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Contact Information: Rev. 5/16/09
Prof. Eva Nilsen
Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215
(617) 353-3131, esnilsen@bu.edu
Essay
LIBERTY LOST: THE MORAL CASE
FOR MARIJUANA LAW REFORM
Eric Blumenson and Eva Nilsen
◊
85 Indiana Law Journal (No. 1, forthcoming 2009)
Abstract:
Marijuana policy analyses typically focus on the relative costs and benefits
of present policy and its feasible alternatives. This essay addresses a prior,
threshold issue: whether marijuana criminal laws abridge fundamental
individual rights, and if so, whether there are grounds that justify doing so.
Over 700,000 people are arrested annually for simple marijuana
possession, a small but significant proportion of the one hundred million
Americans who have committed the same crime. In this essay, we present a
civil libertarian case for repealing marijuana possession crimes. We put
forward two arguments, corresponding to the two distinct liberty concerns
implicated by laws that both ban marijuana use and punish its users. The
first argument opposes criminalization, demonstrating that marijuana use
does not constitute the kind of wrongful conduct that is a prerequisite for
just punishment. The second argument demonstrates that even in the
absence of criminal penalties, prohibition of marijuana use violates a moral
right to exercise autonomy in personal matters – a corollary to Mill's harm
principle in the utilitarian tradition, or, in the non-consequentialist
tradition, to the respect for personhood that was well described by the
Supreme Court in its recent Lawrence v. Texas opinion. Both arguments are
based on principles of justice that are uncontroversial in other contexts.
◊ Eric Blumenson, Prof. of Law, Suffolk University; J.D. Harvard Law School; Eva
S. Nilsen, Assoc. Clinical Prof. of Law, Boston University; J.D., University of
Virginia; LL.M Georgetown Law Center. We thank Patrick Shin for comments on
the manuscript, Andrew Capone, Stacey Guillory, and Kristina Mastropasqua for
expert research assistance, and the students in Prof. Nilsen’s War on Drugs seminar.
© 2009 by the authors.
2
Introduction
The federal government and thirty seven states make possession
of marijuana a criminal offense punishable by imprisonment.1
Federal law categorizes marijuana as among the most dangerous of
illicit drugs,2 and the Office of National Drug Control has generally
treated marijuana control at the top of its list of priorities.3 In recent
years, federal and state laws have resulted in the arrest of more than
700,000 Americans annually for marijuana possession, a crime that
almost 100 million Americans have committed.4
1 21 U.S.C. § 812 (2007). Under federal law, marijuana possession is punishable by
1 year in prison and a minimum fine of $1,000. 21 U.S.C. § 844 (2006). A
compilation of state marijuana laws and their penalties is available on the website of
the National Organization for the Reform of Marijuana Laws at
http://www.natlnorml.org/index.cfm?Group_ID=4516.
2 Under the federal drug laws, marijuana is designated a Schedule I controlled
substance, reserved for the drugs with the most serious potential for abuse, no
medical benefit, and no safe method of use. 21 U.S.C. § 812 (2007), detailed infra
at n.---. This status places marijuana on a par with heroin, and in a graver category
than cocaine and oxycontin, which are included in Schedule II.
3 Sally Satel, A Whiff of 'Reefer Madness' in U.S. Drug Policy, New York Times
Aug. 16, 2005 (reporting ONDCP resistance to putting as much emphasis on
metamphetamines as marijuana, its “main target,” on grounds that marijuana is a
gateway to more dangerous drugs); Ryan King and Marc Mauer, The War on
Marijuana: The transformation of the war on drugs in the 1990s, 3 Harm Reduction
Journal (No. 6, 2006), available at www.harmreductionjournal.com/content/3/1/6
(stating that “ since 1990, the primary focus of the war on drugs has shifted to low-
level marijuana offenses”); Ben Wallace-Wells, How America Lost the War on
Drugs, Rolling Stone 107, 110 (December 13, 2007). The author claims that drug
czars Barry McCaffrey and John Walters invested heavily in advertising against
marijuana, which they saw as the key to winning the war on drugs. Whether this
policy, prevelant in the Clinton and Bush years, continues under the Obama
Administration remains to be seen.
4 In 2006, there were 742,900 arrests for possession of marijuana, constituting
39.1% of the 1.9 million drug arrests. 80% of all drug arrests are for possession, not
sale or manufacture. FBI Uniform Crime Reports (2006), at Table 29. In 2005 there
were almost 787,000 marijuana arrests, 700,000 of them for marijuana possession.
FBI Uniform Crime Reports (2005).
Citing the 2006 National Survey on Drug Use and Health, the ONDCP reports that
“an estimated 97.8 million Americans aged 12 or older tried marijuana at least once
in their lifetimes, representing 39.8% of the US population in that age group.”
“Drug Facts: Marijuana”, ONDCP, available at www.whitehousedrugpolicy.gov/
drugfact/marijuana/index.htm (visited 5/19/2008, hardcopy on file with authors.) A
Time/CNN 2002 poll found a higher proportion of Americans who had used the
drug, 47%. Joel Stein, The New Politics of Pot, TIME, Oct. 27, 2002, available at
http://www.time.com/time/covers/1101021104/story.html.
3
There are good reasons to believe that these laws have been
counterproductive, as many critics have charged. Arguably,
marijuana prohibition diverts resources from more pressing drug- or
crime-control agendas, encourages discriminatory enforcement,
stymies ameliorative regulation, and consigns users to deal with
criminal drug traffickers if not lawyers, courts and jails.5 There are
many others who dispute these claims. But both proponents and
opponents of marijuana prohibition generally argue in pragmatic
terms: what will work best to achieve either “a drug free America” (in
the government’s rendition) or a reduction of harm to users (in the
reformer’s rendition)?6
Such debates are crucial elements in any examination of
marijuana law and policy, but they ignore the deeper level of
justification that may be required by restraints on individual liberty, of
which marijuana criminalization is arguably an instance. Restraints on
religious practice, for example, cannot properly be evaluated by
merely calculating the utilitarian costs and benefits; something of
greater moral weight is required to override the fundamental right to
free exercise of religion. A key threshold issue regarding the
prohibition and criminalization of marijuana use is whether such laws
implicate fundamental individual rights, and if so what kind of
grounds are required to justify doing so.
In this essay, we argue that these laws do unjustifiably infringe
fundamental moral rights. We present a non-consequentialist, civil
libertarian case against marijuana prohibition and criminalization,
based on the requirements of liberty and just punishment. Our focus
is on an individual’s moral rights – the kind of human rights that
should be reflected in law, whether they are or not. We recognize that
courts are unlikely to revisit precedents generally upholding
marijuana crimes against constitutional challenges, at least in the near
5 We present that case in our forthcoming article, No Rational Basis: The Pragmatic
Case for Marijuana Law Reform, 17 VA. J. SOC. POLICY & LAW --- (forthcoming,
2009). For other criticism of marijuana criminalization generally, see National
Commission on Marihuana and Drug Abuse, Marijuana, A Signal of
Misunderstanding (1972); MacCoun and Reuter, supra n. --- at 364; Canadian
Senate Special Committee on Illegal Drugs, Cannabis: Our Position for a Public
Policy (Sept. 4, 2002); Duncan Campbell, Ex-Drugs Policy Director Calls for
Legalization, The Guardian Aug. 13, 2008, available at
http://www.guardian.co.uk/politics/2008/aug/13/drugs.legislation
6 For two prominent exceptions, who exclusively assess the moral rights at stake in
the drug war generally, see D
OUGLAS HUSAK, DRUGS AND RIGHTS (1992), and
Michael Moore, Liberty and Drugs, in DRUGS AND THE LIMITS OF LIBERALISM 61-
109 (Pablo De Greiff, ed., 1999).
