If, as the previous chapter contends, the licensing model achieves the most favorable balance between the benefits and costs of marijuana control, it is natural to ask whether any valid reasons exist why a state should not enact such a system. Keeping in mind the symbolic aspects of marijuana discussed in Chapter I, we will first concentrate our attention on the reasons publicly urged by the supporters of marijuana criminalization and by others seeking to justify their unwillingness to change substantially the status quo.

Legal Obstacles

First, there is the argument frequently made by proponents of our present marijuana policy that the legal obstacles —federal law and our international commitments—render it purely academic to discuss the adoption of a state marijuana-licensing system. In fact, however, the legal obstacles are only temporary, though, of course, they are the result of forces that will have to yield before any rational solution of the marijuana problem can be achieved.

Federal Law

The most obvious legal obstacle in the way of a state de-cision to adopt the licensing model is our federal law. As a prac-tical matter, it bans under serious penalty not only importation of marijuana but the sale and even the possession of the drug.i It is not clear whether the state legislature that passed a licensing provision would violate the federal provisions, but it would be extremely difficult to find an administrative official willing to imple-ment the licensing law. Not only would all the sales by the Licensed sellers be serious crimes under federal law, but the chances are that the official himself would probably be guilty of aiding and abetting these violations.

On the other hand, although federal law would prevent any licensing system, it would not inhibit a state from adopting the vice model. Those who possessed marijuana would still violate federal law, of course, but as a practical matter, this would not be significant. The federal enforcement arm simply does not have anything like the kind of manpower necessary to attempt even minimal enforcement of a marijuana-possession statute.

There were, in 1969 in the State of California, only ninety-seven federal drug- enforcement personnel2 who had jurisdiction over a host of substances, such as heroin and amphetamines, that dearly take priority over marijuana.3 In 1968 the 337 federal arrests in California for marijuana violations—the great ma-jority of which were for importing and sale offenses—numbered approximately 1/150th of the number of arrests (most of which were for possession) by state officials.4 Moreover, a state hindered by federal law from establishing a licensing system might well decide that no control at all would be better than trying to enforce the vice model. In this case, the enforcement effort required of federal officials would be even more out of proportion to their available manpower.

The chances are, however, that things would not come to this.

If the political consensus in any state became sufficient to adopt a licensing system, a nationwide change of attitude would, most likely, be under way. In such a case, even though the pressure for change might not be sufficient to force the federal authorities to withdraw completely from the field, the arguments for the right of a state to experiment with solutions to this nationwide problem might carry the day. The federal law then might be changed so as to exempt from criminal penalties the possession, sale, and importation of marijuana pursuant to a state licensing system.

The Single Convention

The other "legal" argument against the adoption of a marijuana-licensing system is that this course is forbidden by our international commitments. It is true that our one international agreement in this area, the Single Convention on Narcotic Drugs, 1961, ratified in 1967 by the United States, obligates the federal government to prevent the importation of marijuana and to pass statutes that would make the adoption of a licensing system by any state impossible.5 Indeed, anyone reading the Single Convention on Narcotic Drugs might well conclude that a major purpose of the entire treaty was to make sure that the federal marijuana laws were not relaxed. The section on marijuana was proposed by the United States delegation headed by U.S. Commissioner of Narcotics Harry J. Anslinger, who, after the treaty was ratified, announced, "We've got [the marijuana laws] locked up so tightly now they'll never change the law." 6

In view of this confident assertion, it is all the more surpris-ing that a dose look at the document shows that it is no more of an obstacle to a licensing system for marijuana than is present federal law. The convention specifically provides that a signatory may terminate its adherence at any time more than two years from "the date of coming into force of this convention."7

Nor would such an action be in any way at odds with our obligations under international law. Treaties often have such clauses, and the United States has on several occasions taken advantage of such provisions in other treaties—an action very different from renouncing a treaty that contains no such escape clause.8 Since the Single Convention of 1961 is terminable at will —and more simply even than is federal law—it will yield to what-ever consensus impels the removal of the federal restrictions.

The "Premature" Arguments

The next set of arguments against adopting a licensing system for marijuana—or, for that matter, against any proposal to relax the criminalization of marijuana—are variations on the theme that such an action would be premature. The argument is that though at present the costs of criminalization may seem out of line with its benefits, something in the future will happen either to lower these costs or to make it apparent that the benefits of our present marijuana laws are greater than they appear.

There are three ways in which the costs of the marijuana laws might be reduced without a basic change in the policy of criminalization: first, the enforcement of the law might suddenly become a great deal more successful at drying up the supply of marijuana; second, the enforcement of the marijuana law's might become progressively less successful until we reach a situation where the marijuana laws, like our laws against adultery and various types of sexual behavior, become for all practical purposes dead letters and hence involve relatively little in the way of costs; and third, regardless of whether any change in enforcement talces pint, the public taste might change and the popularity of marijuana decline as fast as it has risen.

Successful Enforcement

The first of these possibilities requires law enforcement so successful as to make marijuana unavailable. Though for many this would be the optimum solution of the marijuana problem, our past experience does not offer a great deal of encouragement.

