Chapter 5 CONGRESS AND DECRIMINALIZATION: A SYMBOLIC ROLE*

* This chapter combines two essays written in 1975. The first was originally submitted to the Subcommittee on Juvenile Delinquency of the United States Senate Judiciary Committee to supplement testimony delivered on May 5, 1975. See Marijuana Decriminalization (G.P.O. Comm Print No. 68-8010). The second essay originally appeared as a column in the Washington Post entitled "Loosening the Laws on Marijuana" published on January 24, 1976, and is reprinted with the permission of the Washington Post Company.

I.

Soon after the National Commission issued its report in 1972, Senators Hughes and Javitts and Congressman Koch introduced parallel legislation to implement its recommendations. Nothing happened in 1972 or 1973. Then in 1974, after Oregon adopted the civil fine, the Hughes-Javitts and Koch bills were revised accordingly.

Perceiving some momentum being generated for decriminalization, Senator Eastland convened a subcommittee of the Judiciary Committee (which doesn't have legislative jurisdiction over drug penalties) for the announced purpose of giving a national forum to opponents of change. The subcommittee's Hearings transcript is called "The Hashish Epidemic in the United States."

To offset and neutralize the Eastland sideshow, Senator Hughes' Subcommittee on Alcoholism and Narcotics of the Labor, Public Health and Welfare Committee (which has no legislative jurisdiction over criminal penalties) held hearings in November, 1974, to call national attention to the Oregon "experiment." That same month, the Director of The National Institute on Drug Abuse attracted national publicity when he endorsed the civil fine approach.

Then, in May of 1975, three years after the Commission had issued its report, the Juvenile Delinquency Subcommittee of the Judiciary Committee (which does have legislative jurisdiction over the penal provision of the Controlled Substances Act) held hearings. The Chairman, Senator Bayh (who was launching a tentative bid for the Democratic Presidential nomination) endorsed the Oregon approach and convened a panel of witnesses to assess its efficacy.

But the Ford Administration continued to oppose decriminalization, no vote was ever taken on the Javitts' bill, and the issue receded once again.

In the House, meanwhile, nothing was happening at all. Florida's Rep. Rogers, Chairman of the Subcommittee on Health and Environment of the Interstate and Foreign Commerce Committee, was a member of the National Commission and had specifically endorsed the civil fine approach. Since his subcommittee has jurisdiction over drug legislation, many assumed that the circumstances were favorable for House action. But Rep. Rogers, arguing that the subcommittee had more important matters to attend to, kept the decriminalization bills bottled up.

Then Jimmy Carter was elected. As a candidate Carter had endorsed marijuana reform, and, as President, he appointed as his Special Assistant Dr. Peter Bourne, a leading proponent of decriminalization. At first, however, the Administration stopped short of pushing for adoption of a federal decriminalization bill, apparently on the ground that the new President's political capital should not be squandered on a matter of such little actual consequence to the national government. After this initial hesitation, however, Dr. Bourne affixed the presidential imprimatur to reform of the federal law in March of 1977—more than 5 years after the National Commission submitted its report to President Nixon.

Meanwhile, the Senate Judiciary Committee was completing its work on S. 1437, the Criminal Code Reform Act. For the first time since the Commission's Report, a congressional committee actually voted on the decriminalization issue, approving a modified version of the Oregon scheme. Then, on January 30, 1978, the Senate adopted S. 1437, including the marijuana provision.

Unfortunately, the House Committee was uninterested in comprehensive criminal code reform and H.R. 6869 (the House version of S. 1437) never made it out of committee in the 95th Congress.

Thus, federal criminal code reform may not be the vehicle for marijuana decriminalization after all. Yet, the House leadership continues to show no inclination to amend the Controlled Substances Act. It also seems clear that members of the House would just as soon avoid any up-or-down vote on the marijuana issue.

Of course, the need for federal action may be diminished by its largely symbolic importance; measured by direct impact on people's lives, repeal of the unenforced federal possession penalties is a matter of relative insignificance. Congressmen and senators may well ask themselves : Why take any political risk for so little apparent substantive purpose?

The two essays which follow attempt to make the case for national action. Section II emphasizes the federal law's role as a model for state action and explores the various statutory devices available to the Congress. Section III punctuates these assertions with an exclamatory critique of the Ford Administration's attempts to provide an affirmative justification for federal inaction.

II FEDERAL LAW AND MARIJUANA POSSESSION

This essay aims to establish the context for Congressional action by identifying the national interests affected by marijuana use and by the current penalties against this behavior.

