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|Major Studies of Drugs and Drug Policy|
|The Forbidden Fruit and The Tree of Knowledge, An Inquiry into the Legal History of Marijuana Prohibition|
THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION
Richard J. Bonnie & Charles H. Whitebread, II
VII. MARIJUANA USERS IN THE COURTS: 1930-1965
Having studied the evolution of legislative hostility to marijuana from a regional phenomenon with racial overtones to a nationwide paranoia, it is worthwhile to consider the fate of marijuana users in the courts during this evolutionary period. After the courts had summarily rejected the substantive constitutional arguments, appeals in marijuana cases tended to focus on three contentions particularly germane to drug violations: procedural objections arising from interrelated statutory schemes on the state and federal levels punishing essentially the same conduct; objections to police conduct intrinsic to victimless crimes; and objections to sufficiency of evidence at trial. Like their legislative colleagues, state and federal translated what they knew of the drug's mythical effects into overt hostility. Coupled with the traditionally conservative treatment afforded the rights of criminal defendants, especially in state prosecutions, this judicial hostility produced ever-lengthening sentences and few reversals.
A. Statutory Fantasies: The Complications of Federal Legislation
1. Quadruple "Jeopardy" and the "Killer Weed"
When Congress passed the Marihuana Tax Act in 1937, marijuana had already been included in the Uniform Narcotic Drug Act and every state had enacted some form of marijuana prohibition.1 In addition to its ostensible revenue-raising function, the Act was obviously designed both to deter further use of the drug 2 and to facilitate enforcement of the state laws.3 The statute assured the availability to state prosecutors of the order forms filed with the IRS at the time of payment of the tax. 4 Congress had thought that the order forms and registration requirements would develop an "adequate means of publicizing dealings in marihuana in order to tax and control the traffic effectively."5
Thus, after 1937, possession of marijuana without filing the transfer form and paying the federal tax constituted a violation of both state and federal law;- yet filing the form and paying the tax would probably not have eliminated the buyer's exposure to prosecution under state law. Indeed, compliance would probably have readily identified the buyer to state officials. To this unfairness the courts paid no heed, noting that exposure to state and federal prosecution for the same act did not constitute double jeopardy7 and that the fifth amendment did not protect defendants from prosecution for violation of state law.8
After passage of the 1956 federal narcotic drug legislation9 possession of marijuana constituted at least one, and often two, additional crimes. First, the Narcotic Drugs Import and Export Act was amended10 in 1956 to punish directly illegal importation11 of marijuana or other dealings in the drug with knowledge that it had been illegally imported. Since mere possession was sufficient evidence to convict under the Act, 12 possession without registration and order form now constituted three crimes, and compliance with the filing and tax provisions would have exposed the defendant to liability under state law and under the importation provision if the original importation was illegal. Again the courts saw no fifth amendment violation.13 Second, another provision of the 1956 package required every person addicted to or using narcotics or convicted of a violation of the narcotics or marijuana laws punishable by over one year's imprisonment to register upon leaving the country. 14 Designed to aid the Government in identifying potential smugglers. the statute was upheld, as a strict liability offense, 15 against a multitude of constitutional challenges. 16 Since penalties for marijuana possession almost uniformly exceeded one year's imprisonment during this period, a first offense possession conviction by either sovereign triggered the registration provision.
2. Statutory Presumptions
Because the federal statutes punished sale and possession of marijuana only indirectly, each had to bridge the gap between those acts and the technical crimes-tax violations and importation-related acts. As a bootstrap from the federal taxing power to a federal police power, Congress chose presumptions. Thus, under the Marihuana Tax Act, possession plus failure to produce the required forms was presumptive evidence of the criminal act-failure to pay the tax17 -and the courts had no trouble upholding this provision. 18 In addition, under the Import and Export Act possession of marijuana constituted presumptive evidence of illegal importation and of defendant's knowledge of such importation.19
Against a rash of attacks on the rationality of this presumption, the lower federal courts20 noted that the Supreme Court had upheld the same statutory language in the original Federal Import and Export Act with respect to opium 21 and that there was sufficient general knowledge that most marijuana was imported from Mexico to make the presumption rational. Although the Ninth Circuit at one time indicated that a defendant could rebut the presumption by showing that the marijuana in his possession was manicured and therefore more likely to have been domestically grown,22 that court later held that such proof was insufficient and that the defendant must also show actual domestic production. 23
B. Attacks on State Legislation
Most attacks on the state statutes focused on the vagueness of statutory terms-marijuana, however spelled, or cannabis or Indian Hemp24 -both as a scientific matter and in terms of common experience.25 Predictably, however, few state courts were of a mind to inhibit legislative proscription of the "killer weed." Due in part to greatly exaggerated conceptions about the effects of the drug26 and in part to the ease with which the mature plant is processed for the outlawed purposes,27 the courts construed these statutory definitions as broadly as possible 28 despite the traditional rule of strict construction of criminal statutes.
