Drug Abuse

Chapter 3

THE CASE FOR DECRIMINALIZATION*

I.
Decriminalization of possession' of marijuana for personal use was the central recommendation of the First Report of the National Commission on Marihuana and Drug Abuse, issued in March, 1972. At that time the F.B.I.'s uniform crime statistics indicated that perhaps 200,000 persons had been arrested for possession of marijuana during 1970 alone. For 1978, the F.B.I.'s reported figure was about 450,000 arrests. In support of its recommendation to decriminalize possession, the Commission documented the serious institutional and individual injuries caused by criminalization and then refuted every conceivable argument against repeal.2 The Commission concluded that the decriminalization of possession was the best way to achieve both of its declared objectives—discouraging marijuana use while deemphasizing marijuana as a "problem" in the scale of social priorities.
Since that time, decriminalization has won extraordinary backing from most serious observers from all institutions in American life and from all points on the political spectrum. It has been endorsed by a comprehensive assortment of professional organizations. The list includes the Governing Board of the American Medical Association, the American Bar Association and numerous state and local bar associations, the National Educational Association, the Consumer's Union, the American Public Health Association, and the National Council of Churches.

The National Conference of Commissioners on Uniform State Laws ordinarily is reluctant to recommend uniformity in the area of criminal law. However, in a striking departure from this customary restraint, the Conference promulgated an amendment to the Uniform Controlled Substances Act which is designed to implement the Commission's decriminalization recommendation.

This consensus of opinion should not come as a surprise : the withdrawal of the criminal sanction from possession of marijuana for personal use is consistent with basic tenets of political conservatism ; the Marihuana Commission's recommendation is designed to preserve this society as we know it, not to facilitate radical change. Thus, the Commission recommended that this nation adopt a "discouragement policy" toward marijuana use and resist efforts to institutionalize availability of this drug by "legalizing" and regulating its distribution. Instead, the Commission thought that the uncertainty about the effects of long term use, our ignorance about regulatory systems—and our ill fortunes with the so-called alcohol model—justified a continuing prohibition of cultivation and commercial distribution. On the other hand, the Commission also concluded that the criminalization of the marijuana user is not necessary to implement a discouragement policy and is, indeed, causing grievous harm to this society's basic institutions, especially the legal system.

What then are legislators waiting for? If we were to look at public statements alone, we would think the official defense of the status quo runs something like this : "Marijuana use has to be a crime because we're not yet sure how use of the drug would affect a person's physical and mental health if he were to use a lot of it for a long time."

But this is absurd. Since when is it criminal for a person to risk his health and well-being? Consider the recent controversy regarding the automobile seatbelt buzzer and interlock system. I have no doubt that these devices decrease the risk of fatalities in traffic accidents by increasing the number of people wearing their seatbelts. Under the law in effect for 1974 models, the manufacturers were required to install these devices. Note carefully that the law did not coerce people to wear their seatbelts, and failure to wear seatbelts was not a crime. Instead, the law simply denied the consumer the choice to buy a less safe car.

Yet Congress, in 1974, repealed the mandatory requirement that seatbelts buzzers and interlock systems be included in the 1975 models. I cannot imagine more unequivocal support for the proposition that sometimes the American people and their representatives care very little about individual health and safety and are sometimes willing to tolerate substantial risk for very little benefit. In this case the enhancement of personal safety was apparently outweighed by the inconvenience of having to "buckle up."

Let me turn next to the problem of harmful substances used for non-medical purposes. We all know of course that long-term tobacco use is clearly harmful to individual health ; yet the prevailing governmental policy is to discourage use of the substance by informing the public of the risks and by prohibiting certain commercial attempts to encourage smoking. At the same time, in the context of this discouragement policy, the government has not curtailed the availability of these substances, relying instead on personal choice.

Obviously the same is true for the present social policy toward alcohol. And this is so despite the well-documented effects of chronic alcohol use on individual health and the equally clearcut harms to the public health and safety flowing from acute or chronic alcohol intoxication.

The point is this. The issue on the legislative agendas in every state capital is not a health issue. Nor is it a moral issue. The intoxicant property of marijuana cannot honestly be distinguished from that of alcohol in terms of this society's moral and social acceptance of recreational drug use.

