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Marihuana, A Signal of Misunderstanding - Table of Contents

Marihuana, A Signal of Misunderstanding

The Report of the National Commission on Marihuana and Drug Abuse

Chapter V

marihuana and social policy

DISCUSSION OF FEDERAL RECOMMENDATIONS

The recommended federal approach is really a restatement of existing federal policy. From official testimony and record evaluation, we know that the federal law enforcement authorities, principally the Federal Bureau of Narcotics and Dangerous Drugs and the Bureau of Customs, do not concentrate their efforts on personal possession cases. The avowed purpose of both Bureaus is to eliminate major traffickers and sources of supply. For the most part, the federal agencies have left possession enforcement to the states. Underlying this approach is a need -to maximize the use of enforcement resources for major priorities and allow the states, in exercising their "police powers," to assume the responsibility for local activities, including possession for personal use.

By withdrawing the criminal sanction from possession for personal use we are, in effect, codifying official policy. In addition, such a scheme follows the model chosen for alcohol in the Volstead Act, and also revives the approach taken by Congress in the Drug Abuse Control Amendments (DACA) of 1965. We are in agreement with the original thrust of DACA, when Congress brought previously uncontrolled drugs, LSD, barbiturates and amphetamines, under control but did not assess criminal penalties for possession for personal use.

Instead, Congress placed on the prosecution the burden of proof that the possession was for purposes of sale. Regardless of whether or not Congress was wise in imposing a penalty in 1968 for possession for personal use, a subject we will consider in our next Report, we think the original DACA concept is enlightened where marihuana is concerned.

At the same time, present federal law classifies marihuana as contraband, and this feature should be maintained. The contraband concept serves the discouragement policy in two ways: it assists the removal of supply from the market and it symbolizes a continuing societal opposition to use. Accordingly, if a person is found in possession of marihuana in public and the government is unable to prove any intent to sell, it may nevertheless seize the marihuana and confiscate it is contraband.

The contraband provision would apply only to possession in public and would not extend to possession for personal use in the home. During Prohibition, the Federal Government and most of the states employed a similar statutory limitation. For example, the Volstead Act provided that a private dwelling could not be searched "unless it is being used for the unlawful sale of intoxicating liquor. . . ." I The impact of this contraband concept is that marihuana possessed or found in public can be summarily seized by law enforcement officials and forfeited to the state for subsequent destruction .2 The criminal justice system is not involved in the process. The individual receives no record of any kind; he simply loses the economic value of the marihuana.3

With regard to the casual distribution of small amounts of Marihuana for no remuneration or insignificant remuneration not involving a profit we are following the approach taken in the Comprehensive Drug Abuse Prevention and Control Act of 1970 which in essence treats such casual transfers as the functional equivalent of possession. In doing so, Congress recognized that marihuana is generally shared among friends and that not all people who distribute marihuana are "Pushers."*

' 39. Unlawful P0ssession of liquor or property designed for manufacture thereof ; search warrants. It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this chapter or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in [sections 611 to 631 and 633 of Title 181 and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. if it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor, and all property designed for the unlawful manufacture of liquor, shall be destroyed, unless the court shall otherwise order. No search warrant shall issue to search any private dwelling occupied as such unless it is being used for unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding 'house. 'Me term "private dwelling" shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel or boarding house. The property seized on any such warrant shall not lie taken from the officer seizing the same on any writ of replevin or other like process. (Oct. 28, 1919, e. 85, Title 11, 25, 41 Stat. 315)

'The federal and state provisions presently in force regarding the seizure and forfeiture of an automobile transporting marihuana would no longer be applicable. They would still remain in force for other controlled drugs classified as contraband.

3 See the views of Commissioners Rogers, Carter, Ware, Hughes and Javits expressed in the footnote on pages 151-156.

The accuracy of Congress' appraisal is underscored by the National Survey. When people who had used marihuana were asked how they first obtained the drug, 61% of the adults and 76% of the youth responded that it had been given to them. Only 4% of the adults and 8% of the youth said that they had bought it. When asked who their source had been, 67% of the adults and 85% of the youth responded that it had been a friend, acquaintance or family member.

The close association between the concepts of casual transfer and personal possession is also underscored by the fact that 56% of the prosecutors in our survey thought that the present law did not deter casual transfer at all or deterred it only minimally.

With regard to importation and exportation, we recommend no change in existing law and make the following observations. First, the United States must maintain its international standing and, as a member of the community of nations, this country should do everything in its power to restrict the exportation of marihuana to other countries and to penalize such international traffic.

As to importation of marihuana, the most effective way to discourage use is to cut off supply at the top of the pyramid. Recognizing that most of the marihuana consumed in the United States comes from abroad, we feel that the Bureau of Customs at the borders should have all necessary authority to halt and interdict supplies intended for consumption in this country. There has been a long-standing practice of excepting ports and borders from procedural rules applying within the United States. One example is that Customs officials are allowed to search without the showing of probable cause, even though such a showing is mandatory for searches conducted within the United States. We can see a legitimate reason for continuing this policy.

*In considering this relationship, the Senate, in the Report of the Committee on the Judiciary of the United States Senate regarding S. 3246 (a precursor bill to the new Federal law) stated:

The language "distributes a small amount of marihuana for no remuneration or insignificant remuneration not involving a profit" as contained in section 501 (c) (4) is intended to cover the type of situation where a college student makes a quasi-donative transfer of one or two marihuana cigarettes and receives 50 cents or a dollar in exchange to cover the cost of the marihuana.

Transfers of larger quantities in exchange for larger amounts of money, or transfers for profit, are not intended to be covered by this section, but rather are to be covered by section 501 (c) (2) which deals 'with unlawful distribution. This language sketches a prototype situation which the Committee had in mind; however, the wording of the Federal Act and of our recommendations is not intended to establish inflexible rules. The objective in both provisions is to distinguish between commercial sellers and casual distributors. Ultimately the courts will have the responsibility of drawing this distinction according to the evidence in individual cases. The recommended provision intentionally establishes a loose standard not tied to specific amounts of marihuana or money.

See also the views of Commissioners Rogers, Carter, Ware, Hughes and Javits expressed in the footnote on pages 151-156.



 

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