcotics. A low-keyed, uncomplicated drafting process transpired in committee, the basic provisions having been appropriated from the 1927 New York narcotics statute. The final committee draft, including an optional marijuana provision, was rubber-stamped by the Commissioners and subsequently
passed as a uniform afterthought by thirty-five states in the succeeding five years.
The same factual suppositions and ethnic aspersions characterizing the earlier state laws now colored the limited references to marijuana accompanying passage of the Uniform Act. There were two significant differences, however. First, legislative unawareness of marijuana as a separate substance was exacerbated by its inclusion as just another "narcotic" in everyone's new anti-narcotics law. Second, although the Federal Bureau of Narcotics played a superfluous role in the passage of the Uniform Act, it initiated an educational campaign against narcotic drugs, and included marijuana.
Once the Uniform Act had been successfully inscribed on the statute books, the Bureau turned its propaganda arsenal on marijuana alone. Although largely unsuccessful in arousing public interest in the marijuana "problem," the Bureau created in the Congress a "felt need" for federal legislation.2 Again the public opinion process remained dormant while Congress passed still another law, the Marihuana Tax Act-this. time to fill a nonexistent enforcement void against the abuse of a drug known only to a small, isolated segment of the population. Once again the republic's duly authorized decision-makers nonchalantly criminalized possession of a drug without a factual inquiry even though this shortcoming was brought to their attention. The Act was hastily drawn, heard, "debated" and passed.
Thus, by 1937, marijuana had joined heroin, cocaine, morphine and
opium in state and federal codes as a prohibited substance. As in 1914,
new "stateways" were created and "folkways" gradually followed; users of the "killer weed" joined the despicable "dope fiend" as purveyors of evil in the public mind as well as in the public law.
The 1950's witnessed an explosion of the psychology of fear-repression of political and cultural deviation was the order of the day. It is not surprising, then, that the criminal law orientation toward drug
2 Differences in intensity of commitment can explain how stateways can create new folkways. For example, the many may have no view at all and be influenced by intense leaders. Such was the case with Congress, and in turn the public in 1937, when the intensely committed Bureau of Narcotics singlehandedly created the Marihuana Tax Act. One scholar of the public opinion process has stated that even where many people have convictions opposed to the law,
the law may be carried through by a comparatively small body of very earnest
men, who produce a disproportionate effect by the heat of their conviction; while the bulk of the people are apathetic and unwilling to support the effort required to overcome a steady passive resistance to the enforcement of the law. A. Lowau., PuBuc OPINION .m POPULAR Gov zsENr 15 (1926).
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use, -initiated'with regard to narcotics at the turn of the- century and to marijuana -two decades later, reached full cresendo at the same time
For the first time in our national history, there was public interest in
narcotic drugs. There apparently was an increase in drug abuse in the
late forties, and the public mind was ripe for the onslaught of propa-
ganda disseminated by the Bureau of Narcotics. In the paranoid at-
mosphere of the period, the Bureau's call for harsher penalties was -a
soothing one. Congress responded with the Boggs Act and many states
followed suit.        - -
- At the same time, however, the primary rationale for the illegal status of marijuana-the assumption that it was an addictive, debilitating drug -was disproved. In its stead, a new factual premise appeared-that the use of marijuana was a stepping stone to the use of heroin and other "hard" drugs-. rationale that the Bureau had expressly rejected in 1937. Despite medical testimony unequivocally differentiating marijuana from hard narcotics, the legislatures were in no mood to quibble; marijuana's
pernicious effects,-although once removed, equally warranted escalated
penalties. The peak was reached with the passage of the Narcotic Control Act of 1956. This time public interest had disappeared, earlier doubts about the nature of marijuana had subsided, and Congress mindlessly escalated the penalties indiscriminately for narcotics and marijuana laws. Several states followed suit, and the courts, both state and federal, unquestioningly administered these harsh laws and sanctioned the dubious techniques by which they were enforced.
