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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


Having discussed our recommended scheme at the federal and state levels, we think it useful to answer some objections we anticipate will be raised. Possible objections are:

1. Partial prohibition is not a sufficient reflection of the discouragement policy.

2. Partial prohibition is logically inconsistent.

3. A possession penalty is necessary for effective enforcement of sale proscriptions.

4. Partial prohibition won't "work" for marihuana any more than it did for alcohol.

5. A possession offense is essential as a device for detecting problem users.

6. Retention of a possession offense is required by our international obligations.

7. A firm distinction should be drawn between less potent and more potent preparations.

1. The Partial Prohibition Approach Is a Sufficient Reflection of the Discouragement Policy

To those who would argue that a criminal sanction against use is a necessary implementation of an abstentionist policy, we need only respond that this country has not generally operated on that assumption. We would be astounded if any person who lived during the 1920's was not aware of a definite governmental policy opposed to the use of alcohol. Yet, only five states prohibited possession for personal use during Prohibition. The failure of the 18th Amendment, the Volstead Act and 43 state prohibition acts to criminalize private possession certainly did not signify official approval of or neutrality toward alcohol use.

As we pointed out in Chapter 1, our nation has not generally seen fit to criminalize private drug-related behavior; only in the narcotics area was possession made a crime and marihuana was brought within the narcotics framework because of unfounded assumptions about its ill effects. We think it is time to correct that mistaken departure from tradition with respect to marihuana. As during Prohibition, the drug will remain contraband, and its distribution will be prohibited.

Even as late as 1965, an abstentionist drug policy was not thought to require prohibition for personal use. At that time, Congress enacted the Drug Abuse Control Amendments, bringing LSD, amphetamines and barbiturates under federal control. National policy was clearly opposed to use of the hallucinogens and the non-prescription use of amphetamines and barbiturates, yet Congress did not impose a penalty for possession. Whether or not Congress' subsequent decision in 1968, to impose such a penalty was appropriate is an issue we will cover in our next Report after analyzing the individual drugs controlled. The important point now is that such a penalty is not a necessary feature of a discouragement policy for marihuana, regardless of its, propriety for other drugs.

  1. The Partial Prohibition Approach Is Not Logically Inconsistent

It will. be, argued that a law which permits a person to acquire and use marihuana but does not permit anyone to sell it to him for profit is logically unsound. We do not agree. If we had recommended a social policy of approval or neutrality toward use, partial prohibition would indeed have been illogical. However, under a discouragement policy, such a, scheme is perfectly consistent.

Under partial prohibition, use is discouraged in three main ways. First, law enforcement authorities will make a concerted effort to reduce the supply of the drug. If a person wishes to use marihuana, he will have to seek out a person to sell it to him; and if his seller is in the business of distributing marihuana for profit, the seller is violating the law.

Second, the user will have to confine his disapproved behavior to the home. If lie uses the drug in public, he has committed an offense; if lie possesses it in public, it may be summarily seized as contraband.

Third, continuing efforts will be made by educators, public health officials, and official government spokesmen to discourage use. Realizing that educational efforts are not always successful, we would hope for a sound program. In any event, the law should be an ancillary rather than a focal consideration.

There is nothing theoretically Inconsistent about a scheme which merely withdraws the criminal sanction from a behavior which is not immoral but which is disapproved. The individual is being allowed to make his own choice. Hopefully, he will choose not to use marihuana. If he chooses to do so, however, he will have to do so discreetly and in private. Apart from its ultimate possession by the user, however, all marihuana-related activity is prohibited. The drug is contraband from its initial growth, through its harvest and distribution. It ceases to be contraband only when possessed and used in the home.

3. Prohibition of All Possession Is Not Essential to Prohibition of Sale

The other side of the "inconsistency" objection is the argument by law enforcement officials that they cannot adequately enforce proscriptions against sale without a possession penalty. We disagree. We have already explained that enforcement of a possession offense to some extent impedes the effort to reduce supply. Possession cases are generally regarded in the law enforcement community and by judges and prosecutors as "cheap" cases. Few seriously contend that prosecution of possessors reduces supply.