4
term.7 Our concern here, however, is what the law should be, not
whether existing law satisfies the constitutional minimum, and in
making that determination, legislators no less than judges should
attend to the claims of liberty and human rights when they may be at
stake.
*
At the outset, note that prevailing marijuana possession laws
contain two components: the ban on marijuana use (call this
“prohibition”), and the criminal punishment imposed on its users.
Prohibition need not include criminal penalties for possession; alcohol
prohibition did not,8 and the decriminalization movement seeks the
same for marijuana.
These two measures – prohibiting use and punishing users – each
implicate individual liberty, but they do so in different ways that raise
very different concerns. Prohibition in itself targets only access to the
drug and the freedoms that are lost by its unavailability, and raises the
question of whether individuals have a moral right to use marijuana.
By contrast, criminally punishing the user may confiscate his freedom
altogether, inflicts moral censure, and is justifiable only if the
offender deserves it. It is not enough that the citizenry will benefit
from punishing marijuana users, for example by deterring the drug
7 Representative cases upholding marijuana possession laws against constitutional
challenges include U.S. v. Fogarty, 692 F.2d 542, 547 (1982)(upholding the
classification of marijuana as a Schedule 1 substance on a rational basis test because
“there is no constitutional right to import, sell, or possess marijuana; the case
charged a conspiracy to distribute 26,000 pounds of marijuana); Nat. Org. for
Reform of Marijuana Laws v. Bell, 488 F. Supp. 123, 130-31 (D.C., 1980)(holding
personal use of marijuana is not a fundamental right); United States v. Rush, 738
F.2d 497, 511 (1st Cir., 1984)(rejecting claim that religious use of marijuana is
constitutionally protected); United States v. Middleton, 690 F.2d 820, 822 (11th
Cir., 1982)(same); Washington v. Balzer, 954 P.2d 931, 938 (Wash. Ct. App.
1998)(same); Arizona v. Hardesty, 1 CA-CR 06-0966, Ariz. Ct. App, July 31,
2008)(same); and a long list of state court decisions detailed in John Williams,
Constitutionality of state legislation imposing criminal penalties for personal
possession or use of marijuana, 96 ALR 3d. 225 (---). But see Ravin v. State, 537
P.2d 494 (Alaska, 1975)(holding marijuana use protected under state constitutional
privacy right).
We can, however, envision a different result in the future if attitudes
towards marijuana change, or if the Supreme Court’s recent libertarian
interpretation of the right to privacy takes root. See discussion infra at pp. ---.
8 U.S. Const. amend. XVIII (prohibiting manufacture, sale and transportation of
alcohol; repealed by U. S. Const. amend. XI); Lloyd C. Anderson, Direct Shipment
of Wine, the Commerce Clause and the Twenty-first Amendment: A Call for
Legislative Reform, 37 AKRON L. REV. 1 (2004)(possession and consumption of
alcohol remained legal during prohibition).
5
trade; the offender must have engaged in some blameworthy,
wrongful conduct that can underwrite moral and legal guilt.9 As C. S.
Lewis put it, “desert is the only connecting link between punishment
and justice.”10
Are these necessary conditions satisfied in the case of our
marijuana laws? We consider whether criminal sanctions can be
9 On the retributive principle, punishment may not be inflicted on the innocent, or
on the guilty beyond their desert, even if it will achieve a greater good for others.
Desert is usually taken to be a function of the gravity of the crime and the
blameworthiness of the criminal. That is why it is not acceptable to punish the
mother of a suicide bomber, even if it is the only way to deter future bombings. Nor
can desert be based on the mere fact that the defendant freely chose to violate a duly
passed law. Otherwise, any criminal law regime would be self-justifying, so that
criminalizing singing would justify punishing a yodeler. What is missing from both
of these cases is blameworthy conduct that can underwrite moral guilt.
Although some strict liability laws exist in a dwindling number of
jurisdictions, and arguably punish blameless conduct for utilitarian reasons, such
laws are disfavored and courts take pains to infer a mens rea requirement where
penalties include incarceration. The Model Penal Code and some states have
abolished strict liability offenses on grounds of justice. See, e.g., MPC secs. 2.02(1)
and 2.05; NJSA 2C:2-3e (New Jersey law requiring forseeability tantamount to
negligence for criminal liability). Felony murder does dispense with a moral
proportionality requirement but still requires wrongful blameworthy conduct via the
predicate felony, and although this rule survives in many American jurisdictions, it
has been severely limited in many of them by blameworthiness proxies (see, e.g.,
People v. Washington, 62 Cal. 2d 777, 44 Cal. Rptr. 442 (1965)(agency limitation);
People v. Patterson, 262 Cal. Rptr. 195, 49 Cal. 3d 615 (1989) (inherently
dangerous limitation); State v. Martin, 573 A.2d 1359 (1990)(New Jersey Supreme
Court ruling requiring more stringent causation element).
The retributive principle most centrally embodies respect for the right of
autonomous individuals to determine their futures. For extended treatment of the
principle as applied to criminal law, see IMMANUEL KANT, THE METAPHYSICAL
ELEMENTS OF JUSTICE (1965)(propounding the “formula of humanity”); Sanford H.
Kadish, Why Substantive Criminal Law-A Dialogue, 29 CLEV. ST. L. REV. 1, 10
(1980) ("It is deeply rooted in our moral sense of fitness that punishment entails
blame and that, therefore, punishment may not justly be imposed where the person
is not blameworthy."); JOEL FEINBERG, DOING AND DESERVING (1980); HERBERT
PACKER, THE LIMITS OF THE CRIMINAL SANCTION (1968); Herbert Morris, Persons
and Punishment, 52 (MONIST 475 (1968); JOHN KLEINIG, PUNISHMENT AND DESERT
(1973). There are a few theorists, however, who defend punishing the innocent if
sufficient benefits would result. See, e.g., J. C. C. Smart, An Outline of a System of
Utilitarian Ethics, in J. C. C. SMART AND BERNARD WILLIAMS, UTILITARIANISM:
FOR AND AGAINST, 69-72 (1973); M. Bagaric & K. Amarasekara, The Errors of
Retributivism, 24 MELBOURNE U.L.R. 1, 1-66 (2000).
10 C. S. Lewis, The Humanitarian Theory of Punishment, in PHILOSOPHY AND
CONTEMPORARY ISSUES 71, 72 (John Burr and Milton Goldinger, eds., 1972). Lewis
adds that when we do otherwise, “instead of a person, a subject of rights, we now
have a mere object, a patient, a ‘case.’” Id.
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justified first, and then turn to prohibition laws that simply put
marijuana beyond reach.