Such successful enforcement of the marijuana laws could occur at three different levels: within the United States, at the nation's borders, and in foreign countries where most of our marijuana is cultivated.

Within the United States. First, within the United States one could conceive of a law-enforcement system so effective that possession and, more particularly, sale of marijuana would stand such a high risk of detection that even the most optimistic individual would be deterred from involvement in marijuana. The same in theory was true of Prohibition, but then, as now, the price, both in terms of the vast increase in the number of police devoted to the task and the considerable shrinkage in our civil liberties, is too great.

If the police had sufficient manpower and were permitted to search where they wanted without probable cause, to pressure suspected users into giving full accounts of themselves and their friends, and to utilize means of entrapment that are presently forbidden, it would indeed be possible to dry up the marijuana supply. The only practical possibility that this might happen, however, would be as a by-product of a police state. It is no coincidence that totalitarian societies have no serious drug problem. In anything like our present society, successful enforcement of the marijuana laws would entail costs so high that almost no one would consider them worthwhile.

In the absence of conspicuously better enforcement one would have to pin one's hopes merely on more stringent penalties for those who are actually caught. The demonstration that this is ineffective has been made on many occasions. If one examines a graph comparing the penalties for marijuana violations in many jurisdictions together with the number of violations reported, one finds both curves sloping sharply upward. One commentator has pointed out that:

When it became certain [during Prohibition] that existing controls were inadequate to assure obedience, extremists merely advocated weightier sanctions.

One woman suggested that liquor law violators should be hung by the tongue beneath an airplane and carried over the United States. Another suggested that the government should distribute poison liquor through the bootleggers; she admitted that several hundred thousand Americans would die, but she thought that this cost was worth the proper enforcement of the dry law. Others wanted to deport all aliens, exclude wets from all churches, force bootleggers to go to church every Sunday, forbid drinkers to marry, torture or whip or brand or sterilize or tattoo drinkers, place offenders in bottle-shaped cages in public squares, make them swallow two ounces of castor oil, and even execute the consumers of alcohol and their posterity to the fourth generation. . .

Actual penalties were perhaps sufficiently severe.

In 1929 Mrs. Etta Mae Miller was convicted of having sold a quart of liquor. As this was her fourth such offense, she was sentenced to life imprisonment as an habitual criminal. The Gen-eral Secretary of the Board of Temperance, Prohibition and Public Morals stated: "Our only regret is that the woman was not sentenced to life imprisonment before her ten children were born. When one has violated the Constitution four times, he or she should be segregated from society to prevent the production of subnormal offsprings."9

Moreover, the movement to increase the penalties for mari-juana violations seems to have spent most of its force. The trend, if anything, is in the opposite direction. The problem, however, is that while increased penalties do not help control marijuana, neither, of course, do lesser penalties. As pointed out earlier, lesser penalties do have the effect of reducing somewhat the felt absurdity of the law and avoiding the occasional shocking sentence. For the most part, however, they do not appreciably improve or worsen the situation.

At the Borders. The second possibility of successful enforcement of the marijuana laws is somewhat more practicable—or at least less frightening to contemplate. It would involve sealing the borders of the United States to the entry of the drug by means of careful search of everyone entering the United States. Indeed, it might even be argued that if agents could for any length of time intercept fifty percent of the marijuana coming in, importation would be so discouraged that higher rates of success would not be necessary. The big problem with this is that as a society we are not prepared for an appreciable period either to spend the amount of police resources that this would take or to cause the personal inconvenience and indignity to each traveler that a thorough search of his luggage and his car would entail. The problem is the sheer numbers of people crossing the borders of the United States. The total number of border crossings made into the United States in fiscal year 1968 amounted to an astounding 230 millions,'° a number not only greater than the total population of the United States but one increasing a great deal faster as well.

Nor is it practically possible to police thoroughly even the Mexican border over which most of our marijuana now comes. Two years before the shortlived Operation Intercept, David Acheson, then special assistant to the Secretary of the Treasury, had told a Congressional committee:

Every day at San Ysidro (opposite Tijuana, Mexico) [where 1965 border crossings numbered 22.6 million] there is the usual daily traffic jam—twice a day. And if the customs inspectors took as long as—well, took as brief a time as 10 minutes to inspect each car that came through, they have told me that they calculate the traffic jam would back up for about 22 miles».