National Policy Toward Marijuana Use

For present purposes one must make four assumptions regarding national policy toward marijuana use and implementation of that policy by the federal government.

First, the overall objective of national policy is to minimize the consumption of marijuana for non-medical, non-scientific purposes, and to curtail the availability of the substance outside authorized scientific or medical channels.

Second, federal law will continue to prohibit importation, cultivation and distribution1 of the substance with narrowly defined exceptions for research and scientific purposes ; if medical uses are established, it is assumed that regulatory provisions of the law will be strictly applied to limit the conditions of legitimate medical availability.2

Third, the prohibitions against importation, cultivation and distribution outside the authorized channels will continue to be enforced by federal officials, with priority being placed on substantial commercial activity. In short, it is assumed that enforcement efforts will remain allocated as they are now, with primary federal competence in the contexts of smuggling and wholesale distribution, while state and local personnel concentrate on retail distribution.

Fourth, the formulation and application of legal sanctions for consumption-related activity will remain a matter primarily for state and local determination. While the national government has the constitutional power to reach the personal possession of marijuana obtained outside the authorized channels,3 and exercised this power in the 1970 Controlled Substances Act, the actual responsibility for applying legal sanctions to consumption-related behavior lies with local police enforcing state laws and local ordinances. This is in keeping with the operational meaning of federalism—that behavior with primarily local effects should be regulated by local government. The public consequences of consumption-related behavior (possession, use, casual non-profit distribution, being under the influence) inevitably come to the attention of local police; for this reason it is not surprising that the federal government has consistently left enforcement of the "simple" possession laws to the states and localities despite the fact that this same behavior violates federal law as well.

The National Interest in State Law and Local Enforcement

This is not to say, however, that the federal government is without interest in the manner in which state and local governments choose to respond to consumption-related behavior. Indeed, authoritative National Commissions4 have thrice recommended non-criminal approaches to possession and use of marijuana, thereby attesting to the depth and breadth of national concern. The locus of this national concern, as a matter of political and historical reality, has been the disastrous impact of this criminal prohibition on the criminal justice system and the perceived injustice of its application to individual violations.

These concerns also have a constitutional dimension. The 14th Amendment establishes national standards of fairness in the administration of criminal justice and also imposes substantive limits on the type of conduct which may be proscribed and on the severity of sanctions which may be imposed. If the courts or Congress determine that these standards are being offended by state and local law and practice, corrective national action is indicated.

We begin with the clearest cases of national limits on state efforts to implement a policy of discouraging marijuana use. In the effort to curb the "spread" of marijuana use, the state surely may not make it a crime to associate with a person known to be a marijuana user, even though this is probably a most effective means for curbing the initation process. Such a law would undoubtedly violate the free association aspects of the due process clause.5

Similarly, the state probably may not seek to maximize the deterrent value of the legal threat by prescribing a long mandatory prison term for simple possession. Such a penalty would be unconstitutionally excessive under emerging Eighth Amendment doctrine.6 Nor may the state search every person in a particular public place, or in a certain kind of vehicle, or wearing a particular type of clothing, on the ground of the enhanced likelihood of marijuana possession among such persons. Such enforcement behavior would offend several constitutional principles. So too would the systematically selective application of the possession laws to offenders of a particular racial or ethnic background or a particular social class ; this would violate the equal protection clause.

It is clear, then, that the judicial branch of the federal government will enforce national standards of criminal justice, procedural fairness and personal privacy, invalidating state and local marijuana enforcement policies which violate section 1 of the Fourteenth Amendment. And it is also clear that the Congress, under section 5 of the Fourteenth Amendment has the authority to impose further limits on the range of state and local enforcement choices in order to protect these important nationally-defined values of fairness, privacy and justice. Katzenbach v. Morgan, 384 U.S. 641 (1966).

Within this context, neither the executive nor the legislative branches of the national government can be oblivious to the wide diversity of enforcement policies in the 50 states and their political subdivisions. Nor can they ignore the impact of 400,000 annual marijuana arrests on the administration of criminal justice or resulting disrespect for law. Nor can the national policymakers ignore the subjectivity of the process by which these offenders are chosen from among the millions of marijuana users for application of criminal sanctions, and by which some of these are convicted and some are not, and by which some of these are jailed and others not. Indeed, Congress might even conclude that the uneven application of local possession laws actually subverts rather than aids the national discouragement policy by increasing the visibility of marijuana use, inflating consumer demand and eroding respect for law.