1. Punishing users
Is marijuana possession – or the marijuana use for which it is a
proxy -- the kind of wrongful conduct that is a prerequisite for
criminal punishment of its users? At its most expansive, the
indictment against marijuana use puts forward four types of putative
moral wrongs inflicted by the marijuana use to justify criminalizing
its users:
• that it inflicts harm on others
• that it inflicts harm on the user himself
• that it makes users unproductive members of society, and
• that marijuana use is immoral in itself.
But two questions must be asked of each claim: does marijuana
use actually perpetrate the wrong alleged, and is that kind of wrong
sufficient to justify criminal penalties? We consider each claim in
turn.
It is uncontroversial that acts that seriously and wrongfully injure
others, or seriously risk injury to others, can be criminalized. Such an
act, coupled with mens rea, is the paradigm case warranting criminal
penalties. The problem here is not one of principle but of fact: does
marijuana use wrongfully injure others?
No one claims that the private use of marijuana at home inflicts
harm to others in itself, the way a battery does. The claim must be that
the use of marijuana has further effects that do so. One way this might
be so is if marijuana regularly lead users to engage in subsequent
criminal activity. If marijuana were addictive and expensive enough
to lead users to crime to finance their habit, or stimulated aggression
in its users, one might treat marijuana possession as an inchoate
crime, much like reckless driving, possession of burglarious
implements with intent, and other acts which threaten imminent and
serious harm. But no one argues that marijuana generally causes its
users to act this way, and plenty of research shows that it does not.11
11 See, e.g., P. Hoaken and S. Stewart, Drug Abuse and the Elicitation of Human
Aggressive Behavior, 28 ADDICTIVE BEHAVIORS (2003); “The Classification of
Cannabis Under the Misuse of Drugs Act 1971,” report of the British Advisory
Council on the Misuse of Drugs (March 2002); First Report of the National
Commission on Marijuana and Drug Abuse, Marijuana: A Signal of
Misunderstanding 132 (1972).
The inchoate crime argument comes closer to the mark applied to heroin and crack
cocaine, but even use of these drugs would be difficult to fit into existing doctrine.
7
The alternative that drug war proponents invoke is downstream,
non-criminal harm allegedly caused by marijuana use. James Q.
Wilson justifies criminalization of some drugs because they result in
“more accidents, higher insurance premiums, bigger welfare costs,
and less effective classrooms.”12 We accept that marijuana use cannot
be described as wholly self-regarding because, like almost everything
else we do, it has an impact. But such downstream effects, even bad
ones, cannot justify criminal punishment alone, or we would be
punishing people for eating fatty foods and drinking alcohol.
There are at least three reasons why such indirect harms are
neither wrongful nor blameworthy in the way just punishment
requires. First, the user will surely lack the intent to cause “increased
welfare costs” or “higher insurance premiums,” and it is standard that
a crime is committed only when there is a union of proscribed
conduct and criminal intent. Second, the chain of causation from an
individual’s marijuana use to Wilson’s litany of harms is so distended
that no concept of proximate causation used in criminal law could
encompass it. And finally, causing damage to another – even with
intent to do so – is not enough to justify the criminal sanction; it must
result from a wrongful act that invades some moral right of another.13
Cases holding that the inchoate act is sufficient to constitute a criminal attempt do
so on the basis that it is a “substantial step” toward the crime, or in some states has
sufficient proximity to it; and was done with specific intent to commit the
subsequent crime. In the case of heroin or cocaine, because neither will be true
most of the time, it would be hard to justify punishing all who use the drug rather
than only those who commit subsequent criminal acts. In an earlier era Mill took
this position regarding laws against drunkenness: if an intoxicated person assaults
another, punish him for assault, not for intoxication, he argued. JOHN STUART MILL,
ON LIBERTY (1859).
12 James Q. Wilson, Drugs and Crime, in DRUGS AND CRIME 524 (Michael Tonry
and James Q. Wilson, eds., 1990). As Drug Czar, William Bennett shared Wilson’s
view, stating that “drug users make inattentive parents, bad neighbors, poor
students, and unreliable employees – quite apart from their common involvement in
criminal activity.” WILLIAM BENNETT, NATIONAL DRUG CONTROL STRATEGY 7
(1989). Nancy Reagan conveyed the same idea in more hyperbolic form when she
described all casual drug users as “accomplices to murder.” Stephen Chapman,
Nancy Reagan and the Real Villains in the Drug War, in BOAZ, CRISIS IN DRUG
PROHIBITION 105 (1991). Of course the criminalization that leaves drug production
to organized crime would make the government an “accomplice to murder” by the
same theory.
13 See.Feinberg, supra n. ---; Mill, supra n. ---. Mill wrote that, on social contract
grounds, we must “observe a certain line of conduct towards the rest.” On the side
of the line subject to state compulsion are (1) the burdens required for mutual
protection and (2) not injuring certain interests of others, “which, either by express
legal provision or tacit understanding, ought to be considered as rights.” On the
other side of the line, exempt from state compulsion, are the “acts of an individual
[that are] hurtful to others, or wanting in due consideration for their welfare, without
going the length of violating any of the constituted rights.” Id. at ----.
8
John Kennedy may have destroyed the haberdashery industry by
refusing to wear a hat throughout his presidency, but not by invading
any right. The student who Wilson thinks will perform poorly in
school invades no one’s right by doing so.
* * *
The Office of National Drug Control Policy (ONDCP) and other
marijuana criminalization defenders claim one or more other grounds
for maintaining strict criminal penalties on marijuana possession. But
the consensus that supports criminal penalties for acts that inflict
harm on others breaks down in the absence of such victimization. A
great number of Americans probably would subscribe to Mill’s “harm
principle,” which holds that “the sole end for which mankind are
warranted, individually or collectively, in interfering with the liberty
of action of any of their number is...to prevent harm to others....Over
himself, over his own body and mind, the individual is sovereign.”14
Those who disagree believe criminalization is warranted on at least
one of the following grounds:
Sins of omission. Someone who fails a friend in need, or
contributes nothing to his community, damages them by omission. If
marijuana users are in a haze, or fall prey to the so-called
“amotivational syndrome,” they may damage society by their absence
– by failing to contribute to it.
Some people may describe making these contributions as morally
virtuous but not morally required.15 Others might deem them moral
duties and the failure to perform them morally wrong.16 In any case,
it is clear that failing to contribute to one’s society is not a moral
wrong to the extent required to justify criminalization. As all criminal
law students are taught, criminalizing omissions is alien to our
criminal law tradition absent a legal duty between the actor and the
person in need (such as that between parent and child, for example).17
14 Id. at ---. For modern elaborations of the harm principle, see JOEL FEINBERG, THE
MORAL LIMITS OF THE CRIMINAL LAW, VOL. I (1984); supra n. ---; H. L. A. HART,
LAW, LIBERTY, AND MORALITY (1963); and Dennis Baker, Constitutionalizing the
Harm Principle, 27 CRIM. J. ETHICS 3 (no. 2, 2008)(arguing that wrongful harm to
others provides the only moral justification for sending people to jail).
15 JAN NARVESON, THE LIBERTARIANIAN IDEA (2001).
16 Peter Singer, Famine, Affluence, and Morality, 1 PHIL. & PUB. AFFAIRS 229
(1972).