Some persons argue in response that the law should remain on the books as a tool not against the possessor but against the seller. They say that a possession offense is helpful in three ways. First, a prosecution can be used as a bargaining tool to encourage the possessor to reveal his source; this is called "turning an informant." Second, the police may know that a person is a seller, but may not be able to prove either sale or intent to sell, so they can at least charge such suspected sellers with simple possession.

Third, a corollary of the second argument is that the possession offense provides a useful tool in the "plea bargaining" process. That is, a seller may plead guilty to the lesser offense of possession, now generally a misdemeanor, instead of running the risk of trial and conviction of the more serious offense of sale, generally a felony. The prosecution may accept such a "bargain' if it is uncertain of the strength of the case, to avoid delay in sentencing, to reduce judicial backlog or in return for information from the defendant.

From an institutional standpoint, we do not find these arguments persuasive. First, if a possession offense is on the books, possession is a criminal activity. We oppose criminalizing conduct when its purpose and intent is directed not toward that conduct but toward another behavior.

In answer to the informant argument, the marihuana user (and this may not be true of other drugs) is simply too low in the distributional chain to help very much. As indicated earlier, the National Survey shows most users receive their marihuana from their friends or acquaintances either as a gift or at cost. Rarely is the time spent on him or on his "source" a fruitful allocation of the law enforcement official's time. Also, it is institutionally improper to hold the criminal sanction over a person to force him to talk, when we otherwise would be unwilling to use that sanction.

As to the "lack of proof" and "plea bargaining" arguments, we believe they challenge a fundamental tenet of our criminal justice system. That is, under our law, a person is not guilty just because the police think he is guilty; his offense must be proven beyond a reasonable doubt to a judge or jury. If a possession offense were not on the books, the police would have to gather enough evidence to convict the seller of sale or of possession with intent to sell, and the prosecution would have to convince the judge beyond a reasonable doubt. The defendant, suspected seller or not, is entitled to due process of law.

The "lack of proof" argument is nothing more than a plea for an "easy out" when the police do not have enough evidence. This simply represents an admission that law enforcement officials want a possession offense which they can apply selectively, to people whom they think, but cannot prove, are sellers. Such a notion is inconsistent with the basic premise of our system of equal treatment under the law. If "simple" possession is not an offense for some, it is not an offense for all. A "known seller" is entitled to the same rights as anyone else: criminal conduct must be proved beyond a reasonable doubt. We do not favor coddling criminals. We do insist, as did the framers of the Constitution, that suspected criminal behavior be proved.

4. That Partial Prohibition Did Not "Work" For Alcohol Doesn't Mean It Won't For Marihuana

Prohibition failed to achieve its avowed purpose of eliminating the use of intoxicating liquors from American life. Risking an oversimplification, we think two reasons were essentially responsible for this failure: the unwillingness of a substantial minority, and probably a majority, of the American public to discard a habit deeply ingrained in their lives; and the inability of the law enforcement community to eliminate the bootlegging traffic which catered to this continuing demand.

As we have repeatedly noted, one of the reasons for adoption of a partial prohibition approach is uncertainty about the extent to which marihuana use is ingrained in American culture. Indeed, adoption of partial prohibition is the best way to find out for sure. If the social interest turns out to be only transient, this policy will prove particularly appropriate.

Similarly, an increase in marihuana use may be prevented by a concerted effort to eliminate major trafficking, the scope of which is presently only a small fraction of Prohibition bootlegging. We do not pretend that supply of a plant so easily grown can be eliminated. However, an intensive effort to eliminate commercial criminal enterprise should have some impact on the extent of use.

5. The Possession Offense Is Not Required as a Detection Device

In addition to their deterrent and symbolic functions, the drug possession laws serve a third function not shared by most other criminal laws. Like laws against public drunkenness, they facilitate societal detection of drug-dependent persons. Ideally, such persons, although apprehended by law enforcement authorities, may be detained for purposes of treatment and rehabilitation.