These national concerns justify and invite national efforts to influence the formulation of state and local law regarding consumption-related activities. Congress might easily conclude that satisfactory pursuit of the discouragement policy, effective protection of fundamental standards of criminal justice and a sensitivity to the right of privacy all require a non-criminal sanctioning structure for consumption-related behavior (including possession for one's own use as well as casual, non-profit distribution). Although Congress might determine that the national objectives do not require drastic measures undercutting state responsibility/ it might wish to influence state and local decision-makers to adopt a civil sanction for these offenses. One mechanism for doing so would be by symbolic legislative action which would simultaneously serve the national interest and preserve local prerogatives.

Alternative Congressional Actions

The primary value of congressional action would be symbolic. Because the federal authorities do not enforce against consumers the extant misdemeanor provision, substitution of a non-criminal sanction would not actually reduce the social costs of criminalization. Moreover, the issue of federal competence is highlighted by the recognition that any offense so petty as to demand only a civil sanction should not be in the federal criminal code anyway.8 The more direct federal action would be outright repeal of the possession offense, even if the national policy-makers preferred that the state and local governments substitute a civil sanction.

Be that as it may, the federal government could symbolize its preference for the non-criminal sanction by amending the Controlled Substances Act to substitute a civil fine for the present misdemeanor penalty" The historical experience with the penalty provisions of federal drug laws (in 1951, 1956 and 1970) suggests that the state legislatures are heavily influenced by congressional action.18

Another legislative context for modifying the federal marijuana penalty is the current effort to enact a comprehensive federal criminal code. The National Commission on Reform of Federal Criminal Laws (Brown Commission) recommended in its 1971 Report that possession of marijuana be an "infraction" (section 1824) which was defined as a non-criminal offense (section 109 (e) ) for which imprisonment would not be authorized (section 109 (s) ). The federal code reform effort may ultimately be successful although the House of Representatives seems uninterested in a comprehensive revision similar to that passed by the Senate during the 95th Congress—the senate bill (S. 1437) included a provision classifying possession of 30 grams or less of marijuana as a "criminal infraction."

Two points should be noted in connection with these options regarding modifications of federal law. First of all, there are many other provisions of federal law under which prohibited conduct is punishable by non-criminal "civil" fines. In connection with its proposal (section 1006) that "regulatory offenses" ordinarily be regarded as "infractions," the Brown Commission surveyed the provisions of existing federal law. Some examples of conduct punishable by civil fine are violation of regulations concerning railroad passengers and employees (46 U.S.C. sections 155 and 156), failure by railroad, pipeline carriers and motor carriers to keep and submit records (49 U.S.C. sections 20 (7) (a), 322 (h) ), false advertising of seeds (7 U.S.C. section 1596) and failure to file motor carrier rates (49 U.S.C. section 322 (h) ).

The Brown Commission's working papers elaborate on the rationale for distinguishing between regulatory offenses and "traditional" offenses :

Criminal law has always differentiated between two kinds of punishable behavior. On the one hand, homicide, rape, robbery and the other common law crimes are universally recognized outrages and threats to common security. Common morality forbids such behavior, and there is little possibility of innocent transgression. Commission of offenses of this sort evidences a serious disregard for the rights of other individuals, and identifies the offender as dangerous because of his lack of inhibitions and distorted system of values. Traditionally, offenses of this first type have been designated "mala in se," that is, "evil in themselves," in contrast with the other category of offenses, "malum prohibitum," that is, "bad because forbidden."

The regulatory statutes, which are the concern of section 1006, belong in the "malum prohibitum" class. The behavior is not immediately recognizable as evil or dangerous, and does not necessarily identify the actor as immoral. In a complex modern society, there are hundreds of thousands of legal commands and prohibitions, violation of which may incur criminal liability. The motor vehicle laws offer the best examples : driving over the speed limit or without a license, failure to carry a registration card or a safety inspection certificate, parking in a prohibited zone, passing a stopped school bus, and a host of others. The conduct of businesses is often minutely controlled by statute and by rules and orders issued by administrative agencies. . . .

There are other touchstones by which to distinguish regulatory offenses, in addition to the distinctions between malum in se and malum prohibitum. It is characteristic of regulatory controls that they are prophylactic in purpose.

