It has been the thrust of Chapter II through Chapter VIII that the social and financial costs directly and in-directly attributable to the criminalization of marijuana far out-weigh the benefits of this policy. Although Chapter II contained the main discussion of the costs side of the balance, it by no means exhausted these costs. The subsequent chapters, in examining one justification after another for the criminalization of marijuana, not only found these reasons weak but also—especially in the dis-cussion of the progression from marijuana use to that of more dangerous drugs—showed that what had purported to be the benefits of our marijuana policy often turned out to involve additional costs.

The "Approval" of Marijuana Use

To discuss rationally the alternatives to marijuana prohibition, however, we need to make two basic points. The first, which needs constant repetition because it is so easy to overlook, is that the refusal of society to criminalize marijuana need not imply approval of marijuana use. A decision not to criminalize marijuana would represent approval of the drug's use only if it were based on the conclusion that the drug somehow was "good." In fact, by far the most important reason to repeal the prohibition of marijuana is not that the drug is good but that the costs of criminalization are out of proportion to the benefits of this policy.

The example of tobacco illustrates this nicely. A decision by an individual to use this drug might be a very foolish one, and yet the legislature might be even more foolish if it attempted to suppress the drug by providing criminal penalties for its use or sale. The problem would be, of course, the complex and costly difficulties inherent in forcing people to do what the legislature feels, even quite correctly, is good for them.

Despite this, again and again one hears the argument that a decision to repeal the criminalization of marijuana would be universally regarded as a positive approval of the drug's use. It is hard to feel that any large proportion of the public will remain that unsophisticated as the facts are more fully discussed. It should be obvious to all that the large range of immoral or otherwise reprehensible conduct that we do not make criminal nonetheless meets our disapproval. None of the seven deadly sins, in itself, is a crime. Nor is rudeness, or failure to show respect for age, or affection for one's children. Masturbation, which fifty years ago was regarded very much as marijuana is today, in that it supposedly not only led to other vices but "weakened the mind" as well, has never been a crime in almost all states.

Nor is repeal of an already existing criminal prohibition any more of an approval. This argument was raised with respect to Prohibition and there rejected as misguided. Indeed, the modem legislative trend has been to reject this argument in various con-texts. For instance, in a number of jurisdictions, the criminal sanc-tion has been withdrawn from various forms of previously illegal, private sexual conduct—such as adultery and homosexual rela-tions between consenting adultsl—despite the argument that re-peal constituted an approval of the conduct in question.

More importantly, the entire argument about approval of marijuana use must be seen in perspective. Whether or not society approves of marijuana use should be relevant only insofar as it increases the damage done by the drug. Indeed, though alcohol overuse is a serious public-health problem and we are devoting considerable amounts of energy to reducing the impact of that problem, very few people today even ask whether society approves of that drug. We will return to this issue later when we attempt to evaluate the consequences of different alternatives to the Criminalization of marijuana.

Alternatives to Criminalization

Another fundamental point we must remember is that restricting drug use is not necessarily an all-or-nothing propo-sition. The fact is that we already control various drugs other than marijuana with considerably less reliance upon the criminal law. In short, merely because we find that the costs outweigh the bene-fits of criminalizing marijuana does not mean that we should make no effort to control the drug at all. Our object will be to maximize the excess of the benefits produced by the law over its costs. To do this we may have to select among a set of already existing legal models for the control of substances, to modify one of these, or perhaps to create a whole new type of legal treatment.

The "Sugar Candy" Model

What then are the available models? First, it could be argued that the law should simply withdraw from the marijuana area—that society should merely enforce certain guarantees of quality, purity, and the like, as with a food substance such as sugar candy, and except for this, allow the drug to be freely produced, sold, and advertised.

Even though this solution—no attempt at control at all—might be better than our present policy, the chances are that we can do considerably better yet. We should not forget that governments have, for good reason, enacted legal controls on the two other major psychoactive drugs used in our society. In an attempt to cut down on their consumption, we tax both tobacco and alco-hol at rates far out of proportion to those on other kinds of luxuries. In addition, states commonly have prohibitions, more honored in the breach than in the observance, on sales of cigarettes to minors, and considerably more complex methods of control with respect to alcohol. These include licensing sellers of the drug, with the criteria for licensing ranging from the moral character of the licensee to the number of other sellers in the area; restric-tions on certain types of advertising; and prohibitions on furnish-ing the drug to minors or selling it at certain hours or within fixed distances of schools or churches.2

Though it is perhaps more interesting to ask why the con-trols we have put upon cigarettes and alcohol are so relatively feeble and ineffective, our concern here is with a much simpler issue: why we seek to control these substances at all.

At least as a first approximation, our justification for these essentially noncriminal controls is that though occasional or mod-erate use of these substances seems harmless, heavy use df either tobacco or alcohol is harmful both to the individual and to society. In the case of cigarettes, the harm to society is caused by the drug-dependent individual's damaging himself physically through lung cancer, emphysema, and various circulatory diseases. In the case of alcohol the abuser causes not only serious physical and psy-chiatric damage to himself, but also the more direct damage to society stemming from shattered family and employment relations and aggressive or reckless acts committed under the influence of the drug.

In short, although the costs of using the criminal law to out-law these "socially approved" drugs obviously outweigh the benefits of criminalizing them, this does not mean that society has no strong interest in minimizing the abuse of these drugs.

Although, as the preceding chapters have demonstrated, it is perhaps more difficult in the case of marijuana to come up with any simple reason as strong as the danger to life in the case of cigarettes or as the dangers to life, to mental health, and to others in the case of alcohol, there is nonetheless good cause to attempt the control of marijuana.

In the case of marijuana, just as in the case of alcohol or tobacco, no matter what means of control is attempted, there will be those who will use the drug to their own and to society's detriment. The dangers of marijuana may have been grossly exag-gerated, but as shown in Chapter V, they are far from negligible—especially for the very young. And although the total number affected seriously may still not be very impressive compared to the magnitude of other public-health problems, there is no reason why we should not strive to keep it as low as practicable.

There is in addition a unique social reason for the control of of this drug. Marijuana today not only appeals powerfully to the young but seems to appeal especially to the more educated, intelligent, and highly motivated members of that group. These users, including a large and growing number who are no longer minors, are often in varying degrees dissatisfied with aspects of society; in some sense, indeed, they use the drug as a protest against societal conditions. The fact is, however, that the use of any kind of psychoactive drug, including marijuana, can turn its user away from solving the societal problems responsible for his dissatisfaction. Even though this type of user by no means becomes a public charge, he may fail to realize his full value to society or to himself.

It would seem clear, therefore, that we should treat mari-juana Considerably more respectfully than we do sugar candy. However, this conclusion does not help us in deciding how to go about the matter. To decide this issue, we must turn to the three major models of drug control—the "vice" model, the medical model, and the "licensing" model—that at least on first glance seem most promising.

The Vice Model

The first model, the "vice" model, is the one least at vari-ance with the current complete criminalization of marijuana. Based upon two propositions, the vice model both accepts the view that marijuana use is a vice that society has a strong interest in suppressing, and at the same time recognizes that the social costs of the law become unnecessarily high under the complete criminalization that makes the drug-user into a criminal. Under the vice model, the selling or trafficking in marijuana would remain criminal, but the mere user would be freed completely from any threat of criminal punishment.

This is a common pattern of legislative treatment in the area of consensual or victimless crimes. In many jurisdictions, the seller of various types of illegal goods and services such as gambling, prostitution, abortion, and even many drugs in the absence of a prescription all commit crimes while their customers are guilty of no criminal offenses.3 The usual explanation for this difference in treatment is that the consumer of the vice is merely a victim who needs help not punishment, while the seller is guilty of an aggravated evil in making a profit from the weaknesses of others. Of course, a much more pragmatic reason is the fact that there are far fewer suppliers of illegal goods and services than there are consumers. If the criminal law can be brought to bear against this smaller group, we can secure most of the benefits of restricting the supply of the illegal services without incurring the much larger costs attendant upon turning all the consumers into criminals.

The adoption of the vice model for control of marijuana would cut down sharply on the cost of the marijuana laws. Since arrests for possession of small quantities of the drug comprise two-thirds of the total number of marijuana arrests,4 elimination of these would not only avert countless personal tragedies but would save the public the large outlays of money and law-enforcement effort required to process these arrestees. This would, moreover, lessen the criminogenic tendency of the marijuana laws by re-ducing the likelihood that users who are guilty of no crime„ other than marijuana use will be imprisoned with others more criminally inclined and/or more deeply involved in the drug culture. Finally, and most importantly, marijuana laws based upon the vice model would no longer increase the alienation of our youth by turning such a large proportion of them into criminals.

In short, the withdrawal of criminal sanctions from simple marijuana possession would be an acknowledgment that the ratio of prospective users deterred by the present law to those criminalized by it had fallen below an acceptable level. It would be an admission that the stringent marijuana-possession laws are no longer fulfilling their function of deterrence sufficiently to make them worthwhile and that as a rational society we should use a different approach.