17 Law textbooks continue to use the famous cases of Jones v. United States, 308
F.2d 307 (D. C. Cir., 1962)(reversing involuntary manslaughter conviction based on
failure to feed baby) and Pace v. Indiana, 248 Ind. 146, 224 N.E.2d 312
9
Even your failure to save someone choking at the next table with your
expert Heimlich maneuver is not a criminal act. And there are good
reasons for limiting an individual's responsibility to acts of
commission, and excluding sins of omission, having to do with
respect for a rational, self-directing person’s right to control the
essential shape of her own life.18
If failures to rescue a person in dire straits are inappropriate for
criminal sanctions as a rule, failures to contribute to society cannot be,
a fortiori; and if these are not crimes, how can it be a crime to use a
drug which, by hypothesis, just makes such a failure somewhat more
likely?
The other, alternative ground for rejecting this claim is that its
application to marijuana use is not well supported empirically. Recent
research casts doubt on the amotivational syndrome claim,19 and
numerous other activities including video games and television may
well have a greater demobilizing influence than marijuana. There are
too many counterexamples of cultural icons who used marijuana
regularly during highly fertile periods – people like Robert Altman,
the Beatles, Ken Kesey, Charles Baudelaire, Steven Jay Gould, Alan
Ginsberg, Aldous Huxley, Jack Kerouac, Norman Mailer, Robert
Parrish, Carl Sagan, and Rick Steves – and too many political
candidates for high office who have admitted to use for anyone to be
confident that the typical marijuana user is destined to lead an
unproductive existence.
Morality alone: How one lives one’s life raises fundamental
questions of value; what constitutes a life worth living has been a
central ethical question for millenia. But answering that question for
oneself is one thing; jailing those whose answers differ from the
government’s, as Bush Administration Drug Czar John Walters
suggests, is a far different one. Walters argues that marijuana
“destroys the soul,” and that the extreme “moral poverty” of its users
requires “stiff and certain punishment.”20
(1967)(reversing robbery conviction because defendant was “merely present”) to
illustrate this principle.
18 If one’s obligations extended beyond that point, there would be no end to the
obligations regarding strangers, and no space for the special responsibilities one
should feel to family, friends, community, and one’s own life. The deontological
distinctions that limit the scope of our obligations -- between acts and omissions,
and between intended and unintended consequences -- place us in control of our
own lives; and most of the time, they correspond to our everyday intuitions about
moral requirements.
19 Peter L. Nelson, Cannabis Amotivational Syndrome and Personality Trait
Absorption: A Review and Reconceptualization, 14 ICP Journal 43 (1994-95).
20 RUDOLPH GERBER, LEGALIZING MARIJUANA 57 (2004).
10
Can incarceration of marijuana users be justified on this basis?
Or on the perceived immorality of living a self-indulgent life, or
substituting an artificial paradise for one’s natural, god-given lot? The
criminal law has sometimes been used to enforce morality for
morality’s sake, as with the criminalization of homosexual acts, but
rarely anymore. There are two problems. First, too many people now
doubt that conduct can be immoral if it neither risks nor produces
harmful effects; the views of natural law theorists in an earlier era that
entirely private conduct such as masturbation is immoral mystifies
them. Second, multicultural societies now see too clearly the
illegitimacy of enforcing the morality of some on others who disagree
with it in the absence of harm to others.21 They now know that one
era’s condemnation of certain victimless behavior as immoral often
looks like sheer prejudice against a minority group in a later one.
Perhaps that is why the Supreme Court renounced its previous
decision upholding the criminalization of homosexual sex a mere 16
years later. Finding constitutional protection in Lawrence v. Kansas,
the Supreme Court wrote, “the fact that the governing majority in a
21 Joel Feinberg takes this position in his seminal work THE MORAL LIMITS OF THE
CIRMINAL LAW IV (1988). He subscribes to a modified version of Mill’s harm
principle, where “harm” refers to “those states of set-back interest that are the
consequence of wrongful acts or omissions by others.” Id., Vol. I at 215. Two who
famously disagree, and who argue that private consensual conduct not affecting
others that are deemed immoral may be criminalized, are Justice Antonin Scalia and
Lord Devlin. Justice Scalia dissented in the Lawrence v. Texas anti-sodomy case,
decrying the “effective end” of all morals legislation, explicitly including laws
against masturbation. Lawrence v. Texas, 539 U.S. 558, 586 (2003). For him,
immorality is a sufficient, and constitutional, ground for criminalization. Lord
Devlin’s argument is quite different. In response to Britain’s Wolfenden Report
(which recommended eliminating criminalization of homosexuality) Lord Devlin
wrote a celebrated essay justifying the continued criminalization of conduct deemed
immoral, not because it was so, but because looking the other way in the face of
popular outrage would lead to social breakdown. Baron Patrick Devlin, The
Enforcement of Morals (Oxford U. Press., 1965). As such, his argument was a
peculiar species of the harm-to-others argument, and perhaps a precursor of theories
propounded in recent years by “broken windows” social scientists and others who
view law as a way felicitous norms that control populations can be created or
maintained.
See also James Q. Wilson, Against the Legalization of Drugs, 89
COMMENTARY 21, 26 (FEB., 1990). Wilson argues against decriminalization of
cocaine on the grounds that “dependency on certain mind-altering drugs is a moral
issue and that their illegality rests in part on their immorality....” We treat cocaine
differently than nicotine, he writes, because “nicotine does not destroy the user’s
essential humanity. Tobacco shortens one’s life; cocaine debases it. Nicotine alters
one’s habits, cocaine alters one’s soul...” Id. But he notes that marijuana presents a
different problem from cocaine or heroin and takes no position on its
decriminalization. Id. At 23.
11
State has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice.”22
Harming one’s own welfare: Is the case any stronger if the
supposed immorality has the effect of harming one’s own welfare?
(Whether marijuana in fact does harm its users is disputed.23) Harms
to oneself may warrant state intervention, and even civil laws
prohibiting use, in certain circumstances – we take up that question
momentarily – but even in those cases, harm to oneself cannot be seen
as the type of moral wrong that should be punished criminally. An act
harmful to self interest smacks not of a bad will but of a weak one, or
of poor judgment rather than criminal intent. It is difficult to fit self-
inflicted harms into the idea of desert, which ethicist James Rachels
defines as the principle that “people deserve to be treated in the same
way that they have (voluntarily) treated others.”24
The other problem is one of the equal respect government owes
to all its citizens. Few believe that marijuana is more harmful to its
user than presently legal but regulated substances such as nicotine and
alcohol.25 If this is so, throwing only some into the maw of the
criminal justice system while leaving others free to indulge their no-
more-important pleasures cannot be justified on grounds of its danger
to the user alone.
None of the four reasons put forward for punishing marijuana
users establish that the offender has committed the kind wrongful,
blameworthy conduct that deserves criminal punishment. To quote C.
22 Lawrence v Texas, 539 U. S. 558, 560 (2003)(Kennedy., J.)(quoting and
approving Stevens, J., dissent in Bowers v. Hardwick, 478 U.S. 186 (1986)).