The prophylactic purpose means that the rules are designed to prevent harms from occurring, rather than to punish perpetrators of actual harms. If the forest rules forbid or restrict campfires, it is to cut down even remote possibilities of conflagration. The rule may prevent ten perfectly safe fires in order to avert the possibility of one unsafe fire. It makes no difference what precautions a particular camper takes with his fire. . . So, also, rules against conflicts of interest by public servants inhibit many innocent relationships in order to forestall corruption by a few. The fact that prophylactic controls inevitably affect many more law-abiding people than evil-doers dictates a policy of relatively low maximum penalties for regulatory offenses."

These observations are equally applicable to prophylactic prohibitions of all marijuana possession. The recreational use in which the great majority of marijuana possessors engage is private, inoffensive, morally neutral and without direct social consequence. But possession offenses proscribe all consumption-related behavior in the interest of preventing the injurious behavior which might occur while a person is "under the influence" of the substance, and of preventing the potential social harms associated with widespread heavy use. It is clear, then, why the Brown Commission also recommended that marijuana possession be classified as an "infraction" together with "non-willful" regulatory violations.

One type of congressional action which would symbolize the decriminalization policy and yet serve a meaningful statutory purpose would be to include the civil fine provision in the
federal criminal code, but limit its applicability to violations committed on federal enclaves. This device would adapt the law to the realistic reaches of federal competence ; while removing the superfluous federal possession offense, it would also indicate congressional preference for the civil sanctioning concept by applying it to violations prosecuted by federal officials. (Compare the many provisions of the proposed federal criminal codes—Brown Commission draft and S. 1437— which pertain to offenses of a purely local nature and are therefore applicable only to violations committed on federal enclaves.)

III DECRIMINALIZATION AND DIPLOMACY*

* This essay was written in January of 1976.

During the summer of 1975, then Attorney General Edward Levi stated to the Chicago Tribune that the Ford Administration would continue to resist the decriminalization of the possession of marijuana for personal use on grounds of "symbolism," arguing that these reforms could cause other countries—Mexico in particular—to question the seriousness of this nation's commitment to prevent traffic in drugs. In turn, his argument went, Mexico and other countries might be less forthcoming in our bilateral efforts to "clamp down" on the production of illicit drugs, especially heroin, and their importation into this country.

This argument is the federal government's last line of defense against what has become an overwhelming case for decriminalization. Evidently federal spokesmen no longer contend—as they did when enacting marijuana prohibition in 1937—that cannabis use represents a serious threat to the public health, safety and welfare. Nor do federal authorities continue to espouse the escalation hypothesis so popular in the 1950's and 1960's—that marijuana use might lead to the use of drugs which do present such harm.

In 1972 and 1973, when scientific authority weighed in against exaggerated descriptions of marijuana's harmfulness, defenders of the status quo, including President Nixon, began to assert that changing the marijuana laws might have a domino effect, and over time would poison the attitudes of the American people toward the use of all psychoactive substances. Where there was certainty—all illicit drugs are bad —there now would be ambiguity. "The line against the use of dangerous drugs is now drawn on this side of marijuana," said Mr. Nixon in March 1973. "If we move the line to the other side and accept the use of this drug, how can we draw the line against other illegal drugs? Or will we slide into an acceptance of their use as well?"

The Ford Administration apparently recognized the limitations of this symbolic argument; indeed it had to backtrack in light of this nation's ambivalence toward use of alcohol—an intoxicating drug more harmful than marijuana by any criterion—and in light of the fact that some 15 million Americans use marijuana recreationally without harm to themselves or others. But Mr. Levi's statement showed that the government had concocted a new symbolic argument —he says that ameliorating a domestic law under which some five hundred thousand young Americans are arrested every year will somehow have a deleterious effect on the behavior of the governments of other nations. The State Department apparently believes that Mexico and Turkey will doubt the seriousness of our efforts to curb the international traffic in illicit drugs, particularly heroin, just because we refuse any longer to stigmatize our young people as criminals for possession of a joint.

I do not mean to ridicule the diplomatic aspects of domestic drug policy. But federal officials cannot be serious when they maintain that decriminalization can reasonably be regarded as a significant shift in our policy. The position recommended by the National Commission on Marihuana and Drug Abuse in 1972 and being so fervently sought by representatives of the organized bar, organized medicine, Consumers Union, the National Education Association, the National Council of Churches and so on, is not that this nation adopt a policy of encouraging or approving the use of marijuana ; indeed the reformers continually stipulate, as did the National Commission, that the appropriate policy is to
marijuana. Nor do the reformers seek any modification of the essentially prohibitory approach toward the availability of marijuana; "decriminalization" does not, for example, refer to any modification of the laws against the commercial production, importation and distribution of marijuana, all of which are felonies under both state and federal law.