Details of the Vice Model. The adoption of the vice model for marijuana would not, of course, answer all questions with re-spect to our treatment of the drug. There would remain a host of other significant issues to be decided, and although an under-standing of these is not essential to appreciate the advantages and disadvantages of the model itself, a study of these issues will give a perspective on how such a law could be expected to work.

For instance, the decision to treat marijuana possession as noncriminal does not mean that we must define marijuana to include all the substances that share the same active ingredient or ingredients. Hashish (consisting of the resin of the cannabis plant), the synthetic drug and its derivatives, and any concentrate of the usual botanic form of the drug are not only far less common but arguably more dangerous than marijuana. Even assuming that all these substances share exactly the same active ingredient, the likelihood of abuse of the more concentrated forms may be thought greater on the theory that users, especially inexperienced ones, will find it more difficult to titrate their dosages and hence will be more likely to receive an overdose. Moreover, the lower number of users of these substances would mean the cost of criminalizing them would be far less than in the case of marijuana.

This is not to say that it is the most sensible policy to re-tain criminalization for all marijuana concentrates. It may well be that hashish should be treated no differently from marijuana, or indeed that criminal penalties for the drug-user are not a sensi-ble social policy for the control of any drug; the point is simply that the decision to treat marijuana according to the vice model does not necessarily imply a decision to do the same with the concentrates of the plant substance.

Although the basis of the vice model is the decision to draw the line, so far as the criminal law is concerned, between the user of marijuana and the trafficker, this formulation conceals another definitional problem. We must ask whether we wish to treat every seller of the drug as a trafficker. Although at first glance it might appear obvious that all marijuana sellers are in business simply to make a profit, this turns out not to be the case. We have had occasion to remark in Chapter VI that the distribution system for marijuana, at least at the lowest level, is hardly directed either toward "pushing" the drug or to maximizing profit. Several studies have indicated that, although much of the selling of marijuana is actuated by the desire to turn a quick profit, about one-fifth of the users of marijuana have sold small quantities of the drug on occasion to friends who tacitly agree that they will return the favor if the drug becomes more available to them.5 If this is so, a strong argument can be made for lowering further the costs of criminalizing marijuana by beginning the application of the vice model at a somewhat higher level in the chain of distribu-tion and hence treating such small-scale sales no differently from possession.

On the other hand, it is likely that, if we exempt from punishment sales of less than any given amount, law-enforce-ment authorities may have great difficulty in apprehending the full-time dealer at retail who deals in amounts just below the limit This is not a simple problem, though it is, of course, small in comparison to the importance of the broader issue. It might well be that the best compromise would be a law somewhat dif-ferent from the usual section on sale of a drug. Although such laws usually forbid giving a drug away, as well as sale, a compromise section might be more narrowly drafted to make criminal only sales of marijuana for money or valuables. This would avoid the criminalization of the large number of marijuana-users who furnish the drug to friends with no commercial purpose—provided only that they do so without charge and hence out of pure friendship.

Even as thus narrowed, such a law, by making all sales criminal, would result unavoidably in criminalizing a large number of occasional small-scale sellers of the drug who in no realistic sense can be called traffickers. It would seem advisable for our penalty structure to take account of this by grading the serious-ness of the offense according to the amount sold. Thus, dealing with the quantities that are most used in the marketplace, sale of an ounce (referred to in the market as a "lid" and costing per-haps between ten and twenty dollars) or less could be a petty misdemeanor punishable by up to three months' imprisonment; sale of more than an ounce but no more than three pounds—the usual unit in which marijuana, in large scale, is sold is the kilo-gram, which equals approximately 2.2 pounds and sells for between one hundred and three hundred dollars—could be a misdemeanor carrying a maximum sentence of one year; and sale of more than three pounds might be a felony punishable perhaps by a maximum of five years in prison.

There is yet another reason why the distinction between the user and the seller raises problems in the marijuana area. Actual use of any drug—marijuana more so than most—is so difficult to prove that we typically reach it, under criminalization, by statutes making possession criminal. The converse, however, does not always apply. The fact that we no longer make marijuana use criminal does not mean we must repeal all laws against possession of the drug.

There will be many occasions when the mere possession of a quantity of marijuana so large that it cannot, as a practical matter, be used by the possessor will give rise to a strong inference of trafficking. Possession of such an amount should be treated the same way as sale. It would seem that for this purpose half a pound (a little less than a quarter of a kilogram) would be a reasonable starting point, with possession of more than that amount being treated as a misdemeanor, punishable by a maximum of one-year imprisonment.

A specific limitation of half a pound on the simple marijuana-possession offense would, to the extent it could be enforced, have the effect of making trafficking economically unfeasible, while at the same time exempting almost all ordinary users from criminal sanctions. Similarly, possession of a very large amount —over ten pounds—probably indicates at least as serious an involvement in trafficking as actual sale of three pounds, and hence it should be treated as we treat such a sale. As a result, possession of more than ten pounds (a little less than five kilograms) might be treated as a felony punishable by, say, a maximum of five years.

One could argue that it might be better to handle the prob-lem of possession of large amounts by creating an offense such as "possession for the purpose of sale," which would introduce a rebuttable presumption of intended sale from the possession of more than a given quantity of the drug. Some states (such as New York) have done this6—though as part of a system in which possession itself is already criminal, the large amount possessed merely making it a more serious crime. The problem with this type of law is that it raises so many legal problems that it may become more cumbersome than it is worth.7

In addition to regarding the quantity of the drug involved as an aggravating factor, we must consider one other major area of aggravation. Our law should reflect the fact that a major reason for attempting to control marijuana is the effect of the drug upon the young. Although in dealing with the adult population the vice model seeks to criminalize only the commerical trafficker, different concerns might motivate us with respect to minors. We might then be sufficiently concerned with keeping the drug out of their hands to criminalize anyone who furnished the drug to a minor, as a gift as well as by sale, even though we required actual sale where the drug was furnished to an adult. Moreover, furnishing the drug to a minor might well be treated as an ag-gravating circumstance leading to increased penalties. Selling any amount of the drug to a minor would then be at least a misde-meanor, and we might make a felony of selling all bui a very small amount.

Finally, the decision to adopt the vice model with respect to adults does not logically require that we immunize from criminal penalties the minor who uses marijuana. Although we have a tradition in our society that, within broad limits, competent' adults may make decisions to do things that may not be in their best interests, this freedom of choice is considerably restricted as to minors. There is no obvious reason why we must extend freedom of choice in drug taking to those whom we will not permit to bind themselves by contract, to marry without parental consent, or to take a large number of other important steps that are per-haps no less significant than drug use.

On the other hand, this issue is by no means clear. It can be argued that it would be most inadvisable to make possession of marijuana by a minor a crime and that the disadvantages of criminalizing the minor who uses marijuana outweigh whatever advantages there might be in increased deterrence. Those jurisdictions that have tried to regulate alcohol and tobacco use by the young by making criminals of young users have been conspicuously unsuccessful.8 The processes of the criminal law are hardly suited to solving the psychiatric problems of juveniles, and it is arguable that by adding to the thrill of an activity that adults can perform legally, the criminal penalties increase rather than deter use by the young.

The final major problem with respect to minors is that, with respect to marijuana, the age of twenty-one is a most unrealistic dividing line between the adult and the minor. It may well have been the case some time ago that young people were less sophisti-cated about the dangers and effects of drugs than were their elders. It certainly is not true today—even though, of course, young people may often underestimate the dangers of drug use. The age of eighteen marks, for most youths, the transition from high school to college; and if in many jurisdictions youths at the age of sixteen are old enough to drive automobiles, and if in most states girls at eighteen are old enough to take the far more serious step of marrying without parental consent, it can be argued that eighteen-year-olds should be permitted the same access to mari-juana as is enjoyed by adults. This lowering of the age of majority from twenty-one to eighteen is in keeping with other aspects of our law and society. Most authorities in the field of alcohol studies feel that alcohol could better be regulated and alcohol misuse better controlled if the age limit of twenty-one maintained in most jurisdictions were reduced to the more realistic level of eighteen.° The same may be true of marijuana.

In addition to these fairly significant questions that adoption of the vice model would raise, we must also confront a host of relatively minor issues. Since drawing the line between the user and the trafficker is a means to diminish the supply of marijuana, the vice anodel would probably imply a prohibition against culti-vation of the plant, or otherwise adding to the supply of the drug such as by importation. And since, whether their attitude is ra-tional or not, many people are shocked and offended by the use of marijuana, it could be argued that because of this "public decency" aspect, the use of the drug in a public place should be forbidden. Finally, regardless of whether marijuana use causes impairment in one's driving ability of the same order of magni-tude as alcohol (see Chapter VIII, p. 102, 113—p. 103, 4113), some provision should be made covering driving while under the influence of marijuana.