With the progressive increase in the severity of penalties which accompanied adoption of the Uniform Act in the 1930's and 1940's and the surge of amendments in the 1950's in the wake of the Boggs Act.29 Some problems of application arose. Interestingly enough. some courts, applied the lesser penalty where one of two penalties could be imposed.30 Similarly many courts tended to impose minimum sentences until the late 1950's when they , too, lost all sense of proportion.31
C. Procedural Defenses and Entrapment
Statutory attacks during this period tended to reflect the complicated interrelation of state and federal law and the scientific imprecision of legislative drafting. These attacks were usually rebuffed, and defendants, caught in a squeeze of judicial and legislative hostility, had few, if any, viable defenses based on whether or not they had violated the regulatory scheme. Both state and federal statutes merely required the prosecution to prove that the particular defendant was found in possession of a substance which when chemically tested was found to be marijuana. There were few tricky problems of proof, and the prosecution usually had a clear case. If these offenders were caught dead to rights on the merits, the energetic attorney had to look elsewhere for his defense.
Fortunately, the exigencies of police practice in the field of narcotics law enforcement provided a defendant's attorney with a new area of attack-procedural irregularities in the arrest and apprehension of his client. The possession and sale of marijuana epitomize the crime without a victim; neither seller nor buyer is apt to complain of the transaction. In order to promote vigorous law enforcement in this area, the police have had to use a series of undercover agents, surprise raids and often questionable search and arrest techniques. Because of the nature of the conduct they are trying to stifle, the police must intrude into a private social relationship where none of the parties wants it- thus, the police have found it essential to employ highly secretive and often patently deceitful practices. It is no coincidence that the vast developments in the law of criminal procedure-especially in the fourth amendment area-have been outgrowths primarily of narcotics and marijuana cases.
1. Search and Seizure
Today the major remedy for an illegal search is exclusion of the seized items as evidence. Some states and the federal courts have used this exclusionary rule since early in the twentieth century. However, before the 1961 decision in Mapp v. 0hio32 required all states to adopt this remedy, many state courts did not exclude illegally seized evidence. In jurisdictions without the rule, it scarcely helped the victim of an illegal search to raise the point. So, for example, in a 1945 Louisiana case, the court permitted introduction of marijuana seized without a warrant from defendant's room while he was out of town .33
Because of the scope permitted the searching officer, things were not much better in jurisdictions adhering to the exclusionary rule. In states using the rule before Mapp, the crucial issue when the lawfulness of a search was questioned was whether or not the search was reasonable under the circumstances.34 One might expect, in view of the judicial hostility toward marijuana defendants, that the reasonableness standard provided sufficient leeway for circumvention of the exclusionary rule in more than a few cases.35 Other end runs around the rule were developed in the federal system and in the states purporting to apply the rule to evidence seized in an illegal search. First, courts upheld searches if there was arguably an untainted source for seizure of the evidence. For example, a court might admit marijuana seized in a concededly illegal search where a police officer saw the marijuana before beginning the illegal search .36 Second, in order to have standing to assert the inadmissibility of seized items, one had to admit the narcotics in question belonged to hirn.37 Third, courts often permitted searches pursuant to a warrant to extend far beyond the items named in the warrant 38 under what came to be known as the contraband theory. This theory reasoned that certain items could never lawfully be possessed and belonged only to the government; thus any seizure of these items was permissible.39
In order for federal and state agents to detect narcotics traffic and use, it is essential that they infiltrate the drug culture. Obtaining this inside information may often involve police use of special employees - informers-or may require that the police become directly involved in the commission of the criminal act .40 Many defendants in narcotics cases have claimed that they were forced into sales or purchases of narcotics by the police or their agents. These charges led to the affirmative defense of entrapment, first recognized in federal courts by the Supreme Court in Sorrels v. United States.41 Since that time, the principles of the defense, as stated in that decision, were reaffirmed by the Supreme Court in Sherman v. United States .42 In Sherman, a government informer induced the defendant, who was trying to quit his use of narcotics and was undergoing treatment at a narcotics rehabilitation center, to resume his use and supply the informer. The Court held that the conduct of the police informer constituted entrapment.
The entrapment defense would seem the ideal defense tactic in marijuana cases, because so often the defendant has been apprehended due to some police informer or police trick .43 However, the theoretical and practical outlines of the defense narrowly restrict its scope and make it rarely successful. Moreover, because it may entail an admission that defendant committed the act charged 44 it is usually the last resort.
