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Marihuana, A Signal of Misunderstanding - Table of Contents
Marihuana, A Signal of Misunderstanding - Table of Contents

The Report of the National Commission on Marihuana and Drug Abuse

I. Control of Marihuana, Alcohol and Tobacco

History of Marihuana Legislation*

1960-1970: NEW LEGISLATIVE APPROACH

From the mid-fifties to the mid-sixties, federal activity in marihuana and narcotic law enforcement was relatively stable. The number of offenders apprehended and convicted in both areas remained constant (U.S. Courts, 1956-1964).

However, in the early and mid-sixties a new phenomenon was occurring. Drug abuse began to spread. It no longer confined itself to the ghettos and certain socioeconomic and ethnic groups; the new users were the sons and daughters of the middle class. It began striking home at the average American and became a national, major issue of concern (Rosevear, 1967: 117-131; U.S. Bureau of Narcotics, 1966: 40).

The new middle class use of marihuana induced significant medical inquiry into the nature of the drug and spurred a new legislative approach. One commentator stated:

Nobody cared when it was a ghetto problem. Marihuana-well, it was used by jazz musicians or the lower class, so you didn't care if they got 2 to 20 years. But when a nice, middle-class girl or boy in college gets busted for the same thing, then the whole community sits up and takes notice. And that's the name of the game today. The problem has begun to come home to roost-in all strata of society, in suburbia, in middle-class homes, in the colleges. Suddenly, the punitive, vindictive approach was touching all classes of society. And now the most exciting thing that's really happening is the change in attitude by the people. Now we have a willingness to examine the problem as to whether it's an experimentation, or an illness rather than 'an evil' (New York Times, Feb. 5, 1970: 14).

Congress initially acted by passage of the Drug Abuse Control Amendments of 1965 (Public Law 89-74,1965). This legislation established a Bureau of Drug Abuse Control within the Food and Drug Administration and created criminal, misdemeanor penalties for the illegal manufacture and sale of depressant and stimulant drugs and hallucinogens.

The dramatic increase in the use of marihuana and other drugs during the latter 1960's was a matter of high public visibility. In response, President Johnson offered Reorganization Plan No. 1 of 1968 (H. Doe. No. 249,1968). This reorganization was effective on April 8, 1968 and placed the Federal Bureau of Narcotics (of Treasury) and the Bureau of Drug Abuse Control (of FDA) in the Department of Justice and designated it the Bureau of Narcotics and Dangerous Drugs.

What had been obvious with the passage of the 1965 Drug Amendments became glaring with this reorganization, that is, the tremendous disparity in penalties for violations involving dangerous drugs as opposed to narcotics and marihuana. As a result of increased medical and scientific inquiry, LSD and several other drugs 'were acknowledged as being more powerful hallucinogens than marihuana.

To compound the disparity, tetrahydrocannabinol (THC), the major active ingredient in marihuana, was placed under controls whereby someone in unauthorized possession of THC was subject to no penalty, but someone in possession of marihuana was subject to a minimum mandatory penalty of two years imprisonment (Federal Register, 1968: 14880). Congress then changed the possession penalty, tinder the Drug Abuse Control Amendments, to a misdemeanor and increased the penalties for sale or manufacture of LSD and the other controlled drugs to up to five years (Public Law 90-639, 1968).

Nevertheless, a great disparity regarding penalties for these substances still existed. The atmosphere for change was ripe. Adding pressure to the situation was the criminalization of increasing numbers of young persons whose sole crime was possession of marihuana for their own use.

In late 1968, the newly formed Bureau of Narcotics and Dangerous Drugs drafted legislation which would nationalize control of the drugs under the Bureau's jurisdiction. The proposed law vested on the commerce clause rather than on the taxing powers.

The change in authority was prophetic because the Leary decision, which was handed down by the Supreme Court on May 19, 1969, held that the order form procedure necessary to meet the requirements of the Marihuana Tax Laws, forced an individual to incriminate himself in violation of the Fifth Amendment (Leary v. U.S., 1969). Ostensibly, this decision left BNDD with no marihuana possession law and was another factor in evidence of the need for a revision of the law.

This new bill , H.R. 13742, covered the regulation of narcotic drugs, "dangerous drugs" and marihuana. It was transmitted by President Nixon on July 14, 1969.

Emerging from this legislation was an overall balanced scheme of criminal penalties. Minimum mandatory offenses were essentially abolished and the offense of possession of a controlled substance for one's own use was made a misdemeanor. Further, in first-offense, simple possession cases, the court was given the discretion to place a defendant on probation, for up to one year. If, at the end of the probation period, the defendant bad not violated any of the conditions of the probation, his conviction could be expunged.

The same misdemeanor penalty and opportunity for first offender treatment was provided for the distribution of a small amount of marihuana for either: (1) no remuneration; or (2) the cost of the drug.

This provision was included in recognition of the large number of such transactions which take place among youth and in recognition of a phenomenon which surfaced as a substantial challenge to the traditional picture of the national marihuana trade. Legislators had formerly stereotyped the "seller" as the vicious criminal pushing his wares for high profit and felt that extraordinarily harsh penalties were justified for sellers (Narcotics Legislation Hearings, 1969: 4).

But several studies showed that the structure of marihuana traffic bore little or no relation to the traditional stereotype. One survey of 204 users found that 44% had sold to friends at least once. Many casual users sold to leave themselves enough profit to cover the amount of their own use (Goode, 1969: 7). Under the new Act, they would not be punished as distributors.

The new legislation also made a distinction between marihuana and narcotic drugs. Marihuana was placed in a category with hallucinogenic drugs and their difference from narcotics was emphasized by the difference in penalties as follows:

Maximum sentences

  Marihuana and other non-narcotic controlled substances Narcotics
  lst offense 2nd offense lst offense 2nd offense
Simple possession:*        
Years 1 2 1 2
Dollars 5,000 10,000 5,000 10,000
Unlawful distribution, possession with intent to distribute, manufacture, importation or exportation:        
Years 5 10 15 30
Dollars 15,000 30,000 25,000 50,000

* Distribution of small amounts of marihuana for no remuneration is treated the same as simple possession.

The bill was passed by Congress (and signed into law by President Nixon) on October 27, 1970, as the Comprehensive Drug Abuse Prevention and Control Act of 1970.

In conjunction with this new federal law, a uniform state act was drafted by the National Conference of Commissioners on Uniform State Laws and approved by them as the Uniform Controlled Substances Act at their annual conference August 1-7, 1970.

The following statement in the preface of the Act explains its purpose:

This Uniform Act was drafted to achieve uniformity between the laws of the several states and those of the Federal Government. it has been designed to complement the new federal narcotic and dangerous drug legislation and Provide and interlocking trellis of Federal and state law to enable government at all levels to control more effectively the drug abuse problem.

The Uniform Act does not recommend penalties except with respect to possession for one's own use. For such offenses, the Conference recommended that it be treated as a misdemeanor.

To date, 26 states and three territories have adopted the Act in its entirety or in a varied form. Currently, 10 to 15 states are considering it.

The most recent chapter in the legal history of marihuana appears in other pages of this Appendix. The appointment of the National Commission on Marihuana and Drug Abuse and the issuance of its Report are themselves significant events from an historical point of view.


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