Whatever the merits of such an argument for the opiates and alcohol, such an argument does not apply to marihuana. Only a very small percentage of marihuana users are drug-dependent or are in need of treatment. Their dependence is generally upon multiple drug use, not on marihuana. In any event, the existence of such a small population does not justify retention of the possession offense as a detection device.

6. International Obligations Do Not Require Maintenance of a Possession Penalty

Some have raised the possibility that removal of simple possession criminal penalties would contravene this country's obligations under the Single Convention on Narcotic Drugs (1961), to which it became a signatory in March, 1967. We do not believe the provisions of that Convention compel the criminalization of possession for personal use.

Nowhere in the Convention are its Parties expressly required to impose criminal sanctions on possession for personal use. Article 4 requires Parties to "take such legislative and administrative measures as may be necessary . . . . to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs." Penal sanctions are not necessarily included in this formulation.

Article 36, which deals specifically with penal provisions, requires each party to adopt "such measures as will ensure" that the listed activities, including possession, "shall be punishable offenses." Some have argued that this provision requires prohibition of personal use.

However, from a comprehensive study of the history of the Convention, the Commission has concluded that the word "possession" in Article 36 refers not to possession for personal use, but to possession as a link in illicit trafficking. This interpretation is bolstered also by the failure to include "use" in Article 36 even though it has been included in Article 4.

Finally, we must consider Article 33, which provides that "the Parties shall not permit the possession of drugs except under legal authority." This Article also does not require the imposition of any sanctions on possession for personal use. Experts consulted by the Commission have indicated that this Article may, nevertheless, require that the Parties to limit possession and use to medical and scientific purposes. To affirmatively allow drugs to remain in the possession of persons for non-medical use would in this view contravene Articles 4 and 33 to read together. From this perspective our international obligations may require the classification of marihuana, as contraband. For this reason, together with a desire to symbolize our discouragement policy in a clear way, we have included the contraband feature in our legal implementation scheme.

In conclusion, our reading of the Convention is that a Party may legitimately decide to deal with non-medical use and possession of marihuana through an educational program and similar approaches designed to discourage use.

7. No Potency Distinction is Necessary at the Present Time

Following the approach taken in the Comprehensive Drug Abuse Prevention and Control Act of 1970, we have drawn a line between the natural cannabis plant and the synthetic tetrahydrocannabinols. "Marihuana" is defined as any and all parts of the natural plant. That we choose this approach for purposes of statutory implementation does not mean that we are unaware of the difference between the less potent and more potent preparations of the natural plant.

As noted in Chapters 11 and III, the highest risk of cannabis use to the individual and society arises from the very long-term, very heavy use of potent preparations commonly called hashish. No such pattern of use is known to exist in the United States today.

The predominant pattern of use in the United States is experimental or intermittent use of less potent preparations of the drug. Even when hashish is used, the predominant pattern remains the same. In addition, whatever the potency of the drug used, individuals tend to smoke only the amount necessary to achieve the desired drug effect.

Given the prevailing patterns of use, the Commission does not believe it is essential to distinguish by statute between less potent and more potent forms of the natural plant. Reinforcing this judgment are the procedural and practical problems attending an effort to do so.

If the criminal liability of ail individual user is dependent on the THC content of the substance, neither lie nor the arresting officer will know whether he has committed a crime until an accurate scientific determination is made. Even if such accurate determinations were feasible on a large scale, which is not now the case, such after-the-fact liability is foreign to our criminal laws.

Under present circumstances, then, a statutory line based on potency is neither necessary nor feasible. We emphasize also that any legal distinction is an artificial reflection of the Commission's major concern: the heavy use of the drug over a long term. The most emphatic element of official policy should be to discourage such use, especially of the more potent preparations. Unfortunately precise legislative formulations regarding the amount of the drug presumed to be for personal use do not assist this effort at all. Whether it is lawful to possess one ounce of hashish or a proportionate amount based on potency (for example, one-fourth ounce), an individual prone to use the drug heavily will do so. Society's resources should be committed to the task of reducing supply of the drug and persuading our citizens not to use it. Expenditure of police time and financial resources in an attempt to ascertain the THC content of every seized substance would make little, if any, contribution to this effort.


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