"An Approach to Marijuana Legislation" was presented at the Marijuana Symposium, at the University of California Medical Center, in San Francisco, on March 23-24, 1968, and was published in the Journal of Psychedelic Drugs 2, no. 1 (Fall 1968): 149-56. Copyright © 1968 by David E. Smith, M.D. Reprinted with minor changes by permission of the publisher and the author.

I propose to devote the bulk of this discussion to practical considerations in the control of drugs. However, it is probably useful to begin by taking a position with regard to the more abstract issue: whether or not the prohibition of behavior whose direct effects are limited to the individual should be a function of the state. Those who feel it should not be argue with respect to drug use: the individual has the absolute right to ingest whatever substances he wishes; the state has no more right to intervene with respect to the use of harmful drugs than it does with regard to harmful overeating. Those who take the contrary position argue: the harmful effects of drug use are not limited to the individual; it burdens society in a variety of ways such as drug-related crime, driving hazards, increased welfare costs to support the user and his children, and so on. Since society is thus adversely affected by drug use, opponents argue that the state is entitled to prohibit such drug use in the public interest.

The Role of the State

It is certainly clear that the very existence of government entails individual restraints. Certain individual freedoms are sacrificed in the interest of the over-all welfare of society, and in order to allow the practice of other freedoms. It is the function of the state to initiate whatever policies and laws are necessary to insure the survival and health of the society. It is conceivable to me in principle that the use of a drug could pose a sufficient threat to society such that the state would be justified in prohibiting its use. In other words, I would not arbitrarily exclude coercion against the individual user on the grounds that freedom of control over what one takes into one's body is sacrosanct or inviolable, even in a democracy such as ours, where individual freedom is prized by custom and protected by law.

I would therefore begin with the premise that the state has a broad prerogative to evolve social policy in the over-all public interest; and that limitation of the state's authority is better based on rational assessment of consequences than on resort to some "higher authority." It follows then, that just as individual freedom is said to carry with it the notion of individual responsibility, the authority to restrain individual freedom should carry the responsibility that policy be based on objective consideration of society's over-all welfare.

Assessing the Threat Posed by Drug Use

A logical place to start this discussion is with an objective assessment of the threat or benefit to society resulting from the non-medical use of various drugs. The present controversy over marijuana illustrates the gross discrepancies between facts and beliefs that can develop regarding the basic effects of a drug. This is especially true when society refuses to recognize the actual basis of the threat, and rationalizes its fears by unwarranted association of drug use with antisocial behavior in other areas.

Some of the factors that should be considered in determining the social impact of the use of a particular drug are physiological effects resulting from acute or chronic use; the tendency to produce physiological or psychological dependence—and over what period of use; the release of antisocial behavior; the effects on motor activity, especially automobile driving; and the tendency to produce long-lasting undesirable personality changes. Other factors are drug cost; ability to measure and control the drug's potency; convenience of mode of intake (oral or intravenous); ability for self-titration to control effect; protection against overdose; availability of antidote; specific effects attainable without unpredictable side effects; predictable duration of drug action; hangover or other short-term properties that may affect work or other activities; ability to return to normalcy on demand; and ability to detect the presence of drug (for monitoring drivers or for other purposes ).

Especially for recreational drugs such as marijuana and alcohol one of the most neglected questions is the individual benefits that motivate the user to take the drug. Some of the possible positive features that should be considered are aid to pleasure, relaxation, and aesthetic appreciation; enhancement of appetite and other senses; enhancement of interpersonal rapport, warmth, love, emotionality; variety of experience, newness of perception and thinking; and enhancing the enjoyment of vacations, weekends, or other periods devoted to recreation, rest, and pleasure.

Other effects of non-medical drug use may have more far-reaching ramifications for society in general. Does the drug use provide an emotional escape-valve similar to institutionalized festivities employed by other cultures? What is its effect on personality, life style, aggressiveness, competitiveness? Does it affect military effectiveness through increased passivity? Would its adoption by large numbers affect the direction of society, e.g., would the use of peyote change the direction of the Indians by creating a pan-Indian movement ( the hippies would advocate a similar cure for the ills of our present society).

Are Drug Laws an Effective Deterrent?

In considering the legal sanctions against the use of a drug, three related questions need to be considered at the outset.

1. How many persons would abuse the drug if legal controls were removed or not adopted?
2. Do the laws deter use, or perhaps encourage it, as has been suggested with relation to rebellious youth?
3. Is the drug abuser a sick person who, if one drug is prohibited, will find anothef drug, or some equally destructive behavior as a substitute?