Despite this, in September of 1969 the administration launched Operation Intercept involving the "sealing off of the border to drugs." On the first day between 2:30 P.M. and mid-night, according to an "Intercept spokesman," 106,563 vehicles and 308,584 passengers were searched,12 and as predicted, enormous traffic jams ensued all along the border.13

The purpose of this operation was twofold: first, to so diminish the flow of marijuana into the United States that the drug would, be unobtainable except at an extremely high price; and second, and probably more important, to exert pressure upon Mexico to move against the cultivation of marijuana within its borders. Enforcement agents admitted that the operation amounted to "limited economic sanctions against México,"" and one stated:

That country is paying dearly for its failure to move against major marijuana suppliers.. . . Expenditures by U.S. tourists and com-muting customers have dropped from 50 to 70 percent below normal, we are informed from the Mexican side, and they will drop further as the squeeze continues.15

Predictably, protests arose from Mexico. Businessmen and labor officials charged that the operation was turning border cities into "ghost towns"16 and Gustavo Diaz Ordaz, President of Mexico, referring to the operation, stated that "a bureaucratic error [had raised] a wall of suspicion" between the United States and Mexico.17

Then, after less than three weeks of the operation, the Mexican protests seemed to have had their effect. Only two days after it was revealed that "the Mexican delegation had asked for cancellation or drastic modification of Operation Intercept and had been advised that this was out of the question,18 Operation Intercept was superseded by Operation Cooperation. A joint statement asserted that "the U. S. would adjust its borders to elim-inate unnecessary inconvenience, delay, and irritations.19 In case the meaning of the decision was not clear enough from this statement or from the headline "U. S. Retreats on Border Dope War,"20 the point was underlined by the fact that federal law-enforcement officials refused any comment because they were "too sick to talk about it."21

Operation Intercept did not last long enough to prove whether or not, political considerations aside, it would have worked. During the first two-thirds of its operation, it resulted in forty-four smuggling arrests out of 2.8 million automobile passengers and 1.7 million pedestrians searched,22 but these figures do not tell the whole story. Most smugglers, assuming that the operation could not last, simply took a vacation,23 and hence the marijuana traffic was reduced far more than the total of arrests or the below-normal customs seizures would indicate.

On the other hand, there are all sorts of weaknesses inherent in any attempt to seal off the Mexican borders to marijuana. First of all, unless similar steps are taken at all ports of entry, Vans-shipment via other countries becomes economically feasible. Indeed, shortly after Operation Intercept began, hashish from Pakistan, which has been fairly easily obtainable in London, came in very short supply. It is hard to verify the reason, but the report was that patterns of distribution were being adjusted to meet the new American market.

Second, the enormous loads of fresh fruit and vegetables and other freight transported across the border represent an avenue for smugglers far more difficult either to detect or to deter than simple searches of automobiles or persons.

Third, even policing at the legal border crossing points is not sufficient; protecting the vast areas of barren border country from smuggling is an enormous task, especially since smugglers can make use of vehicles equipped to move without roads and of low-flying airplanes that can escape detection by radar.

Finally, as efforts to detect smuggled marijuana improve, two self-correcting mechanisms appear that tend to negate any progress law enforcement might make. First, insofar as smugglers are deterred from entering the market, or large amounts of the drug are seized, the law of supply and demand increases prices and hence profits for those who take the risk. This, in turn, entices more, or at least better-organized, smugglers to enter the field and to import more marijuana. Second, the more the means of detection of marijuana smuggling improve, the greater the induce-ment for smugglers to shift to hashish, a far more concealable product. At present, it is believed that what hashish is found in the United States originates in Morocco, Lebanon, Nepal, Afghan-istan, and Pakistan, but not to any extent in Mexico, the source of most of our marijuana. Should enforcement at the border become considerably more efficient, it would then pay Mexican marijuana producers to go to the extra trouble of refining the marijuana into hashish. This would not only negate a great part of any improvement in enforcement at the border, but also, at least in the opinion of some observers, would increase the dangers of the drug consumed in the United States.

In Foreign Countries. The final hope that the marijuana supply can be dried up rests on the belief that foreign countries—most notably Mexico—will be moved to substantially restrict the cultivation of marijuana. Certainly this would be the most practicable and least costly of the methods for suppressing marijuana. Marijuana cultivation is far easier to discover than is marijuana possession or smuggling, and once the cultivation has been discovered, it is, technically, a relatively easy matter to destroy it. We have read of napalm raids on Mexican marijuana fields, and according to a recent news release, high officials of the Depart-ment of Justice were "awestruck at the sophisticated scientific de-vices and methods that may be brought to play in the future."24

According to the dispatch,

The United States has authored the use of sophisticated aerial apparatus that can detect marijuana from scout aircraft thousands of feet in the air. [And that there is a] substance that can be sprayed on marijuana from helicopters which . . . makes the marijuana so foul tasting that it is unsmokable and that just a puff or two produces uncontrollable vomiting that not even the most dedicated smoker could ignore.25

It is, of course, possible that this time our reliance upon gadgetry will be justified and that our efforts at defoliation will be successful —although the same dispatch admitted that "the marijuana grow-ers are getting more scientific" too.

The fact is, however, that the political obstacles toward any such solution are far more serious than the technological ones. Our government has been trying for many years to induce Mexico to destroy its marijuana fields. By and large, however, the Mexicans have felt that marijuana is our problem and that they have considerably more important problems to cope with.