Arguments Against the Vice Model. The vice model has been attacked both by those opposed to any liberalizing of the marijuana laws and by those favoring even more extensive lib-eralization. The attacks by those opposed to liberalization are based on several grounds. Probably the most often-heard of these arguments is that there is something inconsistent in making the seller a criminal while not punishing the buyer at all. Thus Dr. Donald B. Louria argues: "If the drug is to remain illegal, it seems incongruous and unfair to punish the purveyor but not the buyer who encourages and supports the seller's criminal activities."10

It should be noted that this argument is almost always put forth as a reason for criminalizing marijuana-users rather than for making the selling of the drug noncriminal. Adoption of the vice model, however, would be no more inconsistent in the case of marijuana than it is in the case of gambling, abortion, prostitution, or a number of other crimes for which practicality, rather than an abstract symmetry, dictates our legal treatment.

The Condonation Argument. The next argument raised by opponents of liberalization is that by adopting the vice model and freeing the marijuana-user from criminal sanctions we would be "condoning" marijuana use. If by condoning something, one sim-ply means that we do not make it criminal, then the argument merely states a truism; if by condoning one means that We are approving of marijuana use, then we have already discussed this argument and found it unpersuasive. It is hard to argue that society approves of everything it does not make criminal, and such an argument has even less force where we adopt the vice model with respect to an activity rather than merely licensing it or leaving it unregulated. It would seem that making sale of or trafficking in marijuana criminal is disapproval enough, assuming that disapproval in the abstract has anything to do with the matter.

Despite the unsoundness of this "condonation" argument, some concession to it might as a practical matter be necessary in order to secure the adoption of the vice model, at least in the near future. Thus under a compromise proposal, the possession or use of marijuana would be treated as an "infraction," technically a crime but punishable by a small fine rather than imprisonment and not making the user subject to arrest. The argument for this solution is that treating marijuana use very much like a parking or minor traffic offense would not increase the costs of marijuana control over what they would be if the pure vice model were adopted, but would nevertheless express society's disapproval of the use of the drug.

It is hard to disagree too violently with such a modification of the vice model. The infraction law could not often be enforced if only because it would not be worth the policeman's time to do so, while marijuana-users would presumably see the provision for what it was and regard the violation as no more significant than illegal parking or the purchase of cigarettes by one under sixteen. The argument against modifying the vice model by treating marijuana possession and use as an infraction is not then that this would be harmful or costly but rather that it would be useless and hence somewhat foolish. Compared, however, to the short-comings that our marijuana laws have exhibited over the years, such defects are venial indeed.

The Weakening of Deterrence. The vice model, however, has been attacked as too lenient on considerably more practical grounds than its lack of symmetry or its condonation of marijuana use. It has been argued that the relieving of the marijuana-user from criminal sanctions would weaken our deterrence of mari-juana use and hence increase the number of users in our popula-tion. To'some extent this is probably true. While the chances are that some youths actually use marijuana because its very illegality makes it especially suitable for demonstrating rebellion against parents or society, it is likely that even more people are deterred from the use of the drug by the threat of criminal penalties.

On the other hand, whatever the effect of the present law on the sale or importation of the drug, it is quite clear that the number of those who are deterred by the law from using mari-juana is growing smaller each year. First of all, the threat of arrest decreases each year as the increase in use forges ahead even of the rising arrest rates» More important, the great ma-jority of those who do not use marijuana report that the law does not enter their decision—perhaps because so many believe that they will not be caught. Thus in several recent studies of marijuana use it has been revealed that, of the nonusers of the drug, about three-fourths do not even list the law as one of the reasons they have not tried marijuana.

These reports are, of course, subject to all the frailties of a person's evaluations of his own motives. Nonetheless, if believed, they show that some of the nonusers had abstained be-cause they were morally opposed to the use of any intoxicants; some because they feared the effects of marijuana; some because they had "better things to do" with their time; some because they were afraid of smoking something that might weaken their re-solve to stop cigarette smoking; some because they hadn't gotten around to using the drug; and finally some, a very few, because they did not lmow where they could obtain the drug without too great a risk of apprehension. In a sample of students at Cali-fornia Institute of Technology, fewer than twenty percent of the nonusers of marijuana regarded the law as a major reason not to use the drug. Of these, eleven percent stated that they wished to avoid the risk of legal or security-clearance problems, while eight percent as a matter of principle wished to avoids doing what was illegal.12

Another attempt to measure the deterrent effect of the mari-juana laws was a careful study by two law students, Ellen Green and Bruce Blumberg, who sampled the student body at the University of California Law School at Berkeley.12 They found that seventy-three percent of this student body had used marijuana, a figure that is quite striking when one considers that law students would be expected to be among the most deterrable members of our society. Being involved in the law, they are more likely to know of its consequences; studying for a profession that regards moral character as one of its prerequisites, they would be risking more than arrest or imprisonment if detected using marijuana; and, finally, at least most observers have considered lawyers and law students to be among the more conservative and cautious groups of our student population.

It is interesting to note, moreover, that in addition to the seventy-three percent who had used marijuana, another sixteen percent had committed a lesser criminal offense. Although they had not used the drug themselves, on at least one occasion they had remained in a place where they knew marijuana was being used in violation of a California statute that makes this punishable by a penalty of up to six months' imprisonment.

In addition to the total number of law students who had not in fact been deterred by the marijuana laws, another aspect of the Green and Blumberg study sheds light on the deterrence issue. Of those who had not tried marijuana, only one put as his most important reason the "fear of arrest and probably convic-tion," while only one other did not use the drug because he "didn't want to break the law." Moreover, of the twenty-two members of the sample who had tried marijuana but had ceased using it, only two listed the "fear that a marijuana conviction might prevent me from being admitted to the bar," and none had conscientious objections to breaking this law.

Similarly, Keeler reports that fourteen out of his sample of fifty-four users had given up the use of marijuana. Although several had stopped because they did not like the effects of the drug and others had stopped for various other reasons, including developing religious scruples against the use of drugs, only one said he had stopped because he did not want "to take the slightest risk of trouble with the law."14

Another study indicates a similar effect of the law on mari-juana use. Thus, McGlothlin and West sampled 110 mature users and nonusers of marijuana who had at one time received LSD under medical conditions. Of those who had not already used marijuana, sixty-five percent stated they would not use it, while only eleven percent fewer, fifty-four percent, stated they would not use it even if it were legalized. It should be noted that this group is considerably different from the typical marijuana-user at whom the law's deterrence is primarily aimed. The median age of the sample of nonusers was forty-six.15

Not only is the prohibition of marijuana possession or use a comparatively ineffective means of lessening use, but insofar as the law deters potential users, it deters the wrong people. If, indeed, the primary injury caused by the drug is to that fraction of the users who are emotionally unstable and who are heedless of the consequences to themselves, it is hard to believe that these people will be significantly deterred by the relatively low risk of apprehension more than by the chance of damaging themselves through drug use. At least in the areas where marijuana use has not yet become extremely popular we know it is the less stable members of the community who will defy convention and use the drug. Thus, Steffenhagen and Leahy, in their study of Vermont high-school students, classified as not "basically stable" seventy percent of the admitted users, fifty-eight percent of the potential users (those who said they expected to use the drugs if the "right" opportunity presented itself), and thirty-six percent of those who were neither users nor potential users.16

Those who are deterred from the use of marijuana by the extremely small chance of apprehension, however, are probably the least likely to use the drug to their injury. Many advocates of punishment for marijuana use have admitted that the more stable members of the community would in all probability use the drug in moderation and suffer no real ill effects from it." Penalties for marijuana use have been defended on the ground that we must protect the less stable members from themselves. The prob-lem, of course, is that it is only the more stable and conservative members of the population, those who carefully consider the long-term consequences of their actions, who are likely to be deterred by this type of criminal law.

The Disappearance of Informants. The other of the two pragmatic arguments that the vice model is too lenient a treat-ment of marijuana is that, even aside from any lessened deter-rence of users, the elimination of criminal penalties for marijuana use will make the apprehension of marijuana traffickers much more difficult. According to this argument, the threat of prosecu-tion makes marijuana-users, when apprehended, much more co-operative with the police in revealing the source of their drug and hence is a valuable means of combating trafficking in the drug.

There are several problems with this reasoning. First, the application of criminal sanctions to the marijuana-user, during the more than thirty years they have been in effect, has hardly been very effective in throttling the marijuana traffic. One reason for this is that, although the laws criminalizing heroin are en-forced to a great extent by police utilization of users to help catch sellers, the problem as to marijuana enforcement is more com-plex. Unlike the typical heroin addict, who in many senses has been degraded both by his addiction and by the life he has had to live to maintain it, today's typical marijuana-user is not very different from the average American of similar age.

He is much less likely to violate the strong ethic against "turning in" his source—especially since the source so often is a close friend. Moreover, the nature of the marijuana traffic itself makes it much more difficult for the police to use his information. Although we still do not know as much about the marketing of marijuana as we do about heroin, it appears that the marketing of the two drugs is very different. Whereas, at least in the United States, we are told that the illegal heroin traffic is comparatively tightly controlled by organized crime with relatively few levels of distribution, the marijuana traffic between the importer and the user is much more complex.