23 Some research studies have concluded that the casual use of marijuana is not
harmful to most users. See., e.g., First Report of the National Commission on
Marijuana and Drug Abuse, Marijuana: A Signal of Misunderstanding 132 (1972)
(finding that “experimental” or “intermittent use” resulted in little danger of
physical and psychological harm) ; Report of the British Advisory Council on the
Misuse of Drugs, The Classification of Cannabis Under the Misuse of Drugs Act
1971 (March 2002)(in which the British government’s scientific advisory council on
drug abuse reports that even heavy use of marijuana “is not associated with major
health problems for the individual or society”). Other studies have found marijuana
detrimental to physical and mental health. See, e.g., Patton, G.C. et al., Cannabis
Use and Mental Health in Young People: Cohort Study, 325 British Med. J. 1195-
1198, (2002); and studies cited in National Institute on Drug Abuse, InfoFacts:
Marijuana, available at www.drugabuse.gov/Infofacts/marijuana.html.
24 James Rachels,,Punishment and Desert, in ETHICS IN PRACTICE 470, 473 (Hugh
LaFollette, ed., 1997).
25 See Editorial, Dangerous Habits, 352 THE LANCET no. 9140 (1998)(summarizing
study finding cannabis less of a threat than alcohol or tobacco, and that moderate
indulgence in cannabis has little ill effect on health).
12
S. Lewis once more, “take away desert and the whole morality of the
punishment disappears.”26
* * *
Defenders of the present marijuana laws must argue not only that
criminalization is justifiable, but also that the punishment fits the
crime. That too is a difficult case to make. It is true that only a small
minority of first offenders receive sentences of incarceration.27 But
those who do not are still likely to suffer disproportionate suffering if
arrested for their use. These other unlucky users, between 700,000
and 800,000 annually,28 will still lose their liberty through arrest
and/or detention for some period of time before trial, and have their
lives centered around lawyers, trial courts, legal fees and probation
officers for the following year or more. The long-term legally
imposed disabilities for those who are convicted may include
ineligibility for government grants and contracts,29 public housing,30
and depending on the state, driver’s licenses,31 occupational
26 C. S. Lewis, supra n. ---, at 74.
27 See MacCoun and Reuter, supra n. ---, at 344, reporting in 2001 that annually
4,000 received federal prison sentences for marijuana offenses and approximately
11,000 annually received state sentences. How many of these offenders were
convicted of offenses involving sale is not reported.
28 In 2006, 43.9 percent of the 1,889,810 total arrests for drug abuse violations were
for marijuana—a total of 829,627. Crime in America: FBI Uniform Crime Reports
2006 (Washington, D.C: U.S. Dept. of Justice, 2007), Table 29, available at
http://www.fbi.gov/ucr/cius2006/arrests/index.html
29 Grants, licenses, contracts, and some other federal benefits are restricted as to
drug offenders under 21 U.S.C. § 862 (2002). Under section (b), at the discretion of
the court, individuals convicted of a first federal or state drug possession offense
may be rendered ineligible for all federal benefits for up to one year, and second
offenders for up to five years; third offenders are mandatorily permanently
ineligible. Id. Section (b) sanctions may be waived if a person declares himself to
be an addict and undergoes treatment or is declared rehabilitated. Id.
30 The Supreme Court has even upheld the eviction of a drug user's parents on the
basis of their child’s use of drugs, even if it took place outside of the home and the
parents knew nothing about it. Dep’t of Hous. & Urban Dev. v. Rucker, 122 S. Ct.
1230 (2002) (interpreting 42 U.S.C. § 1437d(l)(5) (1994), redesignated in 1998 as
d(l)(6)). See also 42 U.S.C. § 13661(a) (1998) (providing that a person previously
evicted from federally-assisted housing by reason of drug related criminal activity is
ineligible for admission to any federally-assisted housing for three years).
31 Forfeiture of licence occurs when the marijuana arrest had nothing to do with
driving or being in a car. See, e.g., Va. Code Ann. § 18.2-259.1 (2008); Ga. Code
Ann., § 40-5-75 (2007); Fla.Stat.Ann. sec. 322.055(2) (2001); 23 U.S.C. sec. 159
(2000)(denying portion of highway funds to states that do not suspend the driver’s
license of drug felons).
13
licenses,32 and voting.33 They may even include losing one’s own
land, house or bank account, pursuant to forfeiture laws that transfer
drug “instrumentalities” or “proceeds” to the government, ultimately
landing primarily in the budget of the agency that seized them.34 For
college students, federal law will strip them of their college loans for
even a first marijuana possession offense;35 for high school students,
there is the risk of mandatory expulsion under zero tolerance drug
32 18 U.S.C. secs. 3563(b)(6), 3583(d), 5F1.5(a)(authorizing sentencing court to
place occupational restrictions as conditions of probation); 21 U.S.C. sec. 862(d),
sec. 5F1.6 (limitations on federal licenses to drug offenders). See also 29 U.S.C.
secs. 504, 1111 (ineligibility from listed positions in labor unions or employee
benefit plans); Kathleen M. Olivares et al., The Collateral Consequences of a
Felony Conviction: A National Study of State Legal Codes 10 Years Later, 60 FED.
PROBATION 10 (1996) (noting that twenty-five states restrict felons from public
office).
33 As of 2003, thirty-six states permitted all felons to vote after prison release or
sentence completion; another seven states permitted some felons to vote after
sentence completion; in the other seven states the right to vote can be restored only
after executive or legislative clemency. See ABA Standards for Criminal Justice,
Collateral Sanctions and Discretionary Disqualification of Convicted Persons
(2004).
34 21 USC § 881(a). Seizures accomplished exclusively by state or local agencies
may be “adopted” by the federal government whenever the conduct giving rise to
the seizure is in violation of federal law. Directive 90-5, The Attorney-General’s
Guidelines on Seized and Forfeited Property (July 1990), in DOJ Asset Forfeiture
Manual at B-545 (Prentice Hall 1994). When the federal government has “adopted”
a state forfeiture case, 80 percent of judicially or administratively forfeited assets
are allocated to the state or local agencies for law enforcement purposes, and 20
percent remain with the federal government. In joint seizures, the share is allocated
on a case-by-case determination based on the amount of work each agency
performed. 21 USC § 881(e)(3); A Guide to Equitable Sharing of Federally
Forfeited Property for State and Local Law Enforcement Agencies 7-8 (DOJ Mar
1994). See also Eric Blumenson and Eva Nilsen, Policing for Profit: The Drug
War’s Hidden Economic Agenda, 65 U. CHI. L. REV. 35 (1998).
35 20 U.S.C. § 1091(r) (2002). This 1998 law suspends or forever terminates a drug
offender’s eligibility for federal college loans and grants. Initially the law applied to
anyone with a conviction at any time, but a recent amendment excludes convictions
prior to college. The periods of ineligibility vary, depending upon the number of
convictions and whether they were for possession or distribution of drugs—from a
year of ineligibility for a single possession conviction, to permanent ineligibility for
a second distribution or third possession conviction. This law and its constitutional
and legal infirmities is discussed in detail in Eric Blumenson & Eva Nilsen, How to
Construct an Underclass, Or How the War on Drugs Became a War on Education,
6 J. Gender Race & Just. 61 (2002).
Tom Angell, a spokesman for Students for Sensible Drug Policy, reports
that more than 200,000 college students have lost financial aid in the past 10 years
because of drug convictions, Jason Millman, As Frank Prepares Marijuana Bill,
States Make Own Efforts, South Coast Today, April 6, 2008, available at
www.SouthCoastToday.com.