It is unlikely that pressure such as Operation Intercept will make them change their views on this, and cooperation given under such duress can hardly be expected to be effective, Moreover, even if the Mexican government could be induced to put their fullest, most ungrudging efforts into extirpating marijuana, the marijuana problem would be by no means solved. First, there are the technical problems of finding marijuana cultivated in iso-lated mountain areas far from roads; second, there are the political problems involved in getting the lower-echelon police to cooperate in the search when their political—and one might add, financial—interest is to the contrary; and third, there is the problem that Mexico is not the only country that can grow enough marijuana to supply the United States' needs. Should Mexico withdraw from the business, its place may be taken, without vastly less efficiency, by any one of a dozen other nations.2°

Finally, even if either enforcement at the borders or in foreign nations becomes so successful as to reduce materially the importa-tion of marijuana, there is one source of supply that has not yet received significant attention either from law-enforcement officials or from the marijuana-using population. Observers of our Prohibition experience have commented that for some while it was at least a theoretical possibility that Prohibition might be enforceable. At that time the major supplies of illegal alcohol in the United States were obtained either through diversions of industrial alcohol or by smuggling." Then the technique of relatively small-scale distilling in private homes became widespread, and from that time on it was not even a theoretical possibility that Prohibition might be enforced with anything like the available manpower and within our system of constitutional guarantees.

The point of all this is that high-potency marijuana too can be produced anywhere in the United States within a private home without reliance upon sunlight and hence free from prying eyes—and at comparatively little expense. So far, the easy availability of marijuana and the relative newness of the technology has made this unnecessary. If, however, marijuana becomes significantly less available for longer than the previously experienced "summer droughts," this method of production may well become wide-spread. As an indication of the potentiality of basement cultivation, it should be noted that in England a hydroponic outfit "small enough to put in a standard private garage" and selling for less than one thousand dollars can produce over four hundred tons of cattle food per year.28 Even if the efficiency of such units were vastly reduced because of the large size of the marijuana plant or the necessity of using homemade equipment, it is clear that basement cultivation is an alternative source of vast quantities of marijuana—merely awaiting a sharp drop in the present availability of the drug.

Less Enforcement

The second of the arguments that no major change is neces-sary in our marijuana policy is one not typically raised by pro-ponents, of marijuana criminalization, though one occasionally hears it in confidence from legislators who seek reasons for not changing the present laws. It is that the marijuana laws are on their way to becoming less and less enforced and that they will gradually become dead letters. It is true that even though arrests for marijuana violations have risen sharply, the number of users has increased even faster so that the chance that a given user will be arrested has declined in recent years. Moreover, both the per-centage of those arrested who are convicted and the percentage of those convicted who are actually incarcerated have also declined. In California in 1968 thirty-five percent of those arrested for marijuana possession were convicted and of these sixty-two percent were incarcerated.29

This trend, however, cannot be expected to result in a situa-tion where our marijuana laws cause no more inconvenience than our laws against adultery or other consensual sexual conduct. One difference is that the crimes such as adultery take place in private and hence proof of guilt in any number of cases would require expenditure of vast amounts of police resources. Very often, how-ever, police discover marijuana possession with very little effort. Often young people, arrested or searched on other grounds, are found in possession of a marijuana cigarette. It would take a great deal of restraint on the part of the police and prosecutorial authorities to neglect this crime and prosecute only on the original grounds for arrest, which might not only be less serious but more difficult to prove. Moreover, so long as the marijuana laws are on the books and many users of the drug are "troublesome," the police authorities will be under constant temptation to use the marijuana laws as a "handle" to control certain types of behavior that are not reached by the law.

Finally, though it is conceivable that with relatively little change in the written law, the consumer of marijuana would enjoy practical immunity from punishment, there is no sign that our laws against marijuana trafficking are falling into desuetude. In such a case the situation would, at most, amount to a de facto adoption of the vice model with all its disadvantages.

Constitutional Attack. Related to the hope that the costs of the marijuana laws will simply fade away from lack of enforce-ment is a somewhat different but perhaps more realistic possibility. It may be argued that the courts, by holding the marijuana laws unconstitutional, will relieve the political processes of the difficult problem of grappling with the subject. Indeed, the marijuana laws have been frontally challenged on a host of grounds—though for the most part in lower courts where the cases have not attracted a great deal of attention.30

These attacks have been as varied as legal imagination could devise. They have included challenges on the theory that, consider-ing their respective dangers, the gross disparity in the treatment accorded alcohol and marijuana amounts to an unconstitutional classification in violation of the equal-protection clause of the Fourteenth Amendment; that the relatively minor dangers of marijuana make its treatment through criminalization so arbitrary and unreasonable as to contravene the due process clause of the Fourteenth Amendment; and that, considering the religious aspect which some claim for marijuana use, the factual basis of its criminalization is so weak as to make criminalization violative of the free exercise of religion clause of the First Amendment.

In addition, specific Supreme Court decisions are relied upon in an attempt to invalidate large sections of the marijuana laws. Thus the Supreme Court decision putting beyond legislative pro-hibition the possession of pornography in the privacy of one's own home" has been cited as extending the same protection to the similar possession and use of marijuana.

Indeed, words and principles to support the constitutional attack can be extracted from the language of the Constitution itself and from Supreme Court decisions interpreting this language. The problem is that similar words and principles may be found on the other side as well.