First of all, at the lower levels it is not only dominated by amateurs but dominated by those who do not even consider themselves in the business at all. Rather, they sell part of their supply as a convenience to their friends and because, to minimize the risk of detection, they are forced to buy in larger quantity than they can use. Marijuana sales by such "traffickers" are so com-mon and casual that, even when the buyer is willing to supply information, it is not worth the law-enforcement agency's effort to outfit him with a concealed tape recorder or other equipment to make sure that they can build a case that will stand up in court. As a result, the great majority of marijuana sellers are caught by undercover agents who purchase the drug from them entirely without the aid of any apprehended users.

This has been documented by the only study done on the specific issue. Robert Schneider, a law student at the University of California Law School, attempted to

discover what information police investigators obtained through the questioning of those arrested for violations of marijuana pos-session laws and the importance of that information in the overall enforcement of the marijuana laws.
After analysis and interview in about a dozen different police departments and of a group of those arrested for marijuana use, Schneider found that only about five percent of those arrested for marijuana possession were even questioned by the police as to their source. Schneider's conclusion from his study is that

in most areas, information gained from the questioning of those arrested for the possession of marijuana is not an important source of the facts that lead to the arrest of those selling the drug. Even those officers who thought such information was an important source, stated that the number of those who will cooperate or even talk to the police is decreasing,18

Moreover, even if the technique were much more effective than it is, its cost in social terms would still far outweigh its worth. Since the apprehended user who "cooperates" to avoid a jail sentence must produce arrests, he is under great pressure to do so regardless of the facts. In such a situation the temptations to secure convictions through entrapment, if not through the out-right planting of evidence, are so strong as to make this kind of enforcement replete with the danger of convicting the innocent.19

In addition, the attempted squeezing of "cooperation" out of arrested marijuana-users is one of the most resented facets of the whole criminalization of marijuana. Police efforts in this direction, even when only halfhearted, convince many maiijuana-users and even marijuana sellers that the police are involved in a far dirtier business than they themselves. And though such efforts take place only in a small minority of marijuana arrests, the possibility of being threatened into turning informer is ever present as a contributing factor in the alienation of marijuana-users.

We have now considered the arguments raised by opponents of liberalization that use of the vice model for marijuana would be an unduly lenient treatment of the drug. Even if all the above arguments were correct, the enormous lessening in the social costs of the marijuana laws caused by the withdrawal of criminal sanc-tions from marijuana-users would seem to outweigh these purported disadvantages and make the vice model far more attractive than our present criminalization.

The Costs of the Vice Model. We next turn, however, to consider the arguments that the vice model is too stringent a means of controlling marijuana and that it does not depart sufficiently from present law. It is true, these arguments admit, that the vice model restricts the supply of marijuana almost as much as does present law; it is maintained, however, that the model is too stringent because, at a price of not increasing the availability of marijuana, it retains the costs inherent in criminalizing the distribution of the drug.

These costs are by no means small. Insofar as our making trafficking illegal does restrict the supply of marijuana, the benefits of this must be balanced against the likelihood that some marijuana-users unable to obtain that drug will therefore use more dangerous but perhaps more available drugs. The serious disadvantages of the vice model, however, are in great part the consequence of the fact that it is not any more able to restrict the supply of marijuana than is our present criminalization. As a result, though the vice model will no longer turn a large percentage of our young population into criminals, it will, insofar as they still want the drug, force them to deal with those whom we define as criminals to get their supply of marijuana.

To be sure, the vice model may be successful in reducing somewhat the large volume of small-scale amateur selling that characterizes the marketing of marijuana, since users will no longer be able to reason that their use of marijuana is so seri-ously criminal that they might as well be hanged for a sheep as a lamb and sell the drug too. On the other hand, the restrictions on availability of the drug will be such as to put strong informal pressures on those users who happen to have a good connection to sell the drug as a favor to their friends. And, insofar as the vice model is actually successful in reducing amateur selling, this will have two serious disadvantages.

First, it will mean that those who sell the drug to otherwise noncriminal users will themselves be the professionals who are more deeply involved in both crime and the drug culture; second, it will increase the existing danger that organized crime will enter the picture. We will be further restricting the amateur competition that tends to make marijuana trafficking less attractive to organized crime at the same time as our young population, which is obviously not very reluctant to use the drug presently, responds to the elimination of penalties for use by increasing somewhat the market for the drug.

Moreover, so long as we criminalize marijuana sellers, we will, by driving them underground, continue to make it impossible to exercise the necessary controls on either the quality or the kind of drugs they sell. If we are worried about the public-health aspects of other more hazardous substances being mixed with purported marijuana, complete criminalization of all sale is a most inefficient way of combating this. And, more importantly, the illegal selling of marijuana will continue to provide an entry into the drug culture and thus a ready distribution network for other more dangerous drugs.

Finally, although the difficulties in drug education caused by the complete criminalization of marijuana might be somewhat reduced by the adoption of the vice model, it is not very likely that this effect would be great. It is true that the alienation of marijuana-users might be reduced by no longer branding them as criminals and hence the marijuana issue might become a less urgent one. And there might be some educational value in applying the vice model to marijuana while completely criminalizing the more dangerous drugs. Nonetheless, the disparity in treatment between alcohol and marijuana would remain so glaring as to plague the credibility of any effort to educate young people as to the dangers of any drugs.

In short, the vice model, though a distinct improvement over our present criminalization, still imposes heavy costs upon society. This naturally prompts investigation as to whether Ike can reach a more favorable balance between the benefits and costs of marijuana control. We will therefore examine the two other models available—the medical and the licensing models—which attempt to control the distribution of marijuana without incurring the costs of criminalizing it.

The Medical Model

The first of these, the medical model, involves a consider-ably more drastic change from present law than does the vice model. Under it, we would simply define marijuana as a mild sedative and tranquilizer, which the drug undeniably is, and let it be sold under prescription like a host of other drugs.

In the great majority of its applications, the medical model is combined with the vice model, since the user of the drug, even if he has obtained it illegally, is not thereby made a criminal. Actually, of course, this is not logically necessary. Several states and the federal government have, in very recent years, extended criminal penalties to the illegal users of amphetamines and bar-biturates which, though treated through the medical model, have been widely abused outside medical channels. It is hard, how-ever, to see that much good has been done by this additional criminalization. The changes in the law have failed either to halt the increasing use of these drugs or to provide treatment for those who have suffered from their effects. In part this seems due to the facts that the users of drugs as dangerous as these are even less deterred by criminal penalties than are marijuana-users, and that use of the criminal law to give these users the treatment they require probably does them more harm than good. On the other hand, for various reasons—including primarily the smaller numbers of those criminalized by these laws—this criminalization is far less costly than that of marijuana.

In any event, the application of the usual medical model to marijuana would have two advantages. First, we would not make criminals of the users of marijuana, and second, we would permit many sales of the drug under medical prescription. Under the medical model, of course, sales without a prescription would remain criminal, but it would be hoped that a high enough percentage of the marijuana traffic would move within legitimate channels to disorganize greatly the illegal traffic and allow a concentration of law-enforcement resources that would make en-forcement of the criminal law far more practicable.

On first glance, use of the medical model for marijuana might locik promising. As a theoretical matter, it would appear possible that large numbers of marijuana-users would be able to convince their doctors that the drug helped them relax from the stresses and strains of everyday life. Though spokesmen for the medical profession tell us that marijuana has no recognized medical uses, this not only is less than completely obvious, but also comprehends a quite narrow definition of "medical use." If the medical profession takes an interest in the problems of ad-justment of young people both in psychological and in social terms, and is thus willing to prescribe the drug, it could be argued that the provision under medical supervision of this type of tran-quilizer and relaxant would be the best means of marijuana control.

The practical problems with this proposed system of control, however, are overwhelming. Even if one conceded that marijuana has some beneficial effects as a relaxant and social lubricant, it would be disingenuous to argue that these are the only reasons why people use the drug. Prohibition, which, though this is not widely known, applied the medical model to alcohol, was hardly successful.2° Despite the cooperation of some members of the medical profession in prescribing beer, wine, and whiskey for a large variety of ailments, the demand for prescriptions dwarfed the supply.

Marijuana, like alcohol, tobacco, and even coffee, is a funda-mentally recreational drug. Most of those who use it do so not because it does something therapeutic for them, but because they like its effects. As a result, the physician who prescribes mari-juana would usually be doing so not purely from a concern for the health of his patient but probably more in an effort to lessen the costs to the patient and to society of violations of the crim-inal law. It is not likely that the medical profession could be induced to regard this as one of its functions, and even if it did, the chances are that the great majority of general practitioners would not cooperate in it—if for no other reason than that they accept a great part of the law-enforcement position on the, dangers of marijuana. Finally, even if all physicians did cooperate fully in making the medical model work for marijuana, the number of users would be so great that doctors simply would not have enough time to take care of their marijuana prescribing and their other duties as well.