14
policies in an estimated 88% of public schools;36 for some
immigrants, the risk that a conviction may result in deportation;37 for
a parent, the risk of children lost to custody battles or child protection
agencies; for the unemployed, job application forms eliciting their
criminal records; and for all offenders, a significant risk of time in
prison for violating probation or under state sentencing laws if caught
again. And in any event there is still the criminal conviction, a public
mark of societal condemnation that is itself no small thing.38
One must juxtapose lives turned upside down in these ways with
the nature of the offense, no different than the activities of millions of
other Americans who use intoxicating substances for similar reasons.
Such grossly disproportional punishments can hardly be said to fit the
offender’s crime.
2. Preventing use
As we noted, even in the absence of criminal penalties, outlawing
the use of marijuana raise separate liberty concerns. How that
putative liberty should be described is a significant question, and one
which may dictate the answer; recall that the Supreme Court’s found
no “right to engage in sodomy” in Bowers v. Hardwick39 but later
reversed itself in finding a “right to autonomy in intimate relations.”40
Similarly, some may dismiss the issue here as merely a question of
whether there exists a “right to smoke marijuana”, while others might
describe it, with Justice Brandeis, as the “right to be left alone” absent
good reason, or with Kant, as a “right to self-rule.” There are other
36 See KATHRYN A. CHANDLER ET AL., U.S. DEPT. OF EDUC., NATIONAL CENTER
FOR EDUCATION STATISTICS PUB. NO. 1999-057, Indicators of School Crime and
Safety, Table A1 (1999), available at http://www.nces.ed.gov/
pubsearch/pubsinfo.asp?pubid=1999057. See also Anne Davis, Zero Tolerance Is
Too Severe, Father Says, MILWAUKEE J. SENTINEL, Nov. 16, 1999, at 1 (two-year
expulsion applied to a first offender caught with marijuana in a Milwaukee school).
One zero tolerance expulsions generally, see Eric Blumenson and Eva Nilsen, One
Strike and You’re Out: Constitutional Constraints on Zero Tolerance in Public
Education, 81 WASH. U. L. Q. 65 (2003).
37 8 U.S.C. sec. 1227(a)(2)(B)(1999); sec. 237(a)(2)B).
38 See Lawrence v. Texas, 539 U. S. 558 (2003)( “The stigma this criminal statute
imposes...is not trivial... [I]t remains a criminal offense with all that imports for the
dignity of the persons charged...”).
39 Bowers v. Hardwick, 478 U. S. 186, 190 (1986)
40 Lawrence v. Texas, 539 U. S. 558 (2003). In Lawrence, the Court noted that it
had previously misapprehended the issue as “simply the right to engage in certain
sexual conduct,” which demeaned “the claim the individual put forward, just as it
would demean a married couple were it to be said marriage is simply about the right
to have sexual intercourse.” Id. at 559.
15
moral rights arguably at stake, including the rights to control one’s
body, to freedom of thought, to privacy in one’s home, and to the
pursuit of happiness. If such individual rights are involved, preventing
marijuana use still needs more justification than a collective cost-
benefit analysis alone.
The idea common to all these descriptions is that each person has
certain fundamental interests that must be immune from state
interference and under the individual’s exclusive control. The
Supreme Court has expressed that idea using the rubric of a
constitutional right to privacy (and the Alaska Supreme Court has
found private marijuana use in one’s home protected under its state
version of the right41). In the Lawrence opinion noted earlier, striking
down Texas’ law criminalizing homosexual sex, the Court described
that right in the following terms:
Liberty protects the person from unwarranted government
intrusions into a dwelling or other private places. . . And
there are other spheres of our lives and existence, outside
the home, where the State should not be a dominant
presence. . . Liberty presumes an autonomy of self that
includes freedom of thought, belief, expression, and
certain intimate conduct. ....At the heart of liberty is the
right to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human
life. Beliefs about these matters could not define the
attributes of personhood were they formed under
compulsion of the State. . . .The petitioners are entitled to
respect for their private lives.42
Obviously, one’s right to privacy, or what we might more
affirmatively describe as a right to self-ownership or self-rule, is
limited. According to Mill, it is limited only by the harm principle:
we are free to choose for ourselves up to the point we would harm or
risk harm to others. Justice Kennedy’s opinion can be read as adding
a second condition, one which doesn’t rule out paternalism in some
areas that are removed from the reasons for respecting individual
autonomy. In Kennedy’s opinion for the court, self-rule protects the
realm most closely related to the essential attributes of personhood.
Requiring drivers to use seatbelts does not interfere with these
attributes, but denying individuals the freedom of thought and
41 Ravin v. State, 537 P.2d 494 (Alaska, 1975).
42 Lawrence v. Texas, 539 U. S. 558, 562 (2003).
16
expression, or the freedom to choose their intimate relations, clearly
does.
In assessing where marijuana falls on this spectrum, one must
attend to the reasons individuals offer for using it, whatever one’s
own views of the drug might be. These reasons are almost completely
absent from drug policy analyses.43 Here is naturalist Michael
Pollan’s description:
All those who write about cannabis’ effect on
consciousness speak of the changes in perception they
experience....[T]hese people invariably report seeing, and
hearing, and tasting things with a new keenness, as if with
fresh eyes and ears and taste buds....It is by temporarily
mislaying much of what we already know (or think we
know) that cannabis restores a kind of innocence to our
perceptions of the world....There is another word for this
extremist noticing – this sense of first sight unencumbered
by knowingness, by the already-been-there’s and seen
that’s of the adult mind – and that word, of course, is
wonder.44
Pollan finds marijuana edifying for the thoughts, insights, and
experiences it gives him access to. Rick Steves, the PBS travel guru,
says that much of his outlook and writing have been sharpened by
using marijuana.45 Some other users say that temporarily changing the
way they perceive and experience the world increases their self-
awareness, or frees up some creative potential within them, or opens
them up to more spiritual feelings.46 In the past year, the Italian Court
of Cassation reversed a marijuana conviction on such grounds, where
the Rastafarian defendant found marijuana the means to a
43 MacCoun and Reuter, infra at n. ---, at 70 (citing R. S. Gable, Opportunity Costs
of Drug Prohibition, 92 ADDICTION 1179-82 (1997).
44 MICHAEL POLLAN, THE BOTANY OF DESIRE 166, 168 (2001).
45 Kevin Berger, The Other Side of Rick Steves, SALON.COM (March 20, 2009),
available at www.salon.com/mwt/feature/2009/03/20/rick_steves/print.html
46 See, e.g., user accounts at http://www.marijuana-uses.com/read.html; Lester
Grinspoon, M. D., To Smoke or not to Smoke: A Cannabis Odyssey (2009), and
Learn (2009), both available at http://www.marijuana-uses.com (describing
“marijuana's capacity to catalyze ideas and insights, heighten the appreciation of
music and art, or deepen emotional and sexual intimacy”); ANDREW WEIL, THE
NATURAL MIND: AN INVESTIGATION OF DRUGS AND THE HIGHER CONSCIOUSNESS
(1998) at 149-187.