In deciding such issues the courts would be influenced by the fact that the line between what the legislature does wrongly and what it does unconstitutionally is still a broad one. Even a court convinced that the criminalization of marijuana was a tragic mistake might well decide that this is just the type of mistake that our political bodies are entitled to make without interference from the judiciary.

A court might also consider the fact that marijuana is not completely innocuous and that, though it might strike down a criminal law, it could not set up a licensing system in its place.

Finally, the passions stirred up by the symbolic aspects of the marijuana laws make it an area where all but the most ad-venturous judges will decide to give the legislature a maximum of leeway.

This is not to say that constitutional attacks will have no effect on the criminalization of marijuana. Large sections of the federal marijuana laws have already been held unconstitutional by the Supreme Court on self-incrimination and other grounds unrelated to the advantages or disadvantages of our present mari juana policy.                                       

Moreover, the courts will be asked on many occasions to weigh whether aspects of the marijuana laws, and police action to enforce the laws, meet constitutional standards. It is likely, of course, that in doing so the courts will realize that the case for criminalizing marijuana is, to say the least, not a strong one. This cannot help but affect their views on issues involving the rights to privacy of suspected marijuana offenders or on whether the occasional fifteen-year sentence for small-scale marijuana posses-sion constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.

Changes in the Demand for Marijuana

The last of the arguments that the costs of our marijuana policy may be reduced without a major change in the laws rests upon the prediction that the drug will fall out of favor with its users. Stanley Yolles, director of the National Institute of Mental Health, expressed this hope several years ago when he likened marijuana use to the fad of goldfish swallowing.32

It is, of course, theoretically possible that marijuana use will decline simply because of a change in the popular taste-. Most likely, however, this would occur because of the discovery of a new drug that better meets the needs satisfied by marijuana. If so, any drop in marijuana use would probably be without satis-faction to the advocates of marijuana criminalization. The chances are, then, that we would have the same problems controlling the new drug.

In the absence of such a discovery, however, it is unlikely that marijuana-users will either give up their drug or stop recruit-ing new users. The problem is that, as discussed in Chapter III, marijuana to a great extent meets the needs of its users. For them it is a "good product" and they show no signs of being ready to give it up.

Another possible cause of a sharp decrease in marijuana use would be the discovery of some danger in the drug that is not yet appreciated by its users. It is conceivable that some as yet unexpected harm may be found to flow from marijuana use that will have as drastic an effect on marijuana use as the reports of chromosomal damage have had on that of LSD. Interestingly enough, it can be argued that one of the costs of our criminalization of marijuana is the lessening of the likelihood of this. If indeed the adverse effects of marijuana are far more serious than we presently have reason to believe, the criminalization of the drug will make it much more difficult for us both to find this out and to communicate the information to marijuana-users.

Two of the most important ways we uncover reasonably precise information as to the long-term dangers of a drug are, first, to examine carefully the using and nonusing populations to determine whether they differ in any significant respects that may be traced to marijuana use; and second, to follow up any hints we have gained through this by tracing carefully matched samples of users and nonusers over a long period. The problem is, of course, that criminalization interferes with both of these techniques, since many marijuana-users, specially among adults, find it more prudent to avoid acknowledging their use of the drug. As pointed out by Professor Helen Nowlis, president of the National Coordi-nating Council for Drug Abuse Education, in October of 1969,

Two ambitious nationwide surveys now getting underway under grants from NIMH are facing as one of their major prob-lems finding techniques to persuade and indeed to guarantee students that their identities cannot be traced. It requires measures Worthy of those who guard our nation's top secrets. This makes it almost impossible to do follow-up studies which require checking the same individuals over a period of time.33

If one truly believes, as is commonly asserted, that the solution to the drug abuse problem is education, not law enforcement, one should weigh quite heavily the interference with gaining the information on which education must be based.

Probably more significant is the fact that even if we did secure information showing increased dangers in marijuana use, it would be very difficult in the context of criminalization to convince the young of this. After all, they are familiar with the flimsiness of the past allegations of the dangers of marijuana and the tendency to come up with a new one just as the last one is being destroyed. It is likely that so long as we maintain criminalization, education will be suspected of being the servant of law enforcement and, right or wrong, it will be ineffective.

The final difficulty with any hope that future research will convince marijuana-users that the drug is too dangerous is simply that our present knowledge of marijuana is sufficient to make this quite unlikely. It may be that the harmfulness of heavy and continuous marijuana use may be conclusively shown in the future, but it is no more likely that any serious and dramatic dangers will be shown in the occasional and moderate use of most users than will be shown in a host of other substances freely used in our society today.

The Need for More Research. A variant on the possibility that new dangers may be discovered in marijuana use is probably the most often heard of all the arguments against any present liber-alization of the marijuana laws—that we should make no change in the marijuana laws until we have more research on the drug. In this context calls for more research are, for the most part, calls to do nothing (aside perhaps from reducing the penalties somewhat) until the results of that research are in. It is important, therefore, to analyze exactly what effect such research could have on our marijuana policy.