The issue is not the properties of marijuana—the effects or even the ethics of its use. The sole issue is the wisdom of continuing to apply criminal sanctions to individuals who choose to use the drug despite the government's preference to the contrary and despite its efforts to suppress availability.3

On this issue, all of the material facts are in. Legislators already have all the necessary information—about marijuana, its use and the present operation of the criminal justice system—on which to base a sound decision whether or not to employ the criminal sanction for simple possession. We do not yet know whether the heavy use of marijuana over a long term reduces testosterone level or impairs pulmonary lung function. But these matters are simply not relevant to the decision which is now on the public agenda.

The report of the National Commission was issued in 1972. Since that time, nothing of any consequence has emerged which alters any of the Commission's basic findings or recommendations.

All of the old myths about the effects of marijuana, which underlie both the antagonistic public attitudes toward the drug and the existing criminal prohibitions, have been disproved.

—Marijuana use does not cause crime or aggressive behavior—indeed, the acute marijuana experience probably makes the user more passive and less likely to engage in violent behavior.

—Marijuana is not physically addictive and its psychological dependence liability is milder than that of most psychoactive drugs now in use.

—Marijuana use does not "lead" to the use of harder drugs in any causal sense; in fact, the overwhelming majority of marijuana users use no other drug aside from alcohol, the use of which ordinarily preceded their marijuana use. (Indeed, if there is any drug whose use is statistically a stepping-stone to the use of another drug, that drug is alcohol.)

—Marijuana use does not cause insanity or psychological deterioration in any meaningful sense. It is entirely possible, of course, that the acute drug experience, whether the drug is marijuana, LSD, or any other drug with hallucinogenic effects, can precipitate an acute psychosis in otherwise predisposed individuals. However, this happens very rarely.

Three facts are of central relevance to the decision whether or not to criminalize the marijuana user:

First, at least forty million Americans have tried marijuana at least once and at least fifteen million Americans continue to use it on a regular basis.

Second, the overwhelming percentage (perhaps 90 percent) of marijuana users use the drug only for recreational purposes. Aside from alcohol, marijuana is the most widely-used recreational drug in America.

Third, it is well established that the moderate, recreational use of marijuana—in the doses and frequencies with which it is customarily used—presents no risk of physical or psychological harm to the user, over either the short or the long term.

This is not to say that marijuana is a harmless drug ; responsible advocates of reform do not contend that it is. As is the case with any psychoactive drug (or any drug for that matter, including aspirin), the ingestion of marijuana in high doses clearly can cause acute ill effects on the user's body and mental functioning ; and undoubtedly the chronic heavy use of marijuana has some adverse effect on some body organs and on psychic functioning.

Even so, it is now demonstrable—by any measure—that marijuana is substantially less harmful than alcohol and, indeed, marijuana is probably the least harmful psychoactive substance now in widespread use in the world.
Those are the facts. But the case for reform is not in any way weakened if we posit a worse state of affairs. We should assume that marijuana use poses serious risks to individual health and welfare if the drug is consumed in large doses or is used frequently over a long period ; in other words, we should assume that the risks are roughly equivalent to those associated with alcohol use—even though it is highly improbable that marijuana is that harmful.4 And we should assume further that the government has correctly decided to discourage any use of the drug in order to minimize the types of use which present these risks,5 and to minimize the number of "casualties."

Even if we make these assumptions, the criminalization of the user is indefensible. Little social benefit is achieved by invoking or threatening to invoke the sanction ; and the costs of doing so are overwhelming. These points will be demonstrated in the following two sections of this essay.

II

Let us first consider the various purposes which can be served by criminal sanctions or by the criminal process. In this way we can isolate the benefits of criminalization which might be offered to offset its substantial "costs" as applied to marijuana use.

Punishment and Immorality

In the past, marijuana use was identified with immorality, criminality and degeneracy, and the possession offense was a convenient device for punishing the marijuana user for his entire deviant lifestyle. But marijuana users are no longer "outsiders," but are drawn instead from the social mainstream. The experimental and recreational use of marijuana is morally and socially indistinguishable from similar use of alcohol.