17
“psychophysical state connected to contemplative prayer.”47 On the
other hand, many former users and other critics will find these self-
assessments to be delusional. Law Professor Michael Moore considers
most such claims to be “grandiose descriptions of what in fact is a
pretty pathetic condition,” and writes that “[o]ne has to be high on
[drugs] already in order to be able to judge the states induced as any
kind of path to profundity or ‘authenticity.’”48
One need not resolve this dispute concerning marijuana’s value
to recognize that at least for its users, banning marijuana does
implicate their freedom of thought and sometimes even the “right to
define one’s own concept of existence, of meaning, of the universe,
and of the mystery of human life.” That is one reason why a ban on
marijuana really cuts very close to core aspects of personhood – to the
freedom of thought and religion that are necessary to respect an
autonomous being’s ability to choose what to think and to construct
an identity for himself. That such thoughts, and such an identity, are
not esteemed by a majority of Americans and their government is
really beside the point; the very idea of this liberty is to recognize
each individual as sovereign in this realm. Yet according to President
Nixon’s National Commission on Marijuana, the war against
marijuana then beginning in earnest was fueled by fear that the drug
caused users to reject the “established value system.”49
There is also a more quotidian moral right, perhaps less exalted
but no less important, which is recognized in the Declaration of
Independence as “the pursuit of happiness.” This right should protect
those who seek affective rather than cognitive benefits from
marijuana – users for whom it serves as a relaxant, a social lubricant,
an anti-depressant, or a palliative.50 The right to pursue happiness in
one’s own way is worthy of respect, and we disdain countries like
Iran partly because they do not respect it. There, certain music and
dress is deemed decadent and banned. Here, the default position is
that people should be free to pursue their individual and idiosyncratic
tastes in recreation, even risky ones like boxing and mountain
47 Peter Popham, While a shepherd watched his flock by night...”, THE
INDEPENDENT (March 20, 2009), available at www.independent.co.uk/life-
style/health-and-wellbeing/health-news/while-a-shepherd-watched-his-flock-by-
night-1650377.html. In a second possession case, the Court reversed the conviction
of a shepherd, finding the defendant justified in using it to help him endure a “long
and solitary period....in the countryside and the mountains.” Id.
48 Moore, supra n. 7---, at 101.
49 National Commission on Marihuana and Drug Abuse, Marijuana, A Signal of
Misunderstanding (1972), at Ch. 1, ‘Perceived Threats”.
50 See e.g. ANDREW WEIL, CHOCOLATE TO MORPHINE: EVERYTHING YOU NEED TO
KNOW ABOUT MIND ALTERING DRUGS 129 (1998).
18
climbing. Only in a few cases does the majority presume to control
the personal pleasures of a minority; marijuana is one of them. (That
marijuana use often takes place in the privacy of one’s home greatly
compounds the violation.51)
This is not to say that the state should be unconcerned, because
there are risks to health and safety, and both state and federal
governments have important roles to play in eliminating or reducing
them. In liberal societies such as ours, where the presumption is that
individuals have the right to decide how to live their lives themselves,
the government safeguards us not by making the decisions for us, but
by helping us to make wise decisions with full knowledge. The
government does not legislate weight, but labels food and advises on
its health effects. The political philosopher William Talbott sees this
stance as expressing the fundamental idea underlying human rights:
“that all adult human beings with normal cognitive, emotional, and
behavioral capacities should be guaranteed what is necessary to be
able to make their own judgments about what is good for them [and]
to be able to give effect to those judgments in living their lives....”52
Certainly there are exceptions to this principle, where the
government properly places something beyond the reach of its
citizens for good reason. Many would include among them instances
where (1) the dangers of a trivial activity are very great; (2) a safer
alternative can equally satisfy the consumer; (3) the individual is a
child or lacks rationality; (4) collective action is able to accomplish
things impossible by individual choice; or (5) the activity would result
in an addiction so powerfully destructive of autonomy as to amount to
a form of slavery, which may be true of certain drugs.53 Liberty rights
can be overcome by sufficiently compelling grounds, and may justify
banning the use of some drugs.54 But marijuana does not present any
51 As the Alaska Supreme Court stated in finding that the state constitutional right
privacy extended to the use marijuana in one’s home, “If there is any area of human
activity to which a right to privacy pertains more than any other, it is the home.” It
also noted the special rights afforded to conduct at home in the U. S. Supreme
Court’s privacy jurisprudence. Ravin v. State, 537 P.2d 494 (1975).
52 WILLIAM TALBOTT, WHICH RIGHTS SHOULD BE UNIVERSAL 11 (2005).
53 Mill’s view was that “the principle of freedom cannot require [that a person]
should be free not to be free.” John Stuart Mill, On Liberty (1859). Even if the
activity had the effect of reducing autonomy in a minority of people, it is a further
question whether to sacrifice the freedom of many because of abuse of a few, as we
recognize in the case of alcohol.
54 The case we make for for marijuana legalization neither precludes nor supports
similar arguments about other drugs. We may indeed have reason to reform laws
governing other substances, but any such reform must be predicated on careful
study of the real harms, costs, and benefits of the particular drug at issue, and
whether they constitute the kind of exception listed above.
19
such reason. As Pollan writes, “the war on drugs” as in reality “a war
on some drugs, their enemy status the result of historical accident,
cultural prejudice, and institutional imperative.”55
Conclusion
The case for revisiting marijuana laws has special salience today,
because for the first time in decades serious marijuana law reform
appears to be achievable. Reform bills or ballot initiatives have
recently been approved in a number of jurisdictions,56 President
Obama and his new drug czar have suggested treating rather than
jailing non-violent drug offenders,57 and Attorney General Holder has
55 Michael Pollan, Opium Made Easy: One Gardener’s Encounter with the War on
Drugs, Harper’s Magazine (April 1, 1997), available at www.michaelpollan.com
/article.php?id=24. Bakalar and Grinspoon agree that drug prohibition has been
generated by history, not reason. They argue that Prohibition was repealed not
because of “scandals, inefficiencies and nasty side effects (these were never
considered good reasons to repeal other drug laws)” but because the middle class
became less puritanical and wanted to drink alcohol. “Unlike opium and cocaine,
alcohol was not an exotic substance with powers that were frightening because
mysterious. It was too familiar to be branded with the narcotic stigma and too
closely associated with innocent fun in many respectable people’s minds to be
purely a drug menace. Penalties for purchase and possession of alcohol were never
imposed, much less enforced. Alcohol use was never reduced to the categories of
medicine and vice.” JAMES BAKALAR AND LESTER GRINSPOON, DRUG CONTROL IN
A FREE SOCIETY 85- 88 (1988).
