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An Analysis of Marijuana Policy

National Research Council of the National Academy of Science, 1982


Current federal and state marijuana laws are in part governed by international treaty. The major federal law relevant to marijuana is the Comprehensive Drug Abuse Prevention and Control Act of 1970, which repealed all prior federal legislation and reduced federal penalties for possession and sale. Although marijuana possession and sale are still prohibited, possession has been reduced from a felony to a misdemeanor offense; the maximum penalty for a first offense is $5,000 and one year's imprisonment. The Act also provides for conditional discharge, by which first offenders found guilty of simple possession or casual transfer (which is treated as simple possession) may be placed on probation for up to one year (Congressional Digest, 1979).

The Uniform Controlled Substance Act of 1970, drafted by the National Conference of Commissioners on Uniform State Laws, was designed to make state laws more compatible with the new federal law. Like the federal act, the Uniform Act reclassified marijuana as a hallucinogen rather than a narcotic and reduced the penalty for p05session from the felony to the misdemeanor level; a majority of the states have adopted the Uniform Act. Eleven states have withdrawn the criminal sanction from possession for personal use. In these states, arrest has been replaced with a traffic-ticket type of citation, and a small fine is the sole allowable penalty. About 30 states include some provision for conditional discharge of first offenders, and about a dozen of them provide for all records of the offense to be expunged. The Alaska Supreme Court ruled in 1975 that possession for personal use by adults at home was protected by the constitutional right to privacy and hence was not subject to any penalty (Rosenthal, 1979).

State penalties for second-offense possession and for selling marijuana are extremely variable. (See National Organization for the Reform of Marijuana Laws and Center for Study of Non-Medical Drug Use, 1979, for summary tables of state marijuana laws.) Sale is almost always a felony, with maximum sentences ranging from two years to life, although casual transfer, or "accommodation," is sometimes exempt from felony treatment. All but 15 jurisdictions punish cultivation as heavily as they do sale; the Uniform Act includes the two in the same classification (manufacture), with the same penalty provisions.

Federal prohibition of small-scale possession is virtually unenforced. At the March 1977 House of Representatives hearings on decriminalization, the chief of the criminal division of the Department of Justice testified that the federal government no longer effectively prosecutes the use of marijuana, "nor do we, under any conceivable way, in the Federal Government have the resources to do so" (Select Committee on Narcotics Abuse and Control, 1977:13). In terms of its effects from a law enforcement point of view, the present official federal policy of complete prohibition does not differ in fact from a policy of prohibition of supply only. Complete prohibition is the federal law, but partial prohibition is the practice. However, the law, even though partly unenforced, has probably had a restraining influence on the willingness of states to adopt policies of less than complete prohibition. The states traditionally have followed the federal lead in drug abuse legislation, although they are not legally required to do so (see the testimony of Jay Miller, American Civil Liberties Union, to the Select Committee on Narcotics Abuse and Control, 1977). In summary, in most states and according to federal law, U.S. marijuana policy is one of complete prohibition--that is, prohibition of both supply and use.

Major alternatives to complete prohibition include prohibition of supply only--called partial prohibition--and regulation.* Prohibition of supply only means having no or only civil penalties) for use, possession, or, sometimes, "casual transfer" of small quantities of marijuana, while having criminal penalties for manufacture, importation, or commercial sale of marijuana. Regulation means not only eliminating penalties for use but also allowing controlled production and distribution.

Within each of the three broad policy options--complete prohibition, prohibition of supply only, and regulation--numerous subsidiary policy choices exist. For example, a policy of complete prohibition necessitates decisions about the resources to be devoted to enforcement, the appropriate penalties to be imposed for violations, and whether marijuana should be made available for any medical uses. Under a policy of prohibition of supply only, decisions must still be made about penalties and permitted medical uses. In addition, one must also determine how to distinguish between users and suppliers; whether cultivation should be permitted; how stronger preparations of the cannabis plant, such as hashish, should be treated; whether to criminalize small-scale casual transfers, made with or without payment; and what should be done about certain specific behaviors, such as the public use of marijuana and the operation of motor vehicles under the influence of the drug. Under a policy of regulation, some of the issues to be decided are the type of control system (e.g., state monopoly or licensed sale), the rules as to potency and quality, and appropriate penalties for violation of the system's rules.

*In this discussion, we use the terms "complete prohibition," and "prohibition of supply and use" interchangeably. We also use the terms "partial prohibition," "prohibition of supply only," and "decriminalization" as equivalent. We generally prefer the terms "partial prohibition," or "prohibition of supply only" since many people seem to regard decriminalization as the equivalent of legalization or regulation--which it most certainly is not. (The policy of partial prohibition has also been called the vice model.) Finally, we use "regulation" and "legalization" as equivalent terms.

The variety of choices within each of the broad policy options suggests that none can be characterized in a monolithic way. Some regulatory systems could be so stringent as to have results similar to prohibitory laws: e.g., a regulatory system that raised the price drastically above what the illegal market charges. Similarly, lack of enforcement could strongly reduce the impact of a prohibitory option. As we have already noted, this latter effect has already occurred in some jurisdictions in which the law provide8 for complete prohibition but users are not in fact prosecuted.


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