The Licensing Model

Accordingly, we must turn to the final model available for the control of marijuana, the licensing model. Under this, we would treat the drug essentially as we do alcohol, licensing sellers who meet certain conditions and, of course, making sales by those who are unlicensed seriously criminal. Although it may on the surface seem that such a method of control is really no control at all, there are several ways in which the licensing model would exert a control of marijuana even greater than that of the vice model or indeed complete criminalization.

Quality and Potency Control. First of all, aside from the impractical medical model, only a licensing system allows control of the quality of the drug sold. Just as the repeal of Prohibition meant a sharp decrease in the incidence of blindness and death from the drinking of wood alcoho1,21- licensing would greatly lessen any problem of harm either from adulterants in marijuana or from the mixtures of LSD and oregano that have occasionally been used to counterfeit that drug.

Even more important, a licensing system would allow the establishment of uniform standards of potency for all marijuana. For instance, it might be provided that all marijuana sold must be between 1 percent and 1.25 percent delta-1 tetrahydrocannabinol, with the licensee having the responsibility of diluting more powerful grades with less powerful ones so that this uniform strength could be maintained. Even though tetrahydrocannabinol may not be the only active ingredient in marijuana, this would be a significant improvement in our control of marijuana—completely unobtainable where sale is made criminal—in that it would sig-nificantly reduce the danger that inexperienced users would mis-takenly take an overdose of the drug.

More importantly, a licensing system, by maintaining uni-form (and not too high) standards of potency would better allow us to control the spread of hashish. Law-enforcement agents have often explained the relatively mild effects of marijuana in our society 'by asserting that it was marijuana prohibition that had prevented the relatively stronger grades of the drug from becom-ing widespread.

The AMA-NRC Committee report set out in Chapter V, in discussing the possibility of a licensing system for marijuana, assunies, as have most commentators, that "if the potency of marijuana were legally controlled, predictably there would be a market for the more powerful forms."22 This statement is lit-erally true but its implication is misleading. Whether or not the potency of marijuana is legally controlled, there will be a market for the "more powerful forms." Indeed, the principal draftsman of the statement, Dr. Dana Farnsworth, has, after making just this statement, acknowledged that under our present criminaliza-tion of marijuana, the use of hashish has already begun to spread —perhaps an understatement considering that in the fiscal year 1967/68 federal authorities seized more hashish than they had in the previous twenty years combined.23 The implication, however, that licensing weaker grades of marijuana is more likely to speed this process than to retard it, is false. If people want the more powerful drugs, then licensing less powerful ones may not be sufficient to dissuade them; but the availabilty of a legal and con-venient, though less potent, alternative, it would seem, could only shrink the market for the more potent grades—as well as free large amounts of law-enforcement resources for the task of sup-pressing the illegal traffic in these drugs.

The dangers of hashish may be an argument for criminalizing that form of the drug, but a little thought reveals that criminalizing the weaker marijuana, if anything, will increase the use of the stronger drug. First of all, the youth, deciding between the use of hashish and marijuana, may be influenced by the fact that hashish smoke is far less easily discernible than that of marijuana. Moreover, since dealing in both types of drug is approximately equally criminal, the law exerts no pressure away from dealing in the stronger forms. And economics, in terms ,of ease of smuggling and concealment, exerts a contrary pressure.

A licensing system, however, can exert pressure away from stronger drugs. So long as marijuana of sufficient potency is avail-able, even though it is not perhaps so strong as desired, the preference for legal and convenient drug purchasing will incline users toward the use of the more available rather than the stronger drug. Our experience during Prohibition illustrates this. During the period from 1920 to 1933 there was a movement toward the use of more powerful alcoholic drinks such as gin and bourbon and away from the less powerful beer. This was in great part a consequence of the fact that the higher value per gallon of the stronger drinks made them more economic for bootleggers to produce, transport, and sell. Interestingly, since the repeal of Prohibition, the ratio of hard-liquor sales to sales of beer has dropped.

Indeed, once we see the issue as to which is the better way to arrest the spread of hashish—licensing or forbidding its princi-pal and most logical competitor—the answer becomes fairly clear.

Control of Price. Aside from controlling the potency of the marijuana sold, the use of the licensing model for marijuana exerts another important control over the drug; it allows us, within certain limits, to control price. Though most people do not know it, the price of alcohol typically has risen in the states that have repealed Prohibition. At first this seems paradoxical. It is certainly true that the seller of a prohibited drug demands a very high profit margin to compensate him for the risk of apprehension he must take. If marijuana sale were simply legalized under license, one would think that the price would drop sharply since the legal seller would no longer be taking any risk. The reason the price does not drop, however, is that once prohibition is repealed it then becomes possible to utilize an even more effective method of raising prices—taxation.

One cannot, of course, collect taxes from an activity one has made seriously criminal, but once sale of a commodity is permitted, it turns out that it can bear a considerable financial burden before substantial numbers of bootleggers, who sell outside the licensing system to avoid the tax, are enticed into the field. The reason for this is that the great majority of consumers are willing. to pay a considerable premium to obtain the commodity from one legally licensed to sell it. Perhaps this is because of the quality control that is possible under licensing, perhaps because it is more convenient to go to a regular place of business rather than hunt up one's "connection," or perhaps because most peo-ple would rather not cooperate in an illegality, even at a some-what lower price, if they can have their desires satisfied with complete legality. In any event, it is quite significant that alcohol under license does, and almost certainly marijuana could, command a considerably higher price than would the drug under either criminalization or the vice model.

Though the significance of the ability to tax marijuana ex-tends beyond the provision of revenue, the potential revenue yield should by no means be ignored. Indeed Professor L. J. West, chairman of the Department of Psychiatry of the UCLA Medical School has predicted the "legalization" of marijuana on the ground that "No form of recreation can remain so widespread for long before the government decides to tax it."

In any event not only could the bulk of the law-enforcement and correctional resources (seventy-two million dollars annually by the State of California alone24) that are now devoted to mari-juana enforcement be freed for other uses, but the proceeds of the tax on marijuana could be earmarked for the enforcement of the laws against the more dangerous drugs, for educational programs on the dangers of drug abuse, and for the comparatively expensive therapy required to treat the psychological problems that both cause and result from drug abuse. If these funds which, as a practical matter do not seem to be available elsewhere, could be provided by a tax on licensed marijuana, more would be accomplished toward the solution of the drug problem than would result even from the complete suppression of marijuana, assuming that such suppression were practicable.

The remaining significance of the taxation of marijuana is that, by raising the price of the drug, we may be able to cut down use most in precisely those areas of greatest concern to us. Even though increases in the price of marijuana would, according to classical economic theory, lower the demand for the drug over society in general, it is hard to believe that this influence would be significant for most of the population. It would seem impracticable to tax the drug so harshly that we could put it out of the financial reach of employed adults; an illegal market would spring up far before that point was reached. Nor could the drug be priced so high as to discourage significantly use by our, comparatively affluent generation of college students.

This, however, is not so clear as to high-school students and becomes progressively less so as we move down through junior high school to grade school. As to these students, it may well be that rises in price will result in significant decreases in mari-juana use. This is not to say that price represents a severe con-straint upon all grade-school children or even that most such students will be unable to afford a marijuana cigarette. The fact is, however, that even in our affluent society the bulk of grade-school and junior-high-school and perhaps even high-school stu-dents do not have much money and feel many other demands on the money they do have. The higher the price of marijuana, the less able they would be to smoke the quantities that would be most harmful to their development.

It is not obvious at first glance how a licensing system might raise the price of marijuana to schoolchildren. Assuming that a licensing system would prohibit sale to minors, as does our present alcohol control, the method of raising the price through taxation would not appear applicable. For the very young the choice between legal but more expensive marijuana and illegal but perhaps cheaper marijuana would not exist. For them all marijuana would be illegal. It would, however, be cheaper only if the destruction of the system that illegally markets marijuana to adults would leave intact the present illegal system of distribu-tion to minors. The problem is that there are not two systems of distribution, one for adults and the other for minors. Rather, there is presently one highly complex system in which a large number of different distributors function at the importing, wholesaling, and retailing levels. The only difference in the marketing of the drug to the very young appears to be at the lowest level. There one of the very young usually obtains the drug from his older connec-tion, who typically is a member of the drug culture, and sells to his fellows in small quantities, usually by the cigarette, or "joint," rather than by the lid (ounce) or "nickel bag" (five dollars' worth, or about a quarter of a lid), which would be the most common quantities sold to the wealthier, older users.

Under a licensing system the chances are that the method of retail sale of marijuana to the very young would probably not be very different. They would still get it from their fellows. Rather than imported marijuana, however, the supply of the drug would most likely be "leakage" from legal sales—resales of marijuana legally purchased by adults. For our purposes here, however, the significant thing about these sales is that they would be made only at the higher legal price—and indeed above it by an amount necessary to compensate both the adult and the young connection who illegally resell the drug for the risk of apprehension they must take.