First of all, the only way research could possibly alter the present imbalance between the costs and benefits of the marijuana laws would be to change one or the other of these two variables. Research could decrease the costs of our marijuana laws only by inducing users not to use the drug—a possibility we have just considered and found to be most unlikely.

The other variable—the felt benefits of the law—is obviously more subject to change, perhaps because under present research the benefits of today's law are so small. The hoped-for result of research would then be that marijuana would be shown far more harmful than it presently appears and hence the benefits of criminalisation in lowering its use would be increased. The problem is that just as it would take a very dramatic and unexpected dis-covery to lower the demand for the drug among its users, it would take an even greater surprise to bring the felt benefits of the law into bgance with its costs.

Moreover, research on such topics as the long-term effects of marijuana will take at least a generation to do carefully and will then probably leave us knowing far more about marijuana than we do about the fluorides, pesticides, patent medicines, and a host of other substances we freely use without any legal impediment.

Sidney Cohen, director of the Division of Narcotic Addiction and Drug Abuse of the National Institute of Health, in his list of "misunderstandings" about marijuana includes

Research will give us the answers about the dangers of marihuana

The danger that all are concerned about is its long-term effect. Investigators will have to observe subjects for two or three decades before that question can be answered. Those calling for research to determine our position about marihuana have unrealistic expectations about the rapidity of a reliable response.34

And it will be impossible to maintain a "hold position" on the marijuana issue until the research is completed.

Young people today know that there were virtually no calls for more research before the decision was made to criminalize marijuana to begin with, nor at any point in the many decisions by which many states and the federal government gradually increased the penalties for the drug's use. To them the very idea of advocating more research in the hope of justifying what we are already doing can only increase their alienation—especially when every call for more research seems coupled with a plea for a moratorium on major changes in the law, rather than a mora-torium on its enforcement.

The "wait until the research is in" argument is now probably the most respectable argument for making no drastic change in the criminalization of marijuana. As put by Dr. James Goddard, for-mer director of the U.S. Food and Drug Administration, it is:

In the case of marijuana, we will know in a very few years how harmful it is or is not. If it turns out to be relatively harmless, we will be embarrassed by harsh laws that made innocent people suffer. If it turns out to be quite harmful—a distinct possibility—we will have introduced yet another public-health hazard that for social and economic reasons might become impossible to dislodge.35

Despite Dr. Goddard's well-known good will and ability, there are three major fallacies in the one short paragraph. First, it will be much longer than "a very few years" before we know "how harmful" marijuana is, assuming Dr. Goddard means know with a high degree of precision. And if he means with precision enough to decide whether the benefits of the marijuana laws outweigh their enormous costs, then we know that already. Second, it is a vast understatement to say that if we take no action we will be "embarrassed by the harsh laws that made innocent people suffer." It is far more than an embarrassment, and the sufferers are many more than those convicted on marijuana charges. It is our whole body politic that is suffering, and seriously.

And finally, it is hardly accurate to say that if marijuana turns out to be harmful we will have "introduced another public-health hazard." The public-health hazard has already been introduced, and despite its mightiest efforts, the criminal law shows today no sign of being able to dislodge it. Indeed, Dr. Goddard seems to be assuming—subconsciously, of course, since he clearly knows better—that if marijuana use is against the law it will not be a public-health problem. Not only will it still be, but the criminal law in many ways will continue to aggravate the problem.

In short, while we are having our research done, we will have to bear the ever-increasing disparity between the costs and the benefits of our marijuana policy. And for the most part, even when this research is done, the chances are overwhelming that it will not change anything.

The Future

What then will become of the marijuana problem? It should be clear by now that the problem will not simply go away. The other two possibilities, no change in the law while the costs steadily mount or the adoption of a licensing system, seem for very different reasons equally unlikely today.

Certainly, at this time, licensing the sale of marijuana is politically inconceivable. One legislator phrased the problem neatly when he remarked, "I would vote to legalize marijuana if you could show me how to get reelected if I did." There is little doubt that he correctly judged the present temper of the electorate.

A recent poll indicated that seventy-five percent of the adult population of California—a state relatively well informed on the issue--considered marijuana to be much more dangerous than alcohol and eighty-three percent felt that marijuana use caused the use of other drugs.36

So long as this is the case, it is unlikely that the electorate will be moved by arguments concerning the costs of the marijuana laws—at least until sufficient numbers of marijuana smokers appear on juries to make the system of enforcement break down as completely as it did toward the end of the Prohibition era.

To the extent, however, that the public views are founded upon, or subject to influence by, empirical evidence and reason, they will wane. Indeed, the California poll showed that although only eight percent of the population over the age of fifty feels that marijuana is no more dangerous than alcohol, thirty percent between the ages of twenty-one and twenty-nine feel this way." And from a host of other sources we can tell that those under twenty-one promise even stronger support for this view. Moreover, those who hold that marijuana is no more dangerous than alcohol can be expected to have influence out of proportion to their num-bers. At least among the young, the marijuana-users are more and more tending to be the better-educated youths who will in the future be more likely to be the opinion-formers of their generation.