For this reason, a desire to assist, not to punish, now characterizes popular and official attitudes toward the contemporary marijuana user. The public views the marijuana user for what he generally is, a young, otherwise law-abiding citizen. The prevailing motivation is to get him to stop using marijuana, not to punish him for having done it. To the extent that the retributive instinct supports the criminal sanction, it is totally inapposite in the case of marijuana use.

Therapy and Leverage

The criminal process is sometimes used to identify particular offenders in need of treatment and to exert leverage for this purpose. This is the primary rationale for the heroin possession offense, and for many sex offenses as well, since it is presumed that most (not all) persons who engage in these behaviors are in need of attention. The criminal offense is the entry mechanism.7

However, most marijuana users and marijuana offenders as well, are not in need of treatment in any sense and are in fact indistinguishable from their peers in all respects other than their marijuana use. The vast majority of marijuana users do not use the drug heavily and do not use any other illicit drug. Thus, even if a possession offense is legitimately used as a leverage device in other contexts, this rationale is simply not applicable to possession of marijuana.

Control and Dangerousness

In some contexts, a behavior may be criminalized in part to give society an objective basis for confining a person who is perceived to be dangerous to person or property. Again, this rationale is totally inapplicable to marijuana use.

Deterrence and Discouragement

We come then to the only remaining rationale for a criminal prohibition : the policy-making bodies have determined that citizens should be discouraged from using marijuana and have sought to preclude the drug's availability ; through its symbolic and deterrent functions, the criminal prohibition of possession may be regarded as a necessary implementation of this discouragement effort.

Despite its central role in our criminal law, the deterrent process is ill-understood and under-researched.8 The otherwise difficult task of determining why people behave in a given way is compounded by the need to isolate and define the educative role of the prohibition and the different components of the legal threat. For present purposes, however, several propositions can be enunciated with some confidence.

I. The legal threat plays a greater role in shaping some types of behavior than other types. From this perspective, marijuana use, an "expressive" behavior, is probably less deterrable than conduct which is a means to some other ende.g. forgery—and which is more visible and susceptible to detection.

2. Adolescents and young adults are less deterrable by legal threats than their elders. Since young people predominate among marijuana users, one would expect the overall deterrent process to be less effective.

3. The deterrent process plays little role in determining the frequency or amount of use. Whether a user will use heavily is instead determined by a wide variety of non-legal variables, particularly psychological ones, as well as the availability and price of the drug. The possession offense is thus inapposite to the government's major aim—to minimize heavy use.

4. Under current conditions of availability and social acceptance, whether or not a person will join the millions of other Americans who have experimented with marijuana will be determined more by who he knows and how fearful he is of adverse health consequences than by fear of adverse legal consequences—apprehension, prosecution and incarceration. The same appears to be true regarding whether the initiate will join the 15 million or so Americans who regularly use the drug.

To elaborate, a large proportion of persons who have not yet used marijuana profess that they would not use the drug even if it were legitimately available, and offer health-related or ethical reasons. This may be true of 75 percent to 90 percent of those who have not yet tried the drug ; for them, the illegality of the drug and the criminalization of use have not played the key role in their failure to experiment. Similarly, a large proportion (perhaps 50 percent) of the persons who have chosen not to continue use after their initial experimentation profess that they would not become "users" even if the drug were legitimately available. "Loss of interest" is the most frequent explanation.

Thus, the range of persons who could be affected one way or another by the legal status of possession is relatively narrow—about one-fifth of those who have not yet experimented and perhaps a third of those who have experimented but have forsaken use of the drug.

5. The corollary of this observation is that the criminal prohibition of possession probably does play a role in "preventing" some portion of the population from experimenting with the drug (initial use) and may also influence decisions to terminate use after the initial trial. But what is it about the law that has this influence? Is it deterrence in the classic sense of fear of detection and punishment? For some socially stable middle-class citizens who have tried the drug but given it up, the fear of arrest may have played a role. But it is likely that the prohibition has played a more subtle role in most cases—the educative or moralizing role by which the knowledge of illegality reinforces otherwise weakening inhibitions.