Thus, by 1956, possession of marijuana was a felony practically everywhere, and judges were generally precluded from mitigating the long prison terms prescribed by statute. Such legislation had never been supported by authoritative scientific inquiry regarding the pharmacological effects of the drug.
Then it was 1965. As more and more middle-class campus youths experimented with the drug with no apparent ill effects, so did their friends.. . and theirs... and so on. By 1970 between ten and fifteen percent of the American middle class had violated the marijuana laws, sometimes overtly.3 For the first time since the anti-marijuana policy initially appeared, a substantial segment of the public was directly affected. Public interest naturally increased even beyond those immediately affected as the marijuana issue achieved higher visibility. The public opinion process had finally lurched into motion.
3 See pp. 1096-1100 supra.
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use, -initiated'with regard to narcotics at the turn of the- century and to marijuana -two decades later, reached full cresendo at the same time
For the first time in our national history, there was public interest in
narcotic drugs. There apparently was an increase in drug abuse in the
late forties, and the public mind was ripe for the onslaught of propa-
ganda disseminated by the Bureau of Narcotics. In the paranoid at-
mosphere of the period, the Bureau's call for harsher penalties was -a
soothing one. Congress responded with the Boggs Act and many states
followed suit.        - -
- At the same time, however, the primary rationale for the illegal status of marijuana-the assumption that it was an addictive, debilitating drug -was disproved. In its stead, a new factual premise appeared-that the use of marijuana was a stepping stone to the use of heroin and other "hard" drugs-. rationale that the Bureau had expressly rejected in 1937. Despite medical testimony unequivocally differentiating marijuana from hard narcotics, the legislatures were in no mood to quibble; marijuana's
pernicious effects,-although once removed, equally warranted escalated
penalties. The peak was reached with the passage of the Narcotic Control Act of 1956. This time public interest had disappeared, earlier doubts about the nature of marijuana had subsided, and Congress mindlessly escalated the penalties indiscriminately for narcotics and marijuana laws. Several states followed suit, and the courts, both state and federal, unquestioningly administered these harsh laws and sanctioned the dubious techniques by which they were enforced.
Thus, by 1956, possession of marijuana was a felony practically everywhere, and judges were generally precluded from mitigating the long prison terms prescribed by statute. Such legislation had never been supported by authoritative scientific inquiry regarding the pharmacological effects of the drug.
Then it was 1965. As more and more middle-class campus youths experimented with the drug with no apparent ill effects, so did their friends.. . and theirs... and so on. By 1970 between ten and fifteen percent of the American middle class had violated the marijuana laws, sometimes overtly.3 For the first time since the anti-marijuana policy initially appeared, a substantial segment of the public was directly affected. Public interest naturally increased even beyond those immediately affected as the marijuana issue achieved higher visibility. The public opinion process had finally lurched into motion.
3 See pp. 1096-1100 supra.
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In calmer times, the authors believe that legislators would not be resisting reconsideration of the marijuana issue to the degree that they have thus far. A significant crosscurrent of public opinion, colored by preference for individuality and privacy, has swept aside many of the public policies which took root in the same soil as twentieth century drug policy. Today while we have expanded government's role in the economy of the nation, we have seen a consistent retreat from the glib paternalism that underlay laws restricting sexual practices among husband and wife, harsh definitions of pornography and the development of specialized courts for juveniles in which the state would, without benefit of established legal procedures, guard and protect the best interest of the child. To a large degree, the federal courts have been the vehicle by which this crosscurrent has affected public policy. Yet, in deference to the political process, the courts have thus far refused to intervene on the marijuana issue.
As the number of deviants continues to increase, fundamental alteration of drug policy, particularly with regard to marijuana, is inevitable. Because of the volatility of the issue and the current overextension of the courts, we believe that such alteration should be achieved in the legislatures. Yet despite an overwhelming volume of scientific criticism of existing law, legislatures have taken only token action. The source of the law is now its defense-ignorance. Even though independent researchers have disproved all of the old assumptions, the status quo is maintained on the ground that the evidence is not yet in on long-range effects of repeated use. A poor basis for a criminal law in any case, this argument is defectively open-ended. Because concerted scientific research is occurring only for the first time, waiting for these conclusions could preserve the status quo for a decade or more, even though no positive evidence supports prohibition.
