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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


The states have primary responsibility for enforcing the existing proscriptions against possession for personal use. Their present efforts are designed mainly to keep marihuana use contained, and in private. Such an enforcement policy is consistent with our social policy approach, and is an appropriate exercise of the states' obligations to maintain public order. So while we see no need for criminal sanctions against possession for personal use or against casual transfers, we recommend a number of provisions for confining marihuana use to the home.

The first point is that even marihuana possessed for personal use is subject to summary seizure and forfeiture if it is found in public. This concept is now applicable under federal law which we commend also to the states. In our view, the contraband feature symbolizes the discouragement policy and will exert a, major force in keeping use private.

Another means of symbolizing the discouragement policy which has been suggested is the imposition of a civil fine on those possessing marihuana 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.

A further problem with the civil fine approach lies in the area, of non-payment of the fine. With traffic tickets, or with civil fines levied against industrial polluters, society can compel compliance by withdrawing its permission to engage in regulated activity. For example, it can revoke the motorists' license to drive or the polluters' license to do business within the state. In short, the state has remedies beyond the criminal law to achieve its policy goal. The same would not be true for the marihuana user and enforceability of the statute would ultimately require court action.

*See the views of Commissioners Rogers, Carter and Ware expressed in the footnote on pages 151-153.

As we have suggested, a central feature, of our statutory approach at the state, level would be a vigorously enforced prohibition of public use. No intoxicant should be used in public, both because it may offend others and because the user is risking irresponsible behavior if he should be under its influence in public. Moreover, where marihuana is concerned, continuing societal disapproval requires that the behavior occur only in private if at all. Public use, under the proposed scheme, would therefore be punishable by a fine of $100.

We also recognize the need for some prophylactic measure for anticipating distribution, even though there may be no intent to sell for profit. To this end, and in order to deter public use, possession and transfer, we have drawn a line at one ounce of marihuana. Possession in public of more than this amount would be punishable by a fine of $100.

For these same reasons, we believe the states should prohibit all transfers outside the home, whether or not for remuneration. A transfer for profit would be a felony, as under present law. A casual transfer of a small amount would be punishable by a fine of $100.

Taken together, the contraband feature, the proscriptions of public use and public possession of more than an ounce (even if for personal use) and the prohibition of public transfers will reflect the discouragement policy underlying the entire, scheme.

The remaining set of recommendations alms at irresponsible behavior under the influence of marihuana. Whatever the precise legal scheme employed, these provisions should be included.

First, the "drunk and disorderly" statutes presently in force in the states are useful tools for maintaining public order. We would suggest similar statutes in the case of marihuana, punishing offenders by up to 60 days in jail, a fine of $100, or both. Law enforcement authorities must have a means to halt antisocial behavior exhibited incidental to marihuana use.

The second aspect of irresponsible behavior is the operation of automobiles, other vehicles, or any potentially dangerous instrument while under the influence of marihuana. Such behavior is gross negligence in itself, risking harm to others unnecessarily. In addition to penalizing a person who "drives under the influence" as a serious misdemeanant, we would impose absolute civil liability on anyone who harms the person or property of another while under the influence of marihuana.

Finally, no one should be able to limit his criminal accountability by alleging that he was under the influence of marihuana at the time of the crime. Under both federal and state law, the defendant should not be able to negate the mental element of "specific intent," which some offenses carry, by pleading that he was under the influence of marihuana and was therefore unable to have formed such an intent. Unlike many users of heroin, the user of marihuana is not physically dependent on the drug. The use of the drug is usually a matter of choice. Although we believe on the basis of available evidence that there is no causal connection between marihauna use and crime, we would under no circumstances allow a person to escape the consequences of his actions by hiding behind the cloak of marihuana use.


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