More specifically, each of these questions needs to be examined in the context of criminal sanctions against both the user and the distributor, as opposed to sanctions against sale only.

Clearly, if the law is protecting against a nonexisting harm, society is better off without the law. The number of persons who would use currently illegal drugs if the legal penalties were removed cannot be estimated with any reasonable degree of accuracy. The recent elimination of all laws pertaining to written pornography in Denmark, for example, apparently resulted in no ill effects. On the other hand, the strikingly higher incidence of opiate addiction among physicians over that for the general population would seem to argue that removal of the controls on opiates would result in increased use; although the higher addiction rate among physicians actually may be due to their familiarity with, and acceptance of, drugs as well as the drugs' availability.

The incidence of marijuana use as opposed to LSD use supports the position that legal penalities are by no means the overriding determiner of drug use. Most marijuana offenses are felonies; LSD use is typically a misdemeanor (depending on the state). Yet the number of persons using marijuana is several times that for LSD. While marijuana use is rapidly increasing in spite of the laws, LSD use is declining, apparently because of concern over the dangers rather than because of legal penalties.

It is interesting to speculate whether marijuana use would have spread to the middle class during 1937-1960 if the laws against marijuana had not been enacted. Since the current upsurge in marijuana use is obviously due to factors other than a change in the laws, the earlier lack of use may have been due to the absence of these factors rather than any deterrent effect of the law.

The argument that the drug abuser would simply find another means of escape or self-destructive behavior if the drug were not available is, I think, only partly correct. It does not appear, for instance, that all excessive marijuana users would have become alcoholics had their drug of preference been unavailable. It is also clear that persons are more vulnerable to the abuse of drugs at certain times in their lives, such as adolescence or highly stressful periods; and if a potential drug of abuse is unavailable at these times, an undesirable chain of events may well be avoided. Finally, since alcoholism ran result from sociogenic as well as psychogenic causes, marijuana abuse can undoubtedly follow a similar pattern.

The many factors involved, and the increasingly rapid change in cultural values, make it impossible to estimate confidently the social impact of legalizing marijuana. Probably a large number of persons who had not previously used marijuana would try it if it were legalized —if only because of curiosity generated by the recent widespread publicity. Rosenthal has suggested that persons who use marijuana to excess do so in spite of the law, and those who would use it only under legal conditions would most likely practice moderation. My own guess is that if sale as well as use were made legal, both the use and abuse would show a marked increase. It is perhaps true that some of the present day faddish use among youth would diminish, but this would probably occur anyway, since the popularity of fads and rebellions are typically short-lived.

Sanctions Against Distribution Only

There is a general consensus that the government has not only the right, but the obligation, to enforce certain practices with respect to drugs in general. These include testing, quality control, prescription system, advertising, and labeling. There is also general agreement that the government should control, or prohibit if necessary, the manufacture, importation and distribution of non-medical drugs when the net consequences of such drugs are considered harmful to society. Disagreement exists at the point where the advantages of restricting availability are outweighed by the harm resulting from the illicit supplying of the demand for the drug, such as occurred during the prohibition of alcohol. Regulation, as opposed to prohibition, permits the orderly control of potency, and the conditions under which the drug may be sold. It also permits taxation and eliminates the support of organized crime, as well as the criminogenic aspects of forcing the user to deal with illegal sources. On the other hand, prohibition of sale clearly indicates social disapproval, whereas open sale does not.

Sanctions Against Both the User and the Seller

One line of argument, repeatedly advanced by enforcement agencies, is that laws against possession are needed to obtain convictions against sale. They argue it is difficult to draw the line between possession for personal use and possession with intent to sell; the apprehension of the seller is made easier by using simple possession charges to secure the cooperation of the user against the seller; and, in the case of heroin, the user and the seller are frequently one and the same at the retail level. The Federal Bureau of Drug Abuse Control has operated for the past three years under the Dangerous Drug Law, which prohibits sale but not possession for personal use. This could provide an excellent opportunity to examine the validity of the argument that laws against the user are needed to prosecute the seller. However, if recent Administration proposals are enacted, federal penalties-will also be imposed on the user of LSD and other dangerous drugs.