If the legislative process continues to stall, however, we predict that the judiciary will no longer restrain itself. As some comments and peripheral rulings from the bench have already demonstrated, the courts too have been affected by the changing use patterns, media commentary, and commission and academic recommendations. Although we would prefer that the courts not be forced to enter still another political thicket, we do believe, as illustrated above, that a declaration of unconstitutionality is analytically justifiable.
To summarize, during the two criminalization stages, 1915 to 1937,
the public opinion process was not invoked because of the number and
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identity of marijuana users. Accordingly, the political decision-makers made incorrect factual assumptions which went unquestioned by the judiciary and the general public. Nevertheless, criminalization probably comported with general community values if those assumptions were made, and even perhaps if they were not.
Apart from its general consistency with community instincts for paternalism and preference for cultural homogeneity, the new law had a significant independent effect. As had been the case with the earlier anti-narcotics laws, the very existence of a criminal law generated a positive morality where none had existed before. In Sumner's terms, the new stateway did create a new folkway with respect to marijuana. This could occur with regard to marijuana and not to alcohol precisely because of the wholly different number and character of the users. We conclude that where a deviant group is outside the public opinion process and the dominant group is unfamiliar with their deviant conduct, stateways, in the form of prohibition of such conduct, can create folkways because of the presumption of immorality attaching to violation of the criminal law.
So long as the class of users remained constant, the public opinion process remained inoperative, the factual assumptions remained unquestioned (or new ones were advanced to support the law), and the moral judgment fed upon itself. Thus, the 1950's witnessed an incredible escalation of penalties and withdrawal of judicial discretion unmatched at any other time in American jurisprudence.
In the late 1960's, however, the number and social identity of the deviants changed radically. The public opinion process became operative on the marijuana issue for the first time in its history, generating massive scientific inquiry into the drug's effects. As a product of this process, it is at least clear that there is no longer a community consensus in favor of marijuana prohibition. First, the continuing consensus regarding narcotics use has been demonstrated conclusively to be factually inapposite to marijuana. Second, there is a strong crosscurrent of cultural values preferring privacy, individuality and cultural pluralism inconsistent with the value preferences underlying the marijuana laws. Although we will explore the effect of this phenomenon below, it is important to note now the growing legal recognition of these values in related substantive areas like sexual practices and in the rules of criminal procedure.
It is too soon to stare with any assurance that the crosscurrent will
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become the consensus. The law itself still exerts a continuing influence; many a middle-class parent intones haplessly that marijuana use is against the law and must therefore be bad; indeed, so does the Attorney General of the United States.4 The current polarization of society has tended to defer final resolution of this value clash and therefore of the marijuana problem.
Nevertheless, we do not believe that the broader social polemics should obscure rational consideration of the marijuana problem. This Article was designed to provide the historical perspective which we believe so material to this consideration; hopefully, an understanding of the origins of the law will set aside some irrelevant issues and permit incisive consideration of the core issues, one of which is the nature of the contemporary value crosscurrent, to which we now turn.
B. Twentieth Century Values and the Marijuana Laws
As we suggested at the outset and again in the preceding discussion of the policy formation process, the history of marijuana regulation presents an ideal case study of the evolution of American cultural values in the twentieth century. Basically it describes an alteration in the individual's sphere of independence in .the society.
In a time when the individual's economic and political independence had not yet been suffocated by the weight of massive impersonal institutions, society insisted on conformity to the dominant personal moral code. Because of the blessings of a free economy, economic eccentricity was encouraged in the ideological trappings of the self-made man. Similarly, the political reforms of this period-the initiative, referendum and recall-manifested faith in individual political judgments of every man.
