Chapter 1

INTRODUCTION

Generally speaking, criminal prohibitions are easier to enact than to repeal. They may be inscribed in the criminal code effortlessly, even thoughtlessly; but any effort to erase them must hurdle a presumption of wisdom and righteousness. This burden is difficult to sustain even if the original legislative decision was demonstrably misconceived. The marijuana laws provide a case in point.

Elsewhere I have traced the evolution of marijuana prohibition through five separate phases.1 The first, running roughly from 1915 to 1931, was a period of distinctly local and regional prohibition, occurring primarily in the states west of the Mississippi and influenced heavily by anti-Mexican sentiments. The second was a nationalization period, spanning 1932-1937, characterized by shrill propaganda by federal authorities in support of the Uniform Narcotic Drug Act and culminating in congressional passage of the Marijuana Tax Act. The third was a period of dormancy (1938-1951) after prohibition was achieved. Then, an escalation phase occurred (1951-1965) when marijuana was portrayed as the first stepping-stone to heroin addiction and the nation embarked on an extraordinarily punitive approach to narcotic use. During this phase, penalties for marijuana offenses were increased as an adjunct to increases in penalties for narcotic use and by the end of this period all marijuana offenses, including simple possession, were felonies in most states.

The fifth, "penalty reduction," phase occurred from 1965 to 1972 when the entrenched opposition to marijuana use was exposed to public debate for the first time in its 50-year history. In response to the extraordinary explosion in marijuana consumption and the penetration of its use into the middle classes, every state amended its penalties in some fashion between 1969 and 1972, the overall result being a massive downward shift in penalties for consumption-related offenses. Simple possession of less than one ounce was classified as a misdemeanor in all but eight states by the end of 1972. In March of that year, the publication of the report of the National Commission on Marihuana and Drug Abuse,2 recommending decriminalization of consumption-related offenses, marked the beginning of a sixth, "decriminalization" phase. During this period the states began to explore noncriminal approaches toward discouraging marijuana use.

In 1973, the National Conference of Commissioners on Uniform State Laws promulgated amendments to the Uniform Controlled Substances Act which codified the recommendations of the National Commission. Some form of decriminalization was endorsed during the same year by a variety of national organizations, including the American Bar Association and numerous state and local bar associations, the National Education Association, the Consumers Union, the National Council of Churches, the American Public Health Association and the Governing Board of the American Medical Association, In 1973, Oregon became the first state to decriminalize possession of small amounts of marijuana. As of this writing, nine additional states have eliminated incarceration as a penalty for simple possession, usually substituting a $100 fine. Four of these states have made possession a "civil" offense; in others it remains a criminal offense but the law usually contains a provision for expungement of criminal records after specified periods of time. In Alaska, because of a Supreme Court ruling in that state, possession by adults in the home for personal use is not an offense at all.3

Despite the efforts of an army of reformers led by the National Organization for Reform of Marijuana Laws (N.O.R.M.L.), the pace of decriminalization has been agonizingly slow. Meanwhile, the costs of this misbegotten use of the criminal law continue to mount. In 1972, when the National Commission recommended decriminalization, the most recent F.B.I. figures indicated that perhaps 200,000 persons had been arrested for possession of marijuana during 1970.

For 1974, the F.B.I.'s reported figure was in the neighborhood of 450,000 arrests per year, where it has remained since then.

Had marijuana suddenly appeared on the American scene in 1970, as a previously unknown drug used by the same population and on the same scale it has now achieved, prohibition would not even have been considered. The drug is used privately as a social drug, with shared ritual and meaning, among a broad spectrum of the American teenage and young adult populations. For the most part, use of the drug has not been associated with visible anti-social behavior.

If marijuana had no past, the issue would be whether some form of government regulation would prove beneficial to the users' health or to the public coffers. And, even then, the using population would insist that any restrictive action be tailored narrowly to achieve a specific governmental purpose.

But the contemporary legislator is being asked to repeal a criminal prohibition now on the books, a decision made easier by the fact that reformers, for the moment at least, seek only to decriminalize consumption-related behavior. Yet, opponents of repeal contend that use of marijuana would be "encouraged" by decriminalization even though the substance itself would still be contraband and its production and distribution would still be outlawed.

History has woven a web around the use of marijuana ; public and legislative reluctance to modify or eliminate marijuana prohibition in the 1970's and 1980's is based on attitudes molded by two generations of illegality.

Marijuana use in the 1960's confronted a system of criminal prohibition which carried its own meaning as defined in another time. Decades of classification as a narcotic, the presumptive immorality attaching to felonious conduct, and the implication of addiction, crime, and insanity had instilled in the public consciousness a fear of marijuana unjustified by the demonstrable effects of its use.

That fear, as codified by criminal law, now bars the way to a much-needed reform.

This book is designed to aid the cause of reform. It is a collection of essays composed over a period of four years in the effort to pursuade state and federal legislators to abandon this mistaken use of the criminal sanction. Thus these essays are directed, first of all, to those in the trenches —those who must deal not only in facts but in rhetoric, those who must hurdle the presumption against change, those who must manipulate symbols in the legislative process. They are also directed toward legislators who have not yet made up their minds about the marijuana issue. It should become clear that the case for reform is irrefutable, even against the backdrop of the most conservative philosophical premises and empirical assumptions. For lawmakers who are sensitive to the messages of repeal, a path of lesser political resistance is plowed at every point along the way.

Because the obstacles to marijuana law reform are illustrative of some generic problems in contemporary criminal law, these essays also have a more expansive purpose. Much has been written in the last decade about "overcriminalization" and the misuses of the criminal sanction. But considerably less attention has been devoted to the consideration of alternatives. If society's duly authorized policy-making bodies have chosen to disapprove and discourage some variety of behavior, how should they then proceed to assess the role which the law may legitimately and usefully play in implementing this policy? And in this context, what distinguishes criminal sanctions from non-criminal ones?

What is needed is a theory of sanctions for minor offending conduct. This book is not intended to offer such a theory, although this is a matter of much interest to me. Instead, it attempts to flush out several of the important theoretical questions in a single context. I noted earlier that the marijuana laws provide a good example of the difficulties encountered in repealing criminal prohibitions. But they provide an equally good vehicle for analyzing the factors which ought to be considered in designing legal sanctions.

1. On the history of the marijuana laws, especially the assumptions on which the legislators acted, see R.J. BONNIE & C.H. WHITEBREAD, THE MARIHUANA CoNvicrioN (1974) which elaborates on and documents a thesis originally advanced in Bonnie & White-bread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marihuana Prohibition, 56 VA. L. REV. 971 (1970).

2. NATIONAL COMM'N ON MARIHUANA & DRUG ABUSE, MARIHUANA: A SIGNAL OF MISUNDERSTANDING (1St Report 1972), hereinafter cited as MARIHUANA COMM'N REPORT.

3. For a summary and analysis of the state of the marijuana laws as of August, 1976, as well as a review of constitutional challenges to these laws, see National Governor's Conference, Marijuana: A Study of State Policies and Penalties, 3 RESEARCH AND CASE STUDIES, ch. 3, "The Legal Dimension" (1977).