To put it another way, the reformers contend that the marijuana laws are generating disrespect for law because many otherwise law-abiding citizens have crossed the bridge and engaged in criminal conduct ; for them, the ascription of criminality was not enough the reinforce a faltering social norm which had lost its other supports. The corollary is that some law-respecting souls are more timid about transgressing norms codified in the criminal code. For them, the repeal of the prohibition might release the psychological restraint. Of course, such cautious persons are precisely the type of person who would never endanger themselves or others by their marijuana use.

6. To the extent that some potential users are "deterred" in the classic sense, the deterrent value of the law depends heavily on the credibility of the threat of detection and punishment. But to be credible, especially for a behavior like marijuana use, the law must be enforced—violations must be detected and sanctions must be applied to violators. But society would pay a heavy price to maintain the credibility of this threat at a meaningful level. Clearly the insignificant harm posed by marijuana use does not justify that kind of law enforcement commitment—about this at least, there is a consensus which has been apparent for some time now. Indeed, given the private nature of the behavior, the Fourth Amendment precludes a highly credible threat of detection.9 Moreover, society has also chosen to sacrifice the credibility of the threat at every phase of its application in order to reduce the costs." Every effort that police, prosecutors, courts and legislatures make to avoid the implications of criminalization in individual cases weakens the deterrent value of the threatened sanctions.

7. These observations suggest that repeal of the criminal sanction may result in a slight increase in experimentation by non-users and a slight increase in the proportion of experimenters who become users—nothing more substantial than that. But two caveats are in order even on this narrow point. First, this prediction is in comparison to the level of use under current sanctioning conditions ; however, the levels of experimentation and use will continue to increase to some extent in any event as norms unfavorable to use continue to weaken and as the level of enforcement (and the credibility of the threat) continue to drop. Second, the substitution of a civil sanction may result in greater deterrence, by virtue of its greater probability of application, than a sporadically-applied criminal sanction.

III

The costs of criminalization may be subsumed under three headings: (a) "enforcement costs" through diversion of resources better spent elsewhere ; (b) individual injustices through the application of criminal sanctions to the nearly half-million individuals apprehended annually for violating the possession laws and (c) injuries to the nation's legal institutions, in particular to the operation of the rule of law.

Diversion of Criminal Justice Resources

The police energies consumed by the more than 1000 marijuana arrests which they make each day are diverted from detection and apprehension of persons who have committed serious crimes against person or property. Many marijuana arrestees (more than 50 percent) are apparently dismissed at some point in the criminal process because of prosecutorial or judicial unwillingness to apply the criminal sanction: in these situations, criminal justice resources have been expended for no apparent purpose. Estimates of misallocated resources run as high as 600 million dollars per year. In this connection it is not surprising that spokesmen for police, prosecution, and judicial organizations are increasingly registering official support for repeal of the possession penalty.

I might also observe that substantial attention has been directed in recent years to two matters of criminal law with substantial public consequence. On the one hand, we hear much about the "crisis" of criminal justice administration in our urban centers and about the inability of the "system" to curb violent street crime, especially by young recidivists. On the other hand, increasing public antipathy has been directed to the social and economic devastation—and even political corruption—engendered by white-collar crime. Each of the recent Administrations has indicated that it will pull out the stops in its war on white-collar crime. Against this background, the application of criminal justice resources to the problem of marijuana use and possession is simply ludicrous.

Even if possession were to remain an offense, the police, prosecution, judicial and correctional resources now consumed by the enforcement and application of the marijuana laws could be considerably reduced by reclassifying the offense as a "civil" infraction rather than a misdemeanor. Removing the stigma of criminal conviction, and the possibility of incarceration, would permit the police to avoid time-consuming booking procedures, would remove the offender's incentive to challenge the state's case through evidentiary proceedings and would thereby minimize the prosecutorial and judicial resources devoted to marijuana cases.