There are several other reasons to believe that the present impasse shows signs of breaking. First, the high costs of marijuana criminalization are becoming more apparent to all—and they grow higher each year with the increases in marijuana use. Second, as marijuana use becomes much more widespread, it will become more difficult to avoid weighing the degree of danger to both the user and the society that the drug represents against the costs of criminalization.

This, of course, will not solve the symbolic issue, but even a symbol becomes more difficult to maintain as the facts become clearer. There will be those for whom marijuana will remain an emotional, symbolic issue, but as the Prohibition experience demonstrated, when the cost becomes too high, they do not command sufficient political strength to prevail.

It is worthwhile remembering that the licensing of marijuana sale is today no more inconceivable than was the licensing of alcohol sale only ten years before the end of Prohibition. Prohibition's symbolic aspects were even stronger than those of marijuana, resting not only on a religious schism but on our rural-urban divisions as well. And while marijuana criminalization was enacted at a time when it raised no argument, since the drug was virtually unknown, Prohibition was the culmination of a movement that gradually gained strength over at least half a century.

Despite the fact that it took a constitutional amendment to repeal Prohibition, the electorate had changed so markedly that this was done less than fifteen years after the original enactment.

We can already see the trend under way with respect to mari-juana. Only three years ago the head of the Federal Bureau of Narcotics could say that criticism of the penalties for marijuana offenses "is either by persons who are not fully informed or by persons who want to legalize possession of marijuana."38 Last year the Nixon administration submitted a bill to Congress sharply reducing the penalties for marijuana possession. Eight states have already lowered their penalties for marijuana possession.39 And, even more significantly, some political officeholders are now able to question the basic wisdom of our marijuana policy." Though many who are, in private, troubled still find it politically expedient to denounce the marijuana menace and call for harsher_penalties or stricter enforcement, the political advantages—and hence the frequency of this attitude—can be expected to lessen over the years.

Although the marijuana issue is a symbol of all sorts of con-flict in our society, not only do we have without it more .than enough sources of divisiveness already, but in some sense there is an element of overkill in the issue. The younger generation— whatever their faults—are the sons and daughters of the older generation. As more and more parents find their children and their friends' children arrested for marijuana offenses and alienated from our society by the marijuana laws, they will begin to question whether the symbol—like the benefits of marijuana criminalization—is worth what it costs.

Summary

We now consider the obstacles in the way of adopting a licensing system for marijuana. There are two legal obstacles, federal law and the Single Convention on Narcotic Drugs. Though they are, of course, serious impediments today, both of these would yield to any political consensus strong enough to enact a licensing system to begin with.

Next, there are a whole set of arguments that this action, while perhaps appropriate at some future date, would be premature now. The first of these is that the costs of the marijuana laws may be greatly decreased in the future by successful enforce-ment. So far as enforcement within the United States is concerned, we have been attempting that for thirty years and the situation has become much worse. Moreover, with the present level of violation, only a vast increase in the police resources devoted to the problem, coupled with a substantial erosion of our constitu-tional liberties, could enforce the law. The chances are overwhelm-ing that most Americans are not willing to pay this price.

The next possibility is that our borders could be sealed to marijuana. This would require fewer resources and involve us in lesser invasions of privacy than the former method of enforcement, but we have tried this recently without success in Operation Intercept. In fact, the possibility of transshipment and the vast volume of imports entering the United States makes this impossible too, and has the additional disadvantage of increasing the importation of hashish as opposed to the weaker, vegetable marijuana.

Finally, there is the hope that we can induce other nations, including Mexico, to destroy their marijuana fields. Technically, this is by far the most practicable of the possibilities for success-ful enforcement, but the political problems are insurmountable-- at least-at a price we are willing to pay. Moreover, if one nation does suppress its marijuana cultivation, others will step into the breach, and if all other nations did suppress their cultivation, the plant can now be grown indoors with artificial light, a techno-logical possibility merely waiting for the price to rise high enough to make it economically feasible.

Very different from the idea that more enforcement will bring the costs of the laws better in line with their benefits is the idea that less enforcement will. The problem is that the laws against possession, if still on the books, will remain too convenient for law-enforcement agents to ignore in controlling other types of behavior they regard as undesirable. Moreover, even if the laws against marijuana possession were no longer enforced, we would still presumably enforce the laws against importation and sale, and as a result would, de facto, adopt the vice model with all its disadvantages.

Of course, it is always possible that marijuana may fall out of favor with its users and that the problem will be solved that way. However, this shows no sign of happening, nor is it the least bit likely that research on marijuana will uncover dangers great enough to scare away its users, especially considering the effect of what we know about tobacco and alcohol on the consumption of those drugs.

Nor can we take the view that action to adopt a licensing system is pre/nature because research may soon justify the course we have been taking for the past thirty years. The difficulty here is, first, that this research will take at least a generation to perform; second, it almost certainly will not alter the balance between the costs and benefits of the marijuana laws—though it might lessen the imbalance somewhat; and finally, we would be forced to bear the rapidly increasing costs during the interim.