From the beginning there have been two conflicting views of the entrapment defense. The majority view has considered entrapment an exception to the given criminal statute on the ground that the legislature could not have intended entrapment to fall within the statutory definitions of the crime. With this as the theoretical justification of the defense, the inquiry focuses on the innocence of the defendant but for the police conduct. The practical question is whether the police merely supplied an opportunity for a person with a preexisting prediliction to the criminal act. In the majority view this question of fact is to be resolved by the jury. 45
Throughout the years a substantial minority position has contended that the entrapment defense should be considered a police control mechanism. Under this view, the focus is on the police and their conduct rather than on the character of the defendant. This rationale is premised on the court's supervisory powers over tile administration of justice, and the question of entrapment is one of law to be decided by the not by the jury.46
The focus of the defense on the character of the defendant and the use of usually unsympathetic juries to decide the issue have greatly hindered the successfulness of the entrapment defense. Since the defense must be raised affirmatively, the defendant bears a heavy burden in proving that he would not have committed the crime but for the police inducement. Thus, in Gilmore v. United States47 the defendant was unable to carry the burden of proving that he would not have otherwise committed the marijuana offense. A government agent approached the defendant and requested marijuana, but the jury found no entrapment and the court could not declare that there was entrapment as a matter of law.
With the entrapment defense, as with illegal searches, the court has a known lawbreaker
before it and for this reason is reluctant to free him unless there is an overwhelming
reason to dismiss the charges, As a California court stated, It is not the entrapment of a
criminal upon which the law frowns . . . . " 48 The focus upon the defendant and his
mental state, rather than a focus on the government enforcement practices and their
possible effect of creating a particular crime, places an incredible burden on the
defendant to try to convince the jury that he is otherwise blameless. The use of informers
and special agents who become friendly with those suspected of dealing in marijuana, and
the use of this friendship to try to purchase marijuana, often by supplying the cash,49
are bound to have a detrimental effect on the lay enforcement officers as well as to
assure a slight increase in the supply of marijuana which would otherwise not have entered
the trade. Nevertheless, the defense as presently structured remains virtually impossible
for the defendant to raise with any real hope of success.
D. The Pro Forma Trial
When the marijuana defendant had exhausted his motions for dismissal or suppression of the evidence and was brought to trial, he was usually in deep trouble, faced with judicial hostility, lax methods of identification, and loose standards of proof. Convictions were rarely reversed for any reason and especially not for insufficient evidence. And penalties, no matter how harsh, were never set aside.
The first line of defense in the marijuana trial often involved the defendant's claim that the substance seized from him was not really marijuana. In general, the state had no difficulty proving the substance to be marijuana. In the important case, expert evidence of chemical tests may have been introduced,50 but more commonly courts permitted the testimony of police officers,51 undercover agents and other lay witnesses52 to be sufficient to create a question of fact for the jury to decide. 53 Thus, when chemical evidence was not introduced, juries were strongly inclined to believe the policeman or a disinterested prosecution witness as against the defendant.54
This ease of identification combined with the uncritical acceptance of uncorroborated testiniony,55 produced what amounted in fact to a very low standard of proof. Thus, in a California case, People v. Janisse,56 the conviction was upheld on the testimony of teenage boys, though the defendant's co-workers testified for an alibi. The evidence of rookie police officers who later failed their civil service exams57 has been accepted over the word of the defendant. Finally, even the testimony of witnesses who stand to benefit only from the conviction of the defendant has been accepted without corroboration, whether the benefit was indirect58 or direct.59 The wisdom of allowing such testimony by itself to be legally sufficient for a conviction is doubtful.
Although in theory the state must prove the defendant's possession was knowing,60 through the use of circumstantial evidence the state usually encountered few problems in meeting its burden of proof. The state was permitted to use circumstantial evidence to link the defendant to a quantity of marijuana, but where only circumstantial evidence existed there must have been an instruction to the that all other reasonable inferences of innocence had been overcome.61 For example, behavior such as running away from police, if marijuana was found along the path run, was sufficient to link the defendant to possession 62 though mere proximity without other guilty behavior was not enough to prove possession. 63
Finally, judicial hostility to the "morally depraved" marijuana user was so strong that often judges condoned inflammatory statements by the prosecution to the jury about the nature of the drug and its users. Indeed, some judges themselves often participated in these highly emotional statements. For example, one judge in instructing a jury announced:
In the same way, direct aspersions toward a defendant's character were tolerated .65 For instance, courts overlooked prosecution comments that the defendant sold his drugs near a 'junior high school" or that drug use among teenagers must be stopped .66
In sum, then, defendants in marijuana cases had great difficulties at trial during this
period. Easy identification methods, jury acceptance of uncorroborated testimony, use of
circumstantial evidence to prove defendant's possession was knowing, and the 'judicial
participation in inflammatory statements to the jury made defense success at trial a
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Marihuana, A Signal of Misunderstanding - The Report of the US National Commission on Marihuana and Drug Abuse
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