Impact on Individual Violators

Persons apprehended but not convicted for marijuana violations nonetheless have an arrest record. The actual and potential threats to the individual's economic and social interests posed by arrest records have been well documented." The question is thus squarely presented whether this backdoor punishment—the sanction of arrest—is justified in light of prosecutorial and judicial unwillingness to apply the sanctions of conviction and incarceration.
Among those convicted, most individuals are spared the full impact of the criminal law. Neither the legislators nor the judges are anxious to punish the offender or to impose harsh sanctions. So probation, with or without verdict, suspended sentences and fines are the normal dispositions and expungement of the conviction is often available.

Nonetheless, despite these developments, large numbers of offenders are stigmatized by the record of conviction, and some judges even persist in sentencing marijuana offenders to jail.

Conviction of a crime is a potent statement of social disapproval. Although the meaning of a "conviction" has been diluted by its application to behavior like marijuana use, serious social and economic disabilities continue to attach as if the criminal code were coextensive with serious wrongdoing. Many potential employers do not stop to ask what offense an applicant has been convicted of ; the label of criminal is enough to stop inquiry altogether.

Too often the current laws have been defended on the ground that the legislators have already reduced the penalties from a felony to a misdemeanor as if this statement rebutted the arguments for decriminalization.

A misdemeanor is still a crime. The consequences of a misdemeanor conviction are no less real because they are not as serious as those attending conviction for a felony.

Consider the possible consequences of a misdemeanor conviction which arise by law—

Up to one year in jail in the discretion of the sentencing court;

Possible loss of, or ineligibility for professional licenses (e.g. medicine, dentistry, law) ;

Possible loss of, or ineligibility for industrial or other occupational licenses (e.g. nursing, barbering, private investigation, notary public, insurance adjuster) ;

Possible loss of, or ineligibility for public employment.12

Consider further the empirically-demonstrated consequences of criminal conviction in the private sector: many employers will not even consider applicants with a prior criminal record ; and even if there is no per se exclusion, most employers systematically hire persons without criminal records in preference to persons with such records.

Some legislators of course have recognized the adverse consequences of a criminal conviction and concluded that marijuana users don't really deserve that kind of disability. So they have adopted various techniques for avoiding the implications of the decision to criminalize: expungement of the record of conviction, diversion in lieu of prosecution or entry of conviction, probation without verdict and similar devices which avoid official records of guilt.

But these are merely bandaids—efforts to keep the offense a crime but avoid the implications of that decision in individual cases. This device increases the risk of arbitrariness in the process of selecting—from among those arrested—who will be booked, who will be diverted, who will be convicted, who will have their records expunged, who will be jailed, etc., all because marijuana use is a criminal offense and because people are arrested for its commission.

Impact on Legal Institutions

The most compelling reason for modification or elimination of marijuana prohibition lies in its disastrous impact on the law as an institution. In this century American society has turned to law, particularly the criminal law, to serve a multitude of functions. An attitude has evolved that any behavior offending a prevailing sentiment should be punishable by law. As a result, the legal system has been overextended until its value as a symbol has been magnified beyond its capacity to absorb disobedience. When the law is so readily employed as a symbol of disapproval, it will be easily wielded as a symbol of oppression. When a society so frequently relies on the legal system to control behavior, it will inevitably debase and weaken the influence of those institutions with the greatest capacity to mold desirable conduct.

The marijuana laws manifest the crisis of law that this society now faces. No criminal law can be fairly or effectively enforced unless it commands a popular consensus. Yet, the consensus which supported the marijuana laws from 1915 to 1965 evaporated as soon as the prohibition encountered the rigors of public dialogue. This is not to say that prohibition lacks the support of a numerical majority. The point is that utility or propriety of a criminal law is not measured in votes but in shared values. Price controls and other regulatory devices derive their legitimacy from the support of a majority, however transient; but outright criminal prohibitions, particularly those involving private behavior, derive their legitimacy from congruence with more enduring normative precepts. The fact that one-third of the voting population of a major state (California) actually registered electoral opposition to marijuana prohibition definitively establishes the evaporation of the marijuana consensus." All recent public opinion polls demonstrate that at least a quarter of the public affirmatively opposes criminalization and another quarter supports the use of a small fine as the maximum penalty for possession. Meanwhile, an increasingly smaller fraction of the public affirmatively supports the current prohibition. What other criminal law can be named which is opposed by such a substantial segment of public opinion? Undoubtedly, marijuana prohibition does not command the minimum amount of public support necessary to sustain and reinforce a criminal prohibition.