Although I assume that the imposition of criminal sanctions at the user level did not fall outside the state's over-all jurisdiction on absolute grounds, there are nevertheless some very compelling arguments against such a policy. The enforcement of such laws inevitably encourages the violation of constitutional guarantees of privacy, as well as various other practices, such as informers' posing as students, hippies, or other potential drug users. The higher courts generally rule in favor of the defendant in cases where constitutional rights are violated, even when the action of the individual concerned constitutes a very real threat to society ( for instance, leaders of organized crime). Yet enforcement officers run roughshod over the rights of individuals suspected of using drugs, by means of rousting on the street and illegal search and seizure of automobiles or private homes. Although the informed defendant is often able to have evidence obtained in such a manner ruled inadmissible, he has no resource against the arresting officer except in the most blatant of violations. The net result is that enforcement officers are compelled to observe constitutional rights of many persons committing very grave offenses, but may ignore them with impunity in regard to the relatively petty offense of drug use.

Drugs That Permit Both Use and Abuse

For drugs like alcohol, marijuana, and perhaps the strong hallucinogens, the practical problem from society's point of view is that the majority may use them without harm to either the individual or society, yet these drugs do have an abuse potential for the minority. Other drugs like heroin, cocaine, amphetamines, and barbiturates (when used to produce intoxication) have few redeeming qualities to weigh against their abuse potential. For drugs that lend themselves to use as well as abuse, the problem of penalizing the majority because of the abuse by the minority is a prime issue. The Supreme Court specifically dealt with this question in a ruling made at the time of the Volstead Act:

The ultimate legislative object of prohibition is to prevent the drinking of intoxicating liquors by anyone because of the demoralizing effect of drunkenness upon society. The state has the power to subject those members of society who might indulge in the use of such liquors without injury to themselves to a deprivation of access to liquor in order to remove temptation from those to whom its use would demoralize.

On a few occasions exceptions have actually been carved out of the law to permit use of a drug otherwise prohibited. Sacramental use of wine was permitted during prohibition, and the ritualized controls of the Native American Church are considered sufficient to safeguard Indians against the abuse of peyote. More frequently, society has informally disregarded the enforcement of the law for certain groups or for certain locations. At the time when jazz musicians were virtually the only persons outside the lower socioeconomic minority groups to use marijuana, police frequently overlooked their use of drugs because they were otherwise productive and did not cause trouble. There is sometimes differential treatment on a geographic basis, with bohemian settlements largely left alone except when drug use is particularly blatant, or local political factors are evident. Other illegal activities such as prostitution, homosexuality, and gambling are also sometimes tacitly allowed in certain districts of a city. Sometimes the affluent or privileged are similarly allowed to violate the law, as in the case of gambling in private clubs or homes.

Another means of dealing with the problem of allowing use but controlling abuse is through compulsory treatment. This is currently employed to a limited extent with alcoholics. Finally, the reduction of possession offenses from felony to misdemeanor would permit much more realistic flexibility in prosecuting through legal channels.

A Congruent Drug Policy

What is especially needed is a concerted effort to produce congruency among the various drug policies and laws. What we have at present is an ill assortment of approaches that is not only lacking in consistency but often operates in clearly contradictory ways. The difficulty does not lie in defining the direction that the over-all policy should take. This may be described as protecting the health and welfare of society within the degree of limitation on individual freedom that is consistent with our political beliefs. The problem lies in the fact that much of the present incongruence is based on unrecognized attitudes and fears that must be explicitly defined before a congruent policy can emerge. This is a mammoth educational task; however, certain steps could speed up the process. One very useful move, which Joel Fort has long advocated, is to treat alcohol abuse and other drug abuse as a single problem. Once this is accomplished some of the most glaring inconsistencies must come into perspective.

For instance, if we are serious about reducing the harm caused by excessive drug use, we must examine the contributions of the massive advertising programs promoting the use of alcohol and tobbaco, and weigh this against the economic and other costs of intervening in our free enterprise system. The length to which we are capable of blindly following an economic policy at the expense of our over-all welfare is illustrated by our supplying Japan with vast amounts of scrap iron for its arms industry virtually to the day of the Pearl Harbor attack. We must ask: if public drunkenness is the manifestation of an illness to be treated rather than prosecuted, is dependency on other drugs not also an illness? We should critically examine the legal reasoning that concludes that being an addict is not a crime, but possessing the substance necessary to be an addict is a felony deserving of a five- or ten-year prison sentence. When the Narcotics Bureau argues that it has reduced heroin addiction by making it a highly expensive habit, we should weigh this result against the expense to the victims burglarized, the increased number of prostitutes, and the large profits to organized crime. We should evaluate the deterrence of the marijuana laws against the resulting alienation, disrespect for the law, and secondary deviance involving a sizeable portion of a whole generation of youth.