At the same time, however, each individual's fulfillment of his political and economic promise demanded his adherence to the tenets of the Protestant Ethic-hard work and productivity. To insure a continuing march toward political and economic progress, society tightened the reins on personal behavior. Every new immigrant class had to be integrated into the system, to learn the American way. There was no room for "misfits." Society had the duty to keep the individual from
4 "One thing young people should really recognize is the fact that marijuana is illegal, even possession is illegal, and they should realize that their future in society can be damaged severely." Attorney General John N. Mitchell, quoted in NEWSWEEK, Sept. 7, 1970, at 22.
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falling by the wayside. Thus, the juvenile court movement began in 1899 to reach out early and reform the errant youth; society was his true parent. Similarly, the temperance and anti-narcotics movements, and the later anti-marijuana "movement," were designed to protect the individual, particularly the new immigrant classes, from inhibiting their own capacity to reap the benefits of the American economic and political system.
Naturally, -restraints on individuality were not always rationalized in this way. There was a certain self-righteousness about the moral superiority of the American way. Thus, the insistence on assimilation of immigrant ethnic groups was designed not only to stimulate their own success but also to protect the superior, divinely inspired, American way from contamination. For example, as we noted above, many Americans who, supported alcohol prohibition were opposed not so much to the drinking of alcohol but rather to the licensed saloon and the political power of the Italian and Irish minorities who used the saloons as the center of their social orders in the new country. In the same way strong ethnic bias against the Chinese on the West Coast was the prime motivation for those states' early anti-opium laws. Likewise in the Southwest the primary impetus for the criminalization of marijuana use was prejudice against the growing Mexican communities in those states. Laws were passed against the Mexicans and "their weed."
The point cannot be understated that much of the "reform" legislation at the turn of the century, including the sumptuary laws, was designed to protect and extend the dominant way of life-that of Protestant, rural, white, Scotch-Irish and English America. That way of life was making the country great, and the succeeding waves of immigrants had to be assimilated as quickly as possible, for they posed a threat to the dominant order. Much of the prohibitionary movement was designed to meet that threat-to root out cultural differences and impose the dominant values. Open prejudice and public ethnic slurs commOnly accompanied passage of the drug and liquor laws and other paternal legislation. Similarly, in 1912, Theodore Roosevelt could run for President with "Onward Christian Soldiers" as his campaign song
Utilizing a police power defined broadly in terms of self-protection, the dominant segment of society sought to protect itself from contamination and to promote homogeneity. Legislatures and reviewing courts focused ouly on society's interests, not on the "right" of the individual to deviate from the majority's cultural norms; the courts were
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essentially closed to assertions of minority rights. Similarly, the criminal process was administered not from the perspective of protecting the "rights" of the criminal defendant but rather of protecting the society against deviance. Thus, during the period of Prohibition, enforcement, fourth and fifth amendment rights were- consistently ignored.
This, then, was the cultural milieu in which early twentieth century drug legislation took root and the continuing effect of which also fostered the later suppression of marijuana. The society imposed severe restraints on individual personal and social conduct in order both to reap the societal benefits from the individual's supposed economic and political independence and to perpetuate the dominant cultural outlook.
In contemporary society, however, the perspective is quite the reverse. Economic and political institutions have become increasingly omnipotent; the individual is increasingly dependent on the system rather than the system dependent on him. More and more the individual views himself as a cog in the massive, impersonal, technological machine, the gears for which are beyond his grasp. Consequently, a higher value has been placed on personal fulfillment in the noneconomic, nonpolitical sphere; a new emphasis has been placed on personal identity, and the individualized, deinstitutionalized pursuit of happiness. Concurrently, s economic productivity demands less of each individual's time and energy, and the work-week continues to shorten, a leisure value has emerged. The society has less and less economic interest in what the individual does with his leisure time.