As a result, the law suffers disobedience and ridicule. In view of the fact that millions of Americans use marijuana, it appears the criminal justice system operates selectively, unfairly and without confidence. And the moral force of the criminal law wanes with each undetected or unenforced violation. Criminal justice simply cannot be achieved when conviction of a crime is perceived to be an injustice not only by the defendant but by large segments of the public and by the participants in the system itself.

Our society normally employs the criminal justice system to apprehend and punish those persons who have committed certain classes of acts which the general society believes to be deserving of punishment. We then utilize discretion at various points in the system to mitigate the implications of this presumptive judgment. Thus, depending on the culpability of the individual offender, we may forego prosecution or avoid a punitive sentence. Where the marijuana laws are concerned, however, the presumption has become precisely the opposite. Since the larger society generally may not view its marijuana offenders, who are overwhelmingly young, as morally culpable and deserving of punishment, the effort is now made to select from the near half-million persons who are arrested each year, those few who should continue to be processed through the system.

Our police, our prosecutors, and our courts—sworn to uphold and enforce the laws of this nation—have been confronted with a population of lawbreakers alien to the ordinary process of the criminal justice system. Thus, the system has responded by contorting itself. The discretion ordinarily exercised—whether or not to arrest, whether or not to prosecute, whether or not to convict, and whether or not to incarcerate—has been employed to determine which of these unlikely defendants should remain in the system : and as the need for discretion increases, so does the likelihood of selectivity and inequality.

The punitive instinct simply is not there. In most cases effort is directed not at securing the symbol of wrongdoing—the conviction—but avoiding the stigma of a criminal record for the youthful, or otherwise unlikely, offender.

The net result is that the police, prosecutors and the courts aim to ameliorate the consequences of criminalization. The police respond unsystematically and inconsistently; the prosecutors decline to prosecute, sometimes with screening guidelines, most of the time without them; and the judges respond according to their own views of the offense and of their role as judges. Police, prosecutors and courts roam at large in a sea of discretion because the public doesn't want to punish but the legislature doesn't want to repeal.

In November, 1974, Washington, D.C., U.S. Attorney Earl J. Silbert attempted to respond to this situation by formalizing what his office had been doing every day for several years—ref using to prosecute marijuana simple possession cases. His decision to articulate these guidelines and expose them to public visibility comports with the recommendations of all the leading criminal justice experts. This type of guideline regarding the decision not to prosecute tends to regularize the otherwise haphazard exercise of discretion by the prosecutors and by the police.

Mr. Silbert's decision was undoubtedly the correct one if the objective is the preservation of the integrity of the law and the efficient allocation of limited criminal justice resources. Yet the vociferous public response to his announcement indicates that much more than marijuana use or even marijuana prosecutions, is on the minds of those who oppose changing the marijuana laws. The opponents of decriminalization are opposing what they view as more fundamental changes in American society. They are afraid that saying that marijuana use is no longer a crime would signify a breakdown in the moral order.

But this is too large a burden for the marijuana laws to bear. This society now pays too high a price for this symbol of social stability, especially when the use of marijuana is of such minor social consequence. As the Commission said in 1972, "the fundamental principles and values upon which the society rests are far too enduring to go up in the smoke of a marihuana cigarette."

IV.

Whatever it is that society gains by deterring marijuana use cannot begin to justify the heavy price we now pay for its mistaken use of the criminal sanction. In recognition of this central fact, the National Commission recommended outright repeal of the criminal proscription of consumption-related behavior. But other approaches have been offered to preserve the "preventive" benefits of a legal prohibition while reducing the costs of criminalization summarized above. The first is desuetude and the second is the "civil" fine.

Desuetude   

To the extent that the mere existence of a criminal prohibition, credible or not, functions as a "moralizing" preventive influence, it is conceivable that society could reap some of the benefits of criminalization, with little lost, simply by leaving     the law on the books and failing to enforce it or enforcing it only sporadically."