Fortunately the situation is not as bleak as it seems. The adoption of a licensing system for marijuana is no tnore politically inconceivable today than the repeal of Prohibition was only ten years before it happened. As more of our population learns of the enormous disparity between the costs and benefits of the marijuana laws, the symbolic aspects of the issue will become less important. Enough people may then decide that the symbols, like the benefits of the marijuana laws, are not worth what it costs.

NOTES
1. See 26 U.S. Code 4741 ff.

2. Letter from John E. Ingersoll, Director, Bureau of Narcotics and Dangerous Drugs, U.S. Department of Justice, Jan. 15, 1970.

3. See Mandel, J., "Problems with Official Drug Statistics," Stanford Law Review, Vol. 21, 1969, p. 1020.

4. Federal record-keeping during the year 1969 was rendered ex-tremely difficult by the Leary decision. This, however, is a rea-sonable estimate.

5. Single Convention on Narcotic Drugs (Multilateral Treaty Be-tween the United States of America and Other Governments), New York, March 30, 1961, ratified by United States, 1967.

6. "While You Weren't Looking," The New Republic, July 8, 1967,P. 7-

7. Single Convention.

8. See "The Law of Treaties—As Applied by the Government of the United States of America," pp. 180-81 (unpublished document prepared by United States Department of State, 1950). The Future of Marijuana Criminalization 375

9. Birmingham, Robert L., "Legal and Moral Duty in Game Theory: Common Law Contract and Chinese Analogies," Buffalo Law Review, Vol. 18, No. 1, 1968-69, p. 99, quoting A. Sinclair, Pro-hibition: The Era of Excess (New York: Harper & Row, 1962), p. 369.

10. Communication from Irving S. Brown, former Director, Intel-ligence and Communications, U.S. Bureau of Customs, dated Aug. 12, 1969.

11. Acheson, David, Hearings Before the Special Congressional Sub-committee of the Committee on the Judiciary, concerning the Narcotics Rehabilitation Act of 1966 (1966), p. 145.

12. San Francisco Chronicle, Sept. 23, 1969, p. 22.

13. Los Angeles Times, Sept. 28, 1969, Sec. G, p. 5.

14. San Francisco Chronicle, Oct. 3, 1969, p. 12.

15. Ibid.

16. San Francisco Examiner, Sept. 28, 1969, p. 1.

17. San Francisco Chronicle, Sept. 30, 1969, p. 7.

18. San Francisco Chronicle, Oct. 11, 1969, p. 14.

19. Ibid., p. 1.

20. /bid.

21. Ibid.

22. Ibid., p. 14.

23. San Francisco Chronicle, Sept. 23, 1969, p. 22.

24. San Francisco Chronicle, May 21, 1969, p. 52.

25. Ibid.

26. See' Mikuriya, Tod, "Kif Cultivation in the Rif Mountains," Eco-nomic Botany, Vol. 21, 1967, p. 230.

27. Sinclair, op. cit., p. 197.

28. See Rose, Graham, "Instant Fodder May End the Grass Famine," The Sunday Times (London), Sept. 14, 1969, p. 14.

29. Drug Arrests and Dispositions, 1968, Bureau of Criminal Statistics, Department of Justice, Sacramento, Calif. (1969), pp. 51, 55.

30. For a discussion of some of the issues in these cases, see New York Law Forum, Vol. 14, No. 1, Spring, 1968.

31. Stanley v. Georgia, 394 U.S. 557, 89 Supreme Court Reporter 1243 (1969).

32. Testimony of Stanley Yolles before the Subcommittee on Executive Reorganization of the Committee on Government Operations, U.S. Senate, 89th Congress, 2nd Session, May 23, 24, 25, 1966, p. 45.

33. Statement of Helen H. Nowlis before the Subcommittee to In-vestigate Juvenile Delinquency of the Committee on Judiciary, U.S. Senate, Oct. 16, 1969, p. 6.

34. Cohen, Sidney, The Drug Dilemma (New York: McGraw-Hill, 1969), p. 61.

35. Goddard, James, "Should It Be Legalized? Soon We Will Know," Life, Nov. 10, 1969, p. 28.

36. Field, Mervin D., "A Harsh View of Marijuana," San Francisco Chronicle, May 21, 1969, p. 52.

37. Ibid.

38. Statement of Henry L. Giordano, Commissioner of Narcotics, be-fore the Intergovernmental Relations Subcommittee of the Com-mittee on Government Operations, U.S. Senate, Nov. 15, 1967, P. 7.

39. See Rosenthal, M. P., "A Plea for Amelioration of the Marijuana Laws," Texas Law Review, Vol. 47, 1969, pp. 1359, 1378.

40. San Francisco Chronicle, Oct. 15, 1968, p. 9. "A Congressman [Robert C. Nix (Dem., Pa.)] publicly opposed any laws against the use and possession of marijuana. . . . Nix's remarks were the first time narcotics experts can recall a Congressman publicly

taking a stand against marijuana laws.