56 Successful marijuana ballot initiative efforts in the past year include
Massachusetts ballot initiative Question 2, codified as 94C M.G.L. 32L (2008), in
which voters decriminalized possession of less than one ounce of marijuana,
substituting a $100 civil fine, by a margin of 65%-35%; Michigan Proposition 1,
codified as MCLS § 333.26421 (2008), in which voters changed the law to allow for
medicinal use of marijuana on a doctor’s recommendation by a margin of 63%-
37%; and local ballot initiatives in Hawaii County, Hawaii, Fayetteville, Ark., and
several Massachusetts towns, where voters made enforcement of adult marijuana
possession laws the lowest law enforcement priority, in each case by substantial
majorities. See Marijuana Policy Project, 2008 Ballot Initiatives, available at
http://www.mpp.org/library/2008-ballot-initiatives.html. However, California’s
Proposition 5, which sought to enhance a successful 2002 drug reform initiative by
changing marijuana possession from a criminal misdemeanor to a civil infraction,
and substituting treatment for incarceration for many non- violent offenders, went
down to defeat 60%-40%. Id. More than a dozen legislatures have taken up
measures to either reduce penalties for marijuana use or allow its use for treatment
purposes. Jesse McKinley, Marijuana Advocates Point to Signs of Change, New
York Times, April 20, 2009.
57See Carrie Johnson and Amy Goldstein, Choice of Drug Czar Indicates Focus on
Treatment, Not Jail, Washington Post, March 12, 2009, p. A04 (quoting White
House as favoring treatment rather than jail for drug offenders); Kurt Schmoke,
Obama Not Completely Silent on the Drug War, Huffington Post, May 22, 2008,
20
ordered a stop to federal prosecutions of medical marijuana use in
states that permit it.58 Governor Schwarzenegger has proposed
consideration of the legalization and taxation of marijuana,59 and Rep.
Barney Frank has introduced a decriminalization bill for the first time
in Congress because, he said, the public is now ready to support it.60
Given the destructive and inhumane consequences of marijuana
laws and policies (which we have catalogued elsewhere61), any
ameliorative reform effort should be embraced. Worthy reform
proposals include the removal of marijuana from federal Schedule 1
into an appropriate lesser category, which would foster both scientific
study of the drug and its medicinal use where appropriate;62 state and
available at http://www.huffingtonpost.com/kurt-schmoke/obama-not-completely-
sile_b_103122.html (same); Gary Fields, White House Drug Czar Calls for End to
“War on Drugs”, Wall Street Journal, May 14, 2009, available at
http://online.wsj.com/article_email/SB124225891527617397-
lMyQjAxMDI5NDEyNTIxNTU4Wj.html)(reporting that Obama’s new drug czar,
Gil Kerlikowske, says the administration “is likely to deal with drugs as a matter of
public health rather than criminal justice alone, with treatment's role growing
relative to incarceration”). In another sign that the Obama Administration is
rethinking drug policy, the Justice Department has urged Congress to lower
sentences for sale and possession of crack cocaine so that they no longer exceed (by
a factor of 100:1) those for powdered cocaine. Solomon Moore, Justice Dept. Seeks
Equity in Sentencing for Cocaine, New York Times, April 30, 2009 p. A17.
58 David Johnston and Neil A. Lewis, Ending Raids of Dispensers of Marijuana for
Patients, New York Times, March 19, 2009, p. A20; McKinley, supra n. ---.
59 Rebecca Cathcart, Schwarzenegger Urges a Study on Legalizing Marijuana Use,
New York Times, May 7, 2009, p. A21. The article reports that 56 percent of
California voters support legalizing and taxing marijuana for recreational use.
60 Act to Remove Federal Penalties for the Personal Use of Marijuana by
Responsible Adults, H.R. 5843, 110th Cong. (submitted April, 2008). Rep. Frank’s
bill would decriminalize possession of up to 100 grams (or 3.5 ounces) of marijuana
and also remove criminal penalties from users who share marijuana with others so
long as they don’t sell it. Frank announced his intention to file the bill on Bill
Maher’s television program, stating that caution had prevented his doing so for
decades but that it was now time for politicians to “catch up with the public.” See
Real Time, 3/22/08, available at http://www.citizensugar.com/1138194. Regarding
popular support for change, see infra n. ---.
61 Eric Blumenson and Eva Nilsen, No Rational Basis: The Pragmatic Case for
Marijuana Law Reform, 17 VA. J. SOC. POLICY & LAW --- (No. 1, forthcoming
2009).
62 According to current knowledge, marijuana satisfies none of the three Schedule 1
requirements: it (1) has a low potential for harm and abuse; (2) appears to have
therapeutic benefit, as the government itself claimed in its successful patent
application, see infra n. ----; and (3) according to the American College of
Physicians, may be used safely under appropriate conditions. Position paper by the
American College of Physicians, Supporting Research into the Therapeutic Role of
Marijuana, (2008), available at www.acponline.org/acp_news/medmarinews.htm.
In this paper, the ACP “urges review of marijuana’s status as a schedule I controlled
21
federal laws permitting the medical use of marijuana;63
decriminalization of use and possession (as currently exists in thirteen
states64), which would put an end to some of the worst excesses
afflicting users; and legalization, which would most fully respect
individual liberty while also allowing the government to control and
regulate the marijuana market in harm-reducing ways. If there is to be
progress, reformers should welcome whatever incremental steps may
be possible, notwithstanding the stronger deontological requirements
associated with liberty claims. But whatever the political dynamics,
we should remember that fundamental moral rights are also at stake –
rights that respect an individual’s personhood by guaranteeing a
sphere of autonomy in personal matters, and limiting prosecutions
according to the principles of just punishment. These civil libertarian
concerns, well-recognized in other contexts, should inform legislators
and policy-makers as marijuana law reform efforts move forward.
substance and its reclassification into a more appropriate schedule, given the
scientific evidence regarding marijuana’s safety and efficacy in some clinical
conditions.”
63 As of December, 2008, the United States government continued to oppose
medical marijuana as useless, despite having patented the medicinal benefits of
marijuana in an application asserting cannabinoids’ usefulness in preventing or
treating diseases including stroke, trauma, auto-immune disorders, Parkinson's,
Alzheimer's and HIV dementia. Patent # 6,630,507, available at
www.patentstorm.us/patents/6630507.html
64 States that have decriminalized at least some kinds of marijuana possession
offenses are Alaska (see Schedule III(A), AS § 11.71.160; Possession AS §
11.71.010 – 0); California (see Schedule I, Health and Safety § 11054; Schedule I,
Possession: West's Ann. Cal. Health & Safety Code § 11357); Colorado,(see
Schedule 1, C.R.S.A. § 18-18-203 and § 18-18-406); Maine (see Schedule Z: 17-A
M.R.S.A. § 1102 Schedules W, X, Y and Z: 17-A M.R.S.A. § 1107-A);
Massachusetts, 94C M.G.L. §32L (2008); Minnesota (see Schedule 1, M.S.A. §
152.02, M.S.A. § 152.027); Mississippi (see Schedule 1, Miss. Code Ann. § 41-29-
113 and Miss. Code Ann. § 41-29-139); Nebraska (see Schedule 1, Neb. Rev. St. §
28-405 and Neb. Rev. St. § 28-416); Nevada (see N.R.S. 453.336); New York (see
Schedule 1, McKinney's Public Health Law § 3306 and McKinney's Penal Law §
221.05); North Carolina (see Schedule VI, N.C.G.S.A. § 90-94 and N.C.G.S.A. §
90-95); Ohio (see Schedule 1, R.C. § 3719.41 and R.C. § 3719.99); Oregon (see
O.R.S. § 475.864).