Particularly in the last decade, this new value preference has been recognized in laws and judicial decisions recognizing the individual's right to differ-intellectually, spiritually, socially and sensually. A new, sometimes extreme, emphasis is placed on individual privacy; as an incredibly sophisticated technology continually expands society's control over the individual, he is insisting that the wall around his private life be fortified. Similarly, the search for identity has extended to groups of individuals; in stark contrast to the fervent implementation of the melting-pot syndrome fifty years ago is the increasing group awareness in an admittedly pluralistic society. The proliferation of Black and "Chicano" awareness groups and the resurgence of the American Indian testify to the renaissance of group identity and the bankruptcy of the assimilation ideology.
We believe that marijuana prohibition is as inconsistent with this new cultural climate as it was predictable under the old. As illustrated in
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related areas, the focus has shifted decidedly from society's interest in protecting itself from deviance to the individual's right to deviate. Laws proscribing deviant forms of private sexual conduct-nudism, homosexuality-are being repealed or invalidated. Laws interfering with familial decision-making-abortion, contraception, miscegenation-are meeting the same fate. Laws rigidly defining the woman's place in the society and restricting her individual pursuit of happiness are under attack. Society's highly paternalistic treatment of adolescents-reflected in the pre-1967 juvenile court system and in the hands-off policy regarding school administration-is being reversed.. Society's highly moralistic treatment of narcotics addiction, generated by the Harrison Act in 1914, is being replaced by a more humane medical outlook. Finally, official and unofficial suppression of ethnic and racial differences-and the related prejudice-has been replaced by official encouragement of such differences and suppression of discrimination, both public and private.
In sum, then, we believe that values which fostered and sustained the criminalization of marijuana have changed radically in the last decade. In fact, the widespread violation of the marijuana laws is itself proof of that proposition; the users and many nonusers see no possible societal objection to an individual's use of an apparently harmless euphoriant. In the words of Leroy Mitchell, whose combat with the law provides an interesting comment on the modem dangers of the "killer weed,"
5 People v. Mitchell, 244 Cal. App. 2d 176, 52 Cal. Rptr. 884 (Dist. Ct. App. 1966). Advised by Leroy's distraught wife that he smoked marijuana every evening, the police, with her consent, entered the house and arrested Leroy. He was very cooperative with the officers, showing them his hidden supply and his growing plants. Forgiving his wife, Leroy readily admitted using and growing marijuana. At trial, his sole defense was that marijuana was an integral part of his daily life, forming the crux of his religious practice.
"In the sense that I believe that religion is related to law or constitutionality, I was exercising freedom in my own home to smoke something actually better than tobacco." His religious ritual was, "Get up in the morning and have breakfast, lunch at 12:30 evening meal, say between 6:00 and 7:00 and a pipe of marijuana about 8:00 or 9:00."
Id. at 180-81, 52 Cal. Rptr. at 885.
To Leroy's free exercise claim, the court responded that he had "offered no evi-
dence that his use of marijuana is a religious practice in any sense of that term." Id.
at 182, 52 Cal. Rptr. at 886. The first amendment protects only institutionalized religion. Poor Leroy. "In defendant's discourse to the jury," the court continued, "he did refer to the Bible and to the practices of some Hindus, but in essence be was expressing only his own personal philosophy and way of life." Id. (emphasis added).
In Leroy's defense, we might then ask, why not? Is there no constitutional precept that the state cannot make his "way of life" a crime, much less a felony unless his private
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I have heath the problems of marijuana discussed many times and it has come to my attention that actually the only problem that we are having with marijuana is that young people are being faced with the attitude of criminality..
• As we noted above, there is not yet a community consensus on this new value crosscurrent, and there probably will be none until the society becomes depolarized. At the same time, we do predict that the marijuana laws will not long exist in the current climate of changing values and increased use among a sizeable segment of the "respectable" public. We should emphasize this latter point. As lawyers by profession, we may tend to focus on and occasionally overestimate the force of the evolution of statutory and case law in changing the legal and social order. For that reason, we note withàut hesitation that the most potent force for change in the drug laws is the incredible increase in drug use, especially among the middle-class young. No society can long afford to define so large a segment of its population as criminal. It is highly unlikely that this one will continue to do so. This current increase in marijuana use stands in stark contrast to the public attitudes and opinions about drug use which were prevalent as late as 1956. And it is this phenomenon which in turn will hasten a wider community recognition of the emerging values.