Our present attempts to deal with the drug problem consist of a well-established criminal law approach and the beginnings of a treatment-oriented rehabilitation program. It is not at all clear that these two approaches operate together in a congruent fashion. As Richard Blum has noted, the definition of the legal offender is precisely stated in terms of certain behavior, e.g., possession of marijuana; yet the health approach defines the drug user's condition along much broader medical, psychological, and sociological lines. The distinction is strikingly evident in the case of marijuana use, where no one as yet has suggested a treatment-rehabilitation program to parallel the legal approach. The immediate goals are also different—the task of the police is to apprehend and bring to trial a maximum number of law violators, whereas the health approach seeks to modify behavior that is harmful to the individual and society. Finally, the results may be opposed. The criminal law approach creates a deviant subculture that is alienated from and hostile to society; by contrast, the health approach encourages adjustment within society.

Lest I leave the impression that I am unalterably opposed to a punitive legal approach, I shall give an example of a situation where such a policy might be considered congruent with the goal of promoting the over-all welfare of society. For many years the number of persons addicted to heroin in England was on the order of three or four hundred. They were primarily older medical personnel or persons who became addicted through medical treatment. A social policy of maintaining the addiction through medical sources when withdrawal was considered unworkable proved quite effective. In recent years there has been a rapid rise in heroin addiction, primarily among young persons similar to the American addict, and the number of addicts is now estimated to be around 1,500. The demand for heroin is producing a black market, and there is concern that its use will spread to the dimensions observed in the United States. One possible solution might be compulsory commitment of the 1,500 persons presently addicted, and prohibition of further prescriptions for heroin through medical sources. This would effectively eliminate most demand for heroin, and hence the black market should cease to exist. With no available heroin, there would be no, or virtually no, subsequent addicts. While this is a drastic policy (from the standpoint of the present addicts ) it might still qualify as being in the best interest of society if it prevented addiction of much larger numbers in subsequent generations.

Finally, in a somewhat speculative vein, I should like to suggest that part of the lack of congruence among drug policies in the United States is due to the fact that economic and technological factors are changing at a faster rate than are cultural attitudes and values. The drug laws in this country have always been an attempt to legislate morality, although they have been justified in terms of preventing anti-social acts. These laws and attitudes evolved at a time when the Protestant ethic, and the competitive achievement-oriented value system were very much in dominance. The passive withdrawal to a life of drug-induced fantasy has been an extremely threatening concept.

Now we are told we are verging on an economy of abundance rather than scarcity; an age of automation will eliminate half or more of the labor force necessary for the production of goods; the concept of work will have to be redefined to include nonproductive pursuits that are now considered hobbies; a guaranteed annual income program will likely be in effect within five to ten years. The children of today's middle class have never experienced a depression or any appreciable difficulty in satisfying their material needs. They do not share the materialistic value system to the same extent as their parents because they have little fear of material deprivation.

There also appears to be an increasing acceptance of pleasure in its own right, rather than something that needs to be earned as a reward for hard work. The traditional American attitude towards pleasure was quite evident in the opinion recently given by Judge G. Joseph Tauro in upholding the constitutionality of the Massachusetts marijuana laws.1 In denying that the fundamental right to the pursuit of happiness is violated by the marijuana laws, he argued that such a right must be "essential" to continued liberty, as are those rights "closely related to some commonly acknowledged moral or legal duty and not merely to a hedonistic seeking of pleasure." In affirming that the state was justified in permitting alcohol and prohibiting marijuana, Judge Tauro argued that alcohol was used most frequently as a relaxant and "as an incident of other social activities," whereas marijuana was "used solely as a means of intoxication," i.e., pleasure.

If the age of economic abundance, automation, and greatly increased leisure becomes a reality, it is doubtful that these viewpoints toward pleasure (hedonistic or otherwise) will survive. Such an age would not necessarily be accompanied by increased drug usage; however, it does appear that the popularity of marijuana and the stronger hallucinogens might increase at the expense of alcohol use. The former psychedelic drugs are more compatible with an inward-turning orientation and an enhancement of sensual and aesthetic pleasures. Alcohol is more compatible with an aggressive, outward-turning and achievement-oriented society. Excessive drug use would be seen as a threat to the individual alone—not as "a threat to the very moral fabric of society." The over-all welfare of society would be much less dependent on the productivity of the individual, and the value system that demands that pleasure be earned through work would be obsolete.

In conclusion, I predict that whether or not the age of abundance arrives, social policy, with some minor reversals, will generally move in the direction of permitting greater individual freedom with respect to drug use. Society will promote the concept of allowing adults the privilege of informed decision. The crucial problem that will remain is that of protecting those who are too young to make an informed decision.

1 See above, pp. 6-7.