The history of penalizing oppressive measures to discourage the utilization of drugs is one which presents little support to those who think that the best approach to the “problem” of the extensive use of marijuana is Draconian legislation. The spread of tobacco smoking during the 16th and 17th centuries was the most theatrical “epidemic” of drug use in recorded history. The “foule weed” was adopted by cultures so different — literate and nonliterate, for instance that cultural and social determinants must have played an inconsequential role, if any at all, in its spread. In approximately all cases of tobacco use, prohibitions against it failed, whether they were justified on grounds of impairment to health, religion, good taste, or by the threat of inducement to criminal activity. The history