Perhaps the single best illustration of the mutual influence of these two factors on public attitudes toward drug use in the last ten years is a recent broadcast commentary on the apprehension of Robert Kennedy, Jr. and R. Sargent Shriver, III, for possession of marijuana. After showing 'pictures of the boys and their prominent families emerging from a Massachusetts juvenile court, the commentator noted 7 that this case was unusual only in that famous families were involved. He continued tht. today it is commonplace indeed for parents to accompany their children to court on drug charges. Today a drug charge is "com-
pursuit of happiness bears some reasonable relationship in fact to some public evil. Sure, Leroy might have been bugging his wife. But she had recourse to civil remedies. Is the chance' that Leroy's social and personal use of marijuana would hurt him or anyone else great enough to warrant a felony conviction? We think not; at least we think the courts should ask.
G Id. t180, 52 Cal. Rptr. at 888.
7 "This case is not unusual; more and more parents across the nation find themselves going to-,court with their children on drug charges. It's becoming an incident of modern llving.' Walter Cronkite, CBS Evening News, Angust 8, 1970.
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monpiace;" in 1958, it was unthinkably criminal. A later commentator wondered whether we could afford "a whole generation of criminals!"
As must be clear by now, we do not think, this society will drought to perpetuate this disastrous situation. Either by nonenforcement, repeal or judicial invalidation, the law will be changed. Throughout the earlier discussion of possible constitutional objections to the marijuana laws we expressed our policy preference for judicial restraint in this area; although existing constitutional doctrines would support a judicial invalidation, we prefer legislative reevaluation. We believe that rational legislative reconsideration would result in partial or total repeal and that this task should be commenced immediately. For that reason we will suggest what we consider the minimal acceptable legislative response and the optimum response.
1. The Premise
Whatever the constitutional mandate, we believe legislators ought to begin as a matter of policy with the assumption that conduct harmful ouly to the actor is not a legitimate subject for the criminal law. In the first place, notions of blameworthiness, if not immorality, should underlie any criminal statute. Yet contemporary western man increasingly regards as blameworthy only that which directly or indirectly harms others; the presumption ought therefore to be that conduct harmful only to the actor should be deterred through means other than the criminal law.
Second, to the degree that the society continues to render moral judgments regarding purely personal conduct, we do not agree with Lord Devliri that the criminal law is ever the appropriate vehicle for the imposition of the dominant personal moral code. In this day of rampant relativism, imposition on the minority of the dominant personal morality is presumptuous and suspicious.
We subscribe the emergent value preference for individuality and freedom of choice described above and share justice Brandeis' warning that government is most dangerous when ft purports to "help" the individual citizen.9 In fact, we believe that contemporary society is ill advised to insist on homogeneity of conduct, even where the majority continues to attach moral blame. The danger of regimentation and stul-
S CBS Evening News, August 19, 1970. See also K. ERicIesoN, WAYwAIW P=ANS (1966).
9Olmstead v. United States, 277 US. 438, 479 (1928) (Brandeis, J., dissenting)..
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tifying conformity is one of the paramount disutilities of modem technological society-. We feel it encumbent on the legislators as designers of the social order to promote the widest possible latitude for private conduct so as to encourage the diversity that fosters the creative element in any productive society.
A third related reason for this policy premise is that the benevolent societal goal of protecting the actor from his own folly, if it should be effectuated at all, can be achieved by means other than the criminal law. Indeed, use of the criminal law for this purpose is generally less effective than other means because of the difficulty of enforcement, which itself is our final rationale for the initial premise. Laws prohibiting purely personal or consensual conduct have an ancillary effect which causes more harm to the social fabric than the mere offensiveness of deviant personal conduct-the inevitable collision of law enforcement techniques with constitutional limitations. Sacred protection of the individual's right to privacy is, to us, a far more noble end than the protection of the individual from his own folly, as defined by the dominant segment of society.