In order to sell at a price lower than this the seller would have to either import the drug himself or take advantage of illegal channels of supply above the retail level. The problem is that, provided the drug is not too heavily taxed, the total illegal market for marijuana will shrink greatly. If the legal price is set so that the only economically profitable illegal sales are those made to the very young, who constitute today only a relatively small share of the market, the rewards of undertaking the entire distribu-tion system just for them will probably not make this worthwhile. Moreover, as the volume of illegal sales shrinks, the risk of apprehension grows, since law-enforcement agencies can then concentrate their efforts on the far smaller percentage of illegal sellers.

Finally, once marijuana may legally be obtained by adults, it is likely that a great deal of amateur enthusiasm for the traffic will cool. As has been pointed out before, a large part of the marijuana traffic, especially at the lower levels but also at all but the most significant levels of importation, is in the hands of amateurs who, though they may make money from their ventures, act in great part from the conviction that the marijuana laws are hypocritical and that they perform a service by making the drug available. Once the marijuana laws cease to be regarded as hypo-critical and the drug is otherwise available, the only nonfinancial reason for amateurs to import marijuana would be to make it more available to the very young—not a particularly popular cause even among those most devoted to the drug.

This is not to say that marijuana will suddenly become un-available to the very young. It is now easily available under criminalization in large and still growing areas of the United States and will continue to be even under a licensing system. The primary difference between the two models would be that where the licens-ing model is adopted, the marijuana available to the very young would be of uniform potency and at a higher price.

Law-enforcement officials have grasped the fact that 'maintenance of high price is a significant method of drug control. Thus in stating the main purpose of Operation Intercept, a massive allo-cation of resources to stop smuggling at the Mexican border:

Deputy Attorney General Richard Kleindienst told a news conference the administration hopes to use the economic law of supply and demand instead of the often harsh criminal narcotics laws to break the campus and youth drug culture.

"We hope to drive the price so high it will be unavailable to students in colleges and high schools .. . who are using it so commonly today."25

The administration, however, has neglected the basic point that any given quantity of law-enforcement effort can more effectively push up the price of a drug if it is combined with a licensing system and taxation than it can by attempting to enforce criminalization.

Moreover, taxation is a much more finely tuned method of controlling price. Mr. Kleindienst's objective, "to make marijuana smoking as expensive as using heroin," has the great disadvantage of exerting no economic incentive against using heroin. In addi-tion, it would create a strong economic push toward using am-phetamines, which are, in general, not imported but either diverted from normal channels of trade or manufactured clandestinely within the United States.

Details of the Licensing Model. In order to discuss further the advantages and disadvantages of the licensing model we must examine the details of its operation somewhat more closely. The decision to institute a licensing system permitting legal sale of marijuana, of course, covers the most basic issue of policy in the area. Nonetheless, there are, very much as in the case of the vice model, a host of other issues. First, we must decide what our definition of marijuana will cover—or, put another way, what degrees of potency we will allow to be handled through the licensing system.

The problem of setting the maximum potency legally salable in a licensing system, however, is not an easy one. Indeed, it is similar'to setting the proper tax on the drug. If the potency is set too high, we will be failing to take full advantage of one of the methods of control inherent in the licensing system, while if the potency is set too low, it will, like too high a tax, attract illegal and uncontrolled sellers into the market.

Indeed, the optimum system might turn out to be highly com-plex—though certainly no more so than in all kinds of other administrative regulation. For instance, we might decide to license the sale of several grades of the drug, using THC content as the measure until some better one is found. Although the highest po-tency available should be potent enough to minimize the use of even-stronger drugs, there is no reason why a user who wishes a weaker drug should not have this option. And perhaps, within this system, differential taxation could exert a push toward the weaker grades—subject, of course, to the major constraint that the tax should not be designed to raise the maximum possible revenue, but rather should be set at the highest practicable level before substantial numbers of illegal operators are enticed into the market.

For those who, despite our attempts to make it unprofitable, do sell outside the licensing system, we must continue to rely on the criminal law. Now, however, provided the tax is properly set, we can be confident that the amount of violation will not be so large as to dilute our law-enforcement effort. The significance of this is that the concentration of law-enforcement effort, as well as the cooperation of legitimate licensed marijuana sellers, can be expected to result in a much higher rate of apprehension. As a result, the penalties for violation of the law need not be so extreme. A five-year maximum penalty would seem quite sufficient to deter those who, among the illegal marijuana sellers, are in fact deter-rable. And if an additional penalty, perhaps of two more years, is felt to be appropriate for the aggravating element of selling to a minor, that is hardly outrageous in the same sense as -are the present penalties in almost all jurisdictions.

Just as in the vice model, we must, in addition, face the issue of whether to criminalize the minor user of marijuana. This is the method we apply in most jurisdictions with respect to alcohol. For the most part it does not cause a great deal of resentment,„since most young people recognize it for what it is, a law not generally enforced in any serious way but kept upon the books for two reasons: first, as a moral admonition not to drink too much at too early an age, an admonition with which they, in theory, agree; and second, as a legal excuse for intervention in those cases where the alcohol use is part of a general pattern leading to delinquency and serious mental-health problems.

Another major issue in the licensing of marijuana sale would be whether the selling should actually be done by private retailers licensed by the state, as alcohol is in most jurisdictions, or whether, as in a minority of states, the intoxicants should be sold under state monopoly. In terms of efficiency the answer probably is that private enterprise could do the marketing job at less cost than the state.

Some factors, however, point toward state ownership. First of all, administrative price fixing would be considerably easier and more flexible than the usual legislative determination as to tax-ation. Second, state operation would prevent the growth of a group of businessmen whose economic interests were tied up with in-creasing sales of marijuana. The lobbying effects of alcohol producers, wholesalers, and retail distributors have been felt in many jurisdictions and have hardly been regarded as healthy.

Moreover, the private marketing of recreational drugs tends to apply pressure upon the public as well. Many of those most offended by the idea of licensing marijuana sale have assumed that this would naturally bring with it large expenditures for advertis-ing. Although once economic interests become strongly involved in this area they are most difficult to dislodge—as efforts to limit cigarette advertising have shown—it is almost universally agreed among experts in the field that the some $200,000,000 a year spent advertising alcohol and the approximately equal amount spent advertising tobacco have contributed considerably to the public-health problems caused by these substances."26

There is no point in repeating with marijuana the grave errors we have made with respect to alcohol and tobacco. The chances are that those who need the drug will use it without having it pushed upon them; there is no good and considerable harm in in-creasing through modern advertising the pressures to use any psychoactive drug. Advertising would, of course, be easier to prevent under a state-run system—though in fact, of course, it need not necessarily follow where private enterprise is licensed.

Similarly, we may be able to profit in other ways from the lessons learned in the regulation of alcohol. It may be that a limit per purchase might be practicable as a method of controlling mari-juana abuse. A system might even be instituted, provided it were not made too onerous, of limiting, by means of ration coupons or the like, the total amount of psychoactive drugs—alcohol in-cluded—purchased by one individual.

Though these issues by no means exhaust those raised in the implementation of a licensing system, they do give a general idea of the technical problems involved. In any event, it is not these technical problems that have caused the ire of opponents of a licensing system.

Arguments Against the Licensing Model. The main prag-matic argument—as distinguished from the symbolic arguments discussed in the first chapter—against a licensing system for mari-juana is that, by making the drug legally available, we will increase its use. This is almost certainly true, though to what extent is not so clear. It may well be that, with the present almost complete availability of marijuana in expanding areas of the nation, those who would be most interested in obtaining the drug can already get it. If marijuana were legally obtainable, at least in those areas the additional number who could purchase it—those presently deterred by the law or those so "straight" as to be unable to find a connection today—would be not only those least likely to abuse the drug, but also those least likely to enjoy the euphoria and feelings of lessened control that the drug produces.

In all probability, then, under a licensing system a much larger number of people will have tried the drug once or twice and then given it up because they did not like its effects; a somewhat larger number will use the drug regularly; and, in most of the nation, the number of marijuana abusers will not increase significantly.

This last assertion is the most important, and while difficult to prove conclusively, it nonetheless is very probably true. First of all, temperance and prohibition are not only two very different concepts, they are often at war with each other. It is far easier to educate people to use liquor "like gentlemen" than to convince them not to use it at all.

Moreover, prohibition is at its least effective in deterring the abuser. Indeed, there is some evidence, though it is hardly con-clusive, that, although Prohibition reduced the use of alcohol somewhat, it had little effect on the amount of drunkenness. For instance, according to a recent U.S. Department of Transportation study, automobile fatalities did not increase at any faster rate after the repeal of Prohibition than during that period.27 If this is so, considering what we know of the effects of alcohol abuse upon automobile fatalities, it strongly suggests that a very high percentage of those who abused alcohol after the repeal of Prohibition did so before.

Further, as was pointed out earlier, there is good reason to believe that many of the new marijuana abusers would come from the ranks of those who would otherwise have abused alcohol.28 In this case, not only would their overall impairment probably be lessened by the switch, but it might well be that, because mari-juana is nonaddicting, many of those who would otherwise abuse alcohol may be able to use marijuana nonabusively.