Changes in our domestic policy toward supply might have international repercussions ; we are, after all, a signatory of the Single Convention on Narcotic Drugs. But the issue now on the public agenda—and the one to which Attorney General Levi was referring—is the wisdom of making criminals out of marijuana users, not marijuana traffickers.

Even if marijuana use is decriminalized, the U.S. government could continue to attempt to reduce the flow of illicit drugs into this country and to reduce trafficking in these substances within the borders of the United States ; and the administration could devote to these tasks those law-enforcement dollars commensurate with the priority which it attaches to supply-reduction. But it is not only ludicrous, but also disingenuous, to argue that the arrest and prosecution of an individual for possession of marijuana for his own use is an essential ingredient of this nation's anti-narcotics policy. To the contrary, the price that this nation pays by arresting five hundred thousand individuals each year for possession of marijuana for their own use is exorbitant. To refuse to pay it any longer would not signal a retreat from current policy but would rather reinvigorate this nation's commitment to reduce the social cost of drug abuse.

Federal spokesmen probably know this. Even if we do not view the criminalization of marijuana use as an integral part of our anti-narcotics strategy, they would respond, the Mexicans do—or at least Mexican officials say they do. Here we reach the bottom line. If the Mexicans really do view marijuana use and heroin trafficking as being of a piece, it is only because this nation convinced them, fallaciously, of this connection in the 1950's and early 1960's. Moreover, whether the Mexicans translate this misguided attitude into their domestic law is certainly none of our concern; does the State Department really argue that we should permit the Mexicans to impose their imprudent politics on us? It does seem ironic that a criminal prohibition rooted in this nation's post-World War I prejudice against Mexican immigrants is now being perpetuated because of the Mexican government's objection to its repeal.

1. "Distribution" is intended to encompass "possession with intent to distribute" as well and should be so construed throughout this statement.

2. The important point is that even if marijuana were to become legitimately available for medical purposes (in addition to research and scientific purposes), the issues concerning implementation of the discouragement policy toward non-medical use would be the same.

3. This has not always been so clear, of course. The Harrison Act and the Marihuana Tax Act were framed as regulatory measures, using complex presumptions in lieu of outright possession offenses, precisely because of the doubts about the constitutionality of direct regulation and prohibition of purely local conduct. See United States v. Doremus, 249 U.S. 86 (1919).

4. The National Commission on Reform of the Federal Criminal Code (1971) ; The National Commission on Marihuana and Drug Abuse (1972) ; The National Advisory Commission on Criminal Justice Standards and Goals (1973).

5. The state and lower federal courts are now grappling with the broader argument that the private possession prohibition is itself unconstitutional, offending the right of privacy and depriving the user of liberty without "good reason" (i.e., without "due process of law"). See Griswold v. Connecticut, 381 U.S. 479 (1965); Stanley v. Georgia, 394 U.S. 557 (1969) ; Roe v. Wade, 410 U.S. 113 (1973).

6. Constitutional challenges are being levied not only against mandatory jail terms, People v. Sinclair, 387 Mich. 91, 194 N.W. 2d 878 (1972) , but also against any jail term at all. Conceivably a disproportionality argument may be made against the criminal stigma itself.
7. The factors described in the text may be of sufficient weight to support unprecedented federal legislation under § 5 of the Fourteenth Amendment pre-empting the field or establishing maximum penalties for state law. See generally, MAIUHUANA : A SIGNAL OF MISUNDERSTANDING, Appendix Volume II, at 1135-44 (1972).

8. State legislators have apparently been attracted to the "civil" fine because of its presumed deterrent value and its potency as a symbol of social disapproval. But the reasons offered in favor of the civil fine concept under state law are not applicable under federal law.
Surely no one really expects DEA agents to begin issuing citations to persons in possession of marijuana cigarettes and ordering them to appear before federal magistrates. The very image is almost comical, and illustrates the absurdity of continuing to make possession of marijuana a federal offense.

9. A provision of the bill before Senator Bayh's subcommittee during its 1975 hearings (S. 1450) indicated that the drafters anticipated that through administrative edict, possession of marijuana might become an offense in name only. This showed clearly that the federal reform was aimed not at marijuana users but at state legislatures.

10. See generally, BONNIE & WHITEBREAD, THE MARIHUANA CoNvicnoN 204 et seq. (1974).

11. Schwartz, Regulatory Offenses, WORKING PAPERS OF THE NATIONAL COMMISSION ON REFORM OF THE FEDERAL CRIMINAL CODE 403-17 (1971).