This approach is in effect for adultery, of course. Thurman Arnold once observed that laws proscribing adultery and other consensual sexual conduct "are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals."

However legitimate this use of the criminal law may be for behavior like adultery, which touches the core of our public morality, it has almost a comic quality in reference to marijuana use. Marijuana use is a matter of minor public consequence, as the Commission emphasized in 1972. The law is no longer defended on the intensely moralistic grounds which characterized its days as a "killer of youth" and a stepping-stone to both heroin and a life of debauchery. Such a blatant insult to the rule of law should surely not be tolerated in the name of reinforcing norms whose moral supports have long since fallen away.

The Civil Fine

The only defensible alternative to full depenalization of marijuana use is the substitution of a civil sanction for possession in public.

The National Commission considered this alternative in 1972, concluding :

Another means of symbolizing the discouragement policy which has been suggested is the imposition of a civil fine on those possessing marijuana outside the home for personal use. Under such an approach, a fine would be levied and processed outside the criminal justice system. Essentially, possession of marihuana would be the equivalent of a traffic offense in those jurisdictions where such an offense is not criminal.

Such a scheme would accomplish little more than that achieved under a partial prohibition scheme. Warrants would presumably not be issued for searches of private residences, and possession offenses would be detected only by accident or if the offender uses the drug in public. The more direct way to confront such behavior is a penalty against public use.15

The Commission's position is a sound one: the civil fine is not an essential ingredient of the discouragement policy, its enforcement would consume administrative resources unjustified by its deterrent value,16 and it would be a convenient tool for harassment of unconventional street people. The Commission concluded that all legitimate state interests can be served by appropriate prohibitions of public use.

It has become clear, however, that reform is an incremental process. The state legislatures are attracted to the presumed deterrent value of the civil sanction, and its potency as a symbol of social disapproval. For this reason, most reformers do not oppose civil fine proposals under state law. And the states have slowly been moving in this direction.

In this regard, I should note that a civil sanction for marijuana use is in keeping with a significant modern trend. Commentators and public officials have consistently lamented the phenomenon of "overcriminalization"—the tendency to attach a criminal sanction to any and all disapproved behavior.

Although the statutory label varies, an increasing number of states have adopted the recommendation of the American Law Institute's Model Penal Code, in 1962, to establish a category of offenses which do not give rise to the civil disabilities attending conviction of a crime. Some call it a "petty offense" or an "infraction" but most call it a "civil violation." One of the principles underlying this reform is that the criminal sanction should be reserved for morally reprehensible conduct and should not be diluted by application to conduct without serious social consequence.

Marijuana use, of course, is the perfect candidate for classification as a "violation," as several legislatures have recognized. The problem of marijuana use is not unique from a sanctioning standpoint. There are many examples of behavior that society wishes to prohibit but which are not serious enough to warrant the criminal sanction. Sometimes the law has the perfect word for the occasion—in New Jersey, the non-criminal offense is called a "nuisance violation." In my opinion, that sums up the issue perfectly : marijuana use, under present circumstances, is a nuisance, not a disaster; if there is to be a sanction, it should be formulated in keeping with the minor social consequence of the offending conduct.

V.

To summarize, then, marijuana, as currently used, does not present a public health problem in the United States. Indeed, it is a matter of exceedingly minor social impact. On the other hand, the marijuana laws—which in effect respond to a fly with a baseball bat—are generating disastrous social effects and merit immediate and substantial reform.

The marijuana laws are unjust because they make criminal a morally neutral behavior with no measurable adverse social effect. When enforced, even by arrest alone, they impose severe sanctions on otherwise law-abiding citizens.

The marijuana laws are unfair because, given the incidence of marijuana use and its dispersal throughout all sectors of society, their enforcement is inevitably selective and is susceptible to abuse in individual cases.

The marijuana laws are inefficient or costly because they divert criminal justice resources from matters of more pressing social significance. The time and energy devoted by police, prosecutors, judges, probation officers and correctional officers to the detection and processing of marijuana cases and the punishment of marijuana offenders would be more wisely and productively spent in the prevention and punishment of crime against person and property.