Finally, even if the increase in the availability of marijuana caused by a licensing system did increase abuse of the drug, this would have to be balanced against the many advantages of a licensing system in reducing in other ways the abuses of marijuana and other drugs.

Use by Minors. With respect to minors, the situation is somewhat different. The availability to minors of marijuana as a result of leakage from a licensing system is certainly a cause for concern, since abuse of marijuana among the very young is a serious problem. There are, however, reasons why the practical availability of marijuana to the young may in many areas be less than at present. As discussed earlier, the leakage from the licens-ing system will be at a price even higher than the legal price, which at least for some will be a serious obstacle to heavy use. And the availability of marijuana can be further decreased by devotion to the problem of leakage to minors of even a small fraction of the law-enforcement resources saved by the institution of the licensing system.

Entirely apart from the price, however, there is reason to be-lieve that the problem of marijuana abuse could better be con-trolled under a licensing system. Of the leakage from the licensing system, a good part would reach minors under adult supervision—the way most alcohol experts recommend that drinking be taught to minimize the dangers of abuse. At least if the information we have on alcohol is any guide, the "forbidden fruit" aspect of a drug adds greatly to the excitement of its use and hence to the dangers of abuse.

Authorities on alcohol report that alcoholism is least likely not among the children of abstainers, but among those who grow up in families where alcohol is used moderately." Under these circumstances children do not feel guilty over their use of the drug, and hence do not drink more to dull their guilt feelings. One would think then that insofar as some "leakage" from a licensing system might be merely parents teaching their children to use a drug moderately, marijuana abuse might be even less likely than as at present, where the typical introduction is made within the peer group under conditions that tend to increase the thrill of doing what their parents are afraid to do.

Finally, if one sees the problem as one of drug abuse rather than merely abuse of marijuana, the issue becomes even more clear. Even if the licensing of marijuana did increase the abuse of that drug by the very young, this would be more than counter-balanced by the reduction in abuse of more dangerous drugs such as amphetamines, barbiturates, LSD, and in some relatively small areas, heroin.

There are a host of reasons for this, most of which are dis-cussed in Chapters VI and VII. First, adoption of a licensing system for marijuana would re-establish the credibility of our drug-education programs. And, further, the role of the illegal use of marijuana as a recruiter into the drug culture would be dis-rupted. Although marijuana would still be illegal for the very young, the indirect effects of reducing the influence of the drug culture on those somewhat older could only be to weaken its attraction for younger people as well.

The "National Tone" Argument. Aside from any increases in the abuse of marijuana that might result from licensing its sale, it has been argued that the most significant danger of such a change in the law is that the widespread "normal" use of the drug would subtly change the "tone" of the nation. By this is meant that even where its effects are short of serious mental or psychological damage to the individual, marijuana has the effect of making its user somewhat more passive. While such an effect would not be classified as mental illness or as even harmful to the individual, the ultimate effect on our society of having a large percentage of the population made more passive could, it is argued, be disastrous.

There are reasons for believing that marijuana can indeed increase passivity. Carstairs, in his study of a village in India, has produced evidence that the use of differing drugs is related to the user's value system. Specifically, he showed that in the village the more contemplative, more passive Brahmins used marijuana while the more aggressive and competitive Rajputs preferred alcohol." Although it may be hard to generalize this to American conditions, the use of marijuana is, as pointed out by McGlothlin, "often as-sociated with the philosophy which denounces the achievement oriented material aspects of Western society."31 Moreover, the normal use of marijuana does involve the achievement of a passive, euphoric state, and it can be argued that simple leaming theory indicates that, insofar as this state is regarded as pleasant, it is likely that its experience on numerous occasions will reinforce passive methods of behavior and, indeed, passive cultural values.

There are, on the other hand, very good reasons to doubt that the legalization of marijuana would make our society substantially more passive. First of all, the group that in recent years has taken most avidly to marijuana, the students at our more elite colleges, have hardly been known of late for their passivity. Moreover, even among those students there is ample evidence to show that the great bulk of the marijuana-users are—measured by their grades—at least as competitive as their fellows.32 It is likely that, rather than inducing passivity, marijuana merely allows those who wish to be passive for entirely personal reasons to use a drug that com-ports with their values. It is unlikely, for instance, that marijuana is any more conducive to passivity than is watching television, or indeed a great many other actions that we typically indulge in as spectators.

Finally, even if marijuana did make our society noticeably less aggressive and competitive, it is hard to state that the limited change of this nature that could be caused by the licensing of marijuana sales would be a national tragedy. Certainly, a great many of, those who have written upon the defects of our society have pointed out that the aggressive, competitive nature of the society has imposed strains on all of its members, leading not only to enormous problems of crime control but of mental illness and widespread alienation as well.

Nor, as we enter what has been called the postindustrial phase, does it seem very real to worry about the decreases in productivity that might be caused by greater passivity. So long as this does not reach the pathological level discussed in Chapter V under the amotivational syndrome, a personality somewhat more passive and contemplative and less competitive might well be more appropriate to the world of the future than is today's personality.

The fact is that the average number of hours worked in our society is decreasing and, as automation gains a foothold, can be expected to decrease for some while at an accelerating rate. The problem of what to do with our leisure will become for more and more of the society a more difficult problem than the problem of how to produce goods. In such an era, it is certainly arguable that marijuana would be a more adaptive drug than alcohol—assuming, as is by no means obvious, that decreases in competitiveness and aggressivity in our culture would follow from the licensing of marijuana use.

The Advantages of the Licensing Model. The disadvantages of the licensing model on examination turn out to be hardly compelling. Its positive advantages in terms of the control of the quality and price of marijuana, though perhaps weightier than the disadvantages, are, by themselves, not enormously impressive. The crucial benefit of the licensing model, however, is in a sense a negative one. It would, in essence, do away with virtually all of the costs of the criminalization of marijuana.

The costs of the licensing system of control can be broken into two categories. First are those flowing from the administration of the licensing scheme—determining a host of variables such as the potency of the product to be sold, the proper tax to be levied, and the proper number and location of the licensees (there is no purpose served by making access to the drug too convenient); deciding among applicants for licenses; and checking on the compliance of the licensees. Second are the social costs of the enforcement of the criminal law—primarily the enforcement and correctional resources devoted to apprehension and punishment of those who sell outside the licensing system.

Note how trivial these costs are compared with the costs of our present system detailed not only in Chapter II but peripherally throughout the rest of this book.

By adopting a licensing system, we will have asserted ex-plicitly that both alcohol and marijuana are of approximately equal dangerousness. Though marijuana partisans might argue that this is a slander upon their drug, it is hard to believe that they can either generate great outrage over this or destroy the credibility of education as to more dangerous drugs. No longer could the young point to the differences between our treatment of alcohol and mari-juana as an example of the older generation's hypocrisy or as an example of the unresponsiveness of the political process to the needs of at least their segment of the population. We would then have adopted a rational and, perhaps more importantly, fair method of dealing with their drug.

Finally, once the issue of the proper legal treatment of marijuana is settled, we can move on to much more important prob-lems. Having brought the problem out into the open we can begin to work out methods of treatment for those who are abusing the drug; we can begin to collect information on use patterns and a host of other variables that can better enable us to educate as well as treat drug-users; and we can ask fundamental questions such as what is there about our society that makes so many of its members turn to drugs.

Summary

Once it is concluded that the total criminalization of marijuana is unjustifiable, we must determine what society's pos-ture toward marijuana ought to be.

Simply removing all control from marijuana use is not satis-factory, since society still has some interest in minimizing, so far as practicable, abuse of marijuana. Alcohol and tobacco are presently controlled—though by an essentially noncriminal system —and the question as to marijuana is not whether to control the drug but how to do so.

Under the "vice" model the selling of marijuana would remain criminal, but not the use and hence the small-scale possession of the drug. This model is now widely in use for dealing with prob-lems such as prostitution, gambling, and abortion. The argument for accepting this model is that it allows society to restrict the supply of the illegal commodity at a much lower cost than that attendant upon criminalizing all users as well as sellers.

The model itself leaves many subsidiary questions open. These include whether to treat other forms of the drug in the same way as we do the natural plant substance, the proper penalty struc-ture, whether any furnishing of the drug or merely sale should be criminal, whether even extremely small-scale sale "by amateurs" should be criminal, and the legal posture society should take when minors are involved.

There are arguments against implementation of the "vice" model. The first is that it is inconsistent to punish the seller but not the buyer. The same practicality, however, which overrules symmetry in the case of gambling, prostitution, or abortion, is equally applicable with respect to marijuana.

The second argument against decriminalization of possession and use of the drug is that this would condone use of the drug. However, the mere removal of the criminal sanction from any activity does not necessarily imply societal approval of that activ-ity, and this is particularly true when sale of marijuana remains illegal.