We do not pretend to have settled or even enriched the continuing philosophic debate regarding "crimes without victims." However, since the ouly rationale remaining for marijuana prohibition is that it is harmful to the user, legislative adoption of our position on this issue would dictate partial or total repeal of existing law. It should be noted that an increasing number of lawyers, philosophers and social scientists have taken this position. We recommend it to the state and federal legislatures.
2. Statutory Recoimnendations
We offer first a statutory scheme which might be palatable to legislators who still fear that further study will reveal that marijuana use has long-range ill effects. While we do not think this fear justifies perpetuation of the existing statutes, it will justify a scheme which permits those who choose to smoke marijuana to do so but which inhibits spread of the conduct; that is, it simply takes the user of marijuana out of the criminal process.
For this minimal solution, we propose:
a) prohibiting possession of more than four ounces of marijuana unless the defendant can show that it was possessed solely for personal use;
F) prohibiting public use of the drug;
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1970)    Marijuana Prohibition     1179
c) proscribing driving or operating any other dangerous machine while under the influence of the drug;
d) proscrihing transfer to any one party, of more than four ounces of marijuana;
e) prohibiting transfer of any amount to persons below the age of sixteen;
f) punishing all violators as misdemeanants.
The prohibition of possession or sale of more than four ounces of the drug fulfills the possibly justified legislative goal of limiting mass distribution and proselytizing the use of marijuana. We feel that none of the important values of right to privacy or individual freedom are involved when one individual goes beyond his own private use of the drug to proselytize. However, as we have seen above, the realities of the marketplace are such that the average user might sell to friends to support his own use. Our arbitrary choice of four ounces as the cut-off point for the criminal process reflects an assumption, based on current trade practices, that it will keep the small seller out of the criminal process while ensnaring the mass distributor. Of course, this figure should be raised or lowered if prevalent market conditions change.
Two explanatory notes are in order. First, we choose a presumptive amount approach in order to avoid the complexities of affirmative proof of intent to sell and yet to allow some flexibility for the court to release a defendant unjustly trapped by our arbitrary figure. Second, we acknowledge the inconsistency of legalizing possession for personal use and yet criminalizing conduct which must necessarily precede such possession at some point. However, we believe that this inconsistency is justified as an interim measure both by the need to keep users out of the courts and by the salutary effect of keeping most users out of contact with organized dealers through legitimization of some channels of distribution.
Similarly, the provision outlawing public use, driving under the influence and transfer to minors each serve legitimate public interests. These provisions and the penalty provision are each designed to reflect the treatment accorded the alcohol offender.
It should be reiterated that we view the above- statutory scheme as a minimal response that protects what might be perceived as legitimate public goals while not infringing the right to privacy. However, some form of legal dissemination of the drug accords philosophically and practically with the logic of the authors' views. To this end we both
HeinOnline -- 56 Va. L. Rev. 1179 1970
1180    Virginia Law Review     [Vol. 56971
predict and urge that each state adopt a regulatory scheme-either. the licensing or state monopoly models-to control cultivation, distribution and consumption of marijuana in the same way those statrs:now regulate the use of alcohol. The benefits of such a system, especially if a state monopoly controls cultivation and distribution, are manifold.; First, the state can regulate the quantity and the potency of the drug produced. Second, the state can restrict the age and other eligibility of the purchaser. Third, and most important, the state can tax the purchaser providing a valuable source of revenue to the states in a time, when lack of revenues is becoming a more and more serious problem. As a corollary, to the limited extent that organized crime is involved in the marijuana trade, any such regulatory scheme would both divert the revenue from the coffers of the Mafioso and eliminate possible contact betwen the marijuana user and its henchmen.