But the most compelling reason for changing the marijuana laws is their disastrous impact on the law as an institution. Criminalization of the marijuana user has severely wounded the legal system, has eroded public confidence in the administration of criminal justice and has made a mockery of respect for law.

1. Hereinafter, "possession" will refer to possession of small amounts for personal use and to casual, non-profit distribution of small amounts. The two activities are functionally equivalent, as the Commission, the Congress, and many other legislatures have recognized. See MARIHUANA COMM'N REPORT 157-58.

2. Id. at 138-46, 161-67.

3. The only debatable issue is whether marijuana ought to be legitimately available in a regulatory system for use as an intoxicant or whether, instead, the prohibition of cultivation and distribution outside medical channels should remain in force. My own opinion is that a regulatory approach is, over the long term, a preferable implementation of a discouragement policy. However, it is apparent that serious consideration of this approach is premature. The immediate priority is decriminalization of possession. Once this has been done, the Congress and the state legislatures should initiate serious investigations into the alternative regulatory approaches. See generally, THE MARIHUANA CONVICTION 299-304.

4. See MARIHUANA COMM'N REPORT 116-17 (Final Report 1973), for the comparative effects of psychoactive substances.

5. This is not necessarily an obvious conclusion. The connection between mere use and drug-related risk may not be close enough to warrant a discouragement policy toward recreational use of marihuana. See MARIHUANA COMM'N REPORT 131-35 (First Report 1972); see also MARIHUANA COMM'N REPORT 147, 205-08 (Final Report 1973). In this connection, marijuana should be contrasted with substances having a greater reinforcement potential, such as tobacco cigarettes on one extreme or heroin on the other.

6. None of this is to say that society should not be concerned about that small percentage of marijuana users who consume this drug heavily. What is crucial to recognize, however, is that virtually all of these individuals are deeply enmeshed in a drug-using lifestyle, and they consume many substances, both licit and illicit, in addition to marijuana. The National Commission and the various federal policy-making bodies have all agreed that the main task of drug abuse policy is to reduce the prevalence of those intensified or compulsive patterns of drug use which impair the individual's ability to function in society. But the important point here is that the criminal prohibition of marijuana possession plays virtually no role in this effort which is why it should come as no surprise that decriminalization has been endorsed by the two physicians who have occupied the top drug abuse post in the United States.

7. See generally, the Uniform Drug Dependence Treatment and Rehabilitation Act, especially § 412. See also MARIHUANA COMM'N REPORT 243-77 (Final Report 1973); BONNIE AND SONNENREICH, LEGAL ASPECTS OF DRUG DEPENDENCE (CRC 1974).

8. See generally, ZIMRING & HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL (1973).

9. See Heller, A Conflict of Laws: The Drug Possession Offense and the Fourth Amendment, 26 OKLA. L. REV. 317 (1973).

10. See the discussion at pages 32 and 33 infra.

11. See, e.g., Menard v. Mitchell, 420 F.2d 436 (D.C. Cir. 1970); Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974).

12. Half the state statutes bar from public employment persons with criminal records of one kind or another; the other half authorize the administrators in their discretion to deny employment to persons with prior criminal records.

13. See R.J. BONNIE & C.H. WHITEBREAD, THE MARIHUANA CONVICTION 281.

14. This approach was proposed editorially by the Los Angeles Times in 1972. See THE MARIHUANA CONVICTION, supra note 13, at 282-84. Compare the ABA Standards on Criminal Justice which legitimize police and prosecutorial discretion not to enforce laws like the marijuana possession offense. Standards on the Urban Police Functions §§ 3.1-.4, 4.1-.3; Standards on the Prosecution Function §§ 3.4, 3.9.

15. MARIHUANA COMM'N REPORT 159.

16. As noted earlier, if violators are fined for every detected violation, the deterrent value of the civil sanction may approach, or even exceed, that of a sporadically applied criminal sanction.

* This chapter is a modified version of testimony delivered to the Subcommittee on Alcoholism and Narcotics of the United States Senate Committee on Labor and Public Health and Welfare on November 20, 1974, and published in Marijuana Research and Legal Controls, (G.P.O. Comm Print 43-8880).

< Prev		Next >