Another argument that the "vice" model is not strict enough is that the lack of deterrence of marijuana use would increase the use of the drug. There are two answers to this argument. The first is that the present laws have comparatively little deterrent effect on users as it is, and thus repeal would not lead to a really sig-nificant increase in use so long as the supply is limited by criminalization of sale. The second is that those who are deterred by the present laws are those who would be least likely to misuse the drug if the laws were repealed, since they are by hypotheses more cautious and future-oriented than those who are currently not deterred. For both reasons, the dangers of increased usage caused by the adoption of the vice model are not so great as might be thought.

The final argument against the "vice" model by those who espouse the current system is that police departments will be deprived of an important source of information on sellers if they cannot arrest and obtain information and assistance from mari-juana-users. Police, however, obtain very little information or help from arrested users, and what little they do receive is obtained at the cost of alienating users from a society that seems to put a positive value on disloyalty.

The more weighty arguments against the "vice" model are that it does not go far enough. To the extent that the supply of marijuana is restricted, we may be inducing users to switch to more dangerous but more available drugs. Amateur selling may be curtailed, since users will no longer be inclined to sell on the rationale that they are criminals anyway, but this merely means that the way will be better opened for organized crime. Also, criminalization of all sales makes societal control of the drug's quality impossible and creates an underground market that can be used to distribute other more harmful drugs.

Finally, although the difficulties in drug education caused by criminalization of marijuana might be somewhat reduced, the dis-parity in treatment between alcohol and marijuana would remain to plague the credibility of efforts to educate youth on the dangers of other drugs.

If the "vice" model is rejected, we are left with the medical model and the "licensing" model. Under the medical model mari-juana would be classified as a mild sedative obtainable under a doctor's prescription.

The argument against the medical model is that it would not induce a large enough percentage of the marijuana traffic into legal channels to avoid the costs of criminalizing the nonmedical traffic in the drug. Many doctors are unlikely to be willing to prescribe a drug for recreational purposes—that is, because the patient enjoys its effect—and even if doctors would be willing to do so, the demand would far outrun their time available for that purpose.

Rejecting the medical model because of the practical diffi-culties involved, we are left with the "licensing" model. Under this model, marijuana would be sold essentially the way alcohol is sold, by licensed dealers selling without impediment as long as certain conditions are met. Unlicensed sale would be criminal. The advantage of this model is that it allows about all the control society is able to impose while minimizing the costs attributable to that control. A licensing system could impose standards of purity and potency while, within limits, the price could be con-trolled through taxation. Such taxation could serve the dual pur-pose of providing revenue for use in combating the drug problem generally, and perhaps placing the cost of marijuana itself beyond the means of many young children now able to obtain the drug. Direct sales to minors could be controlled by regulations such as we now impose on alcohol sales. Licensing the sale of marijuana in this way might also have the desired effect of restricting the underground drug market that today makes available, and even encourages, the use of drugs far more harmful than marijuana.

One of the arguments against the "licensing" model is that it will lead to increased use of the drug. This is probably true, but some significant increase in use is inevitable, at least if present trends are any guide. Moreover, as shown in Chapter V, even abuse of marijuana, for all except the very young, is not nearly so harmful as has been alleged. The additional damage done by making marijuana more available will almost certainly be miti-gated both because those who have been deterred in the past are those who are least likely to damage themselves with the drug, and because a sizable percentage of marijuana-users will be drawn from the ranks of those who presently use alcohol.

Another argument, that a licensing system will make mari-juana more available to minors than it is today, is by no means obviously correct. True, the availability of marijuana to the very young will be a serious problem under a licensing system. But it is that today under criminalization. Under licensing, at least the price of the drug to minors will be higher than it is today because of the taxes mentioned earlier; second, far more law-enforcement energy will be available to choke off illicit sales to minors; and finally, the likelihood of abuse of the drug by minors will be lessened since a certain amount of the use resulting from leakage to minors from the licensed sales will be subject to adult super-vision, as is recommended in the case of alcohol today.

Finally, it might be argued that the licensing of marijuana sale would make our nation noticeably more passive, more contempla-tive, and less competitive. It is by no means clear that this would be so; indeed, the evidence in favor of this proposition is extremely flimsy. Moreover, many of the commentators who have discussed the ills of our society have suggested that changes in just these directions would be the most beneficial for the welfare of our society and of the individuals that make it up.

Giving these "disadvantages" their due, they are outweighed by the key advantage of the licensing system—that it does away with essentially all of the costs of the criminalization of marijuana discussed throughout this book.

NOTES

1. Illinois Revised Statutes, Chapter 38, sec. 11-7; see also Uni-versity of Cincinnati Law Review, Vol. 35, p. 240; University of Colorado Law Review, Vol. 40, p. 221; Michigan Revised Crim-inal Code, Final Draft, Sept., 1967.
2. McKinney's Consolidated Laws of New York, Book 3, Alcohol Beverage Control Law; West's Annotated California Codes, Busi-ness and Professions Code 23000 ff.
3. McKinney's Consolidated Laws of New York, Book 39, Penal Law, sec. 225.00–.40 (Gambling); West's Annotated California Codes, Penal (Prostitution) ; Smith-Hurd, Illinois Annotated Statutes, Chapter 38, sec. 23 (Abortion).
4. See, e.g., "Possession of Marijuana in San Mateo County, Cali-fornia: Some Social Costs of Criminalization," Stanford Law Review, Vol. 22,1969.
5. Mandel, J., "Myths and Realities of Marijuana Pushing," in Mari-juana Myths and Realities, J. L. Simmons, ed. (North Hollywood: Brandon House, 1967), pp. 78-84.
6. McKinney's Consolidated Laws of New York, Annotated, Book 39, Penal Law, sec. 220.10, .15, .20.
7. See "Marijuana Laws: An Empirical Study of Enforcement and Administration in Los Angeles County," U.C.L.A. Law Review, Vol. 15,1968, pp. 1549-50.
8. Alcohol and Highway Safety: A Report to the Congress from the Secretary of Transportation, U.S. Department of Transportation, Aug., 1968, p. 76.
9. Plaut, Thomas, Alcohol Problems—A Report to the Nation by the Cooperative Commission on the Study of Alcoholism (New York: Oxford University Press, 1967), p. 149.
10. Lotria, Donald B., The Drug Scene (New York: McGraw-Hill, 1968), p. 121.
11. See Mandel, J., "Problems with Official Drug Statisties," Stanford Law Review, Vol. 21,1969, p. 1029.
12. Eells, Kenneth, "Marijuana and LSD: A Survey of One College Campus," Journal of Counselling Psychology, Vol. 15, No. 5, 1968f p. 466.
13. Green, Ellen, and Blumberg, Bruce, "Boalt Hall Survey: Casing the Joint," (1969).
14. Keeler, Martin H., "Motivation for Marijuana Use a Correlate of Adverse Reaction," American Journal of Psychiatry, Vol. 125, 1968, p. 389.
15. McGlothlin, William H., and West, Louis J., "The Marijuana Prob-lem: An Overview," American Journal of Psychiatry, Vol. 125, 1968, p. 370.
16. Steffenhagen, Ronald A., and Leahy, Patrick J., "A Study of Drug Use Patterns of High School Students in the State of Vermont" (1969).
17. Cf. Bloomquist, Edward R., "What Makes Teens Try Dope?" Parents' Magazine, Vol. 35, Feb., 1960, p. 44.
18. Schneider, Robert A., "Arrestee Informants: Their Importance in the Enforcement of Marijuana Laws" (1969), pp. 18-19.
19. See "Marijuana Laws," p. 1528.
20. Sinclair, Andrew, Prohibition: The Era of Excess, (Boston: Little. Brown, 1962), p. 410.
21. Ibid., p. 201.
22. "Marijuana and Society," statement by Council on Mental Health and Committee on Alcoholism and Drug Dependence of the American Medical Association, reprinted in the Journal of the American Medical Association, June 23, 1968, p. 91.
23. The New York Times, Sept. 13, 1968, p. 2.
24. Calof, L., "The Financial Cost of Enforcing the Marijuana Laws" (1968).
25. San Francisco Examiner, Sept. 14, 1969, p. 1.
26. Fort, Joel, "Social and Legal Response to Pleasure-giving Drugs," in Utopiates, Richard Blum and Associates, eds. (New York: Atherton Press, 1964), p. 209.
27. Akohol and Highway Safety, p. 75.
28. See Smith, David, "Acute and Chronic Toxicity of Marijuana," Journal of Psychedelic Drugs, Vol. 2, Issue 1, 1969, p. 43.
29. Kessel, N., and Walton, H., Alcoholism (London: Penguin Books, 1967), p. 73.
30. Carstairs, C. M., "Daru and Bhang: Cultural Factors in the Choice of Intoxicant," Quarterly Journal of Studies of Alcohol, Vol. 15, 1954, pp. 230-37.
31. McGlothlin, William, "Social and Cultural Aspects of Hallucino-gens," 1969.
32. Johnson, Roswell D., "Some Observations on Drug Use and College Productivity," speech delivered at the panel on Student Drug ,Use in the School and College Admission Counsellors An-nual Conference, New York City, September 26, 1968. Dr. John-son is Director of Health Services at Brown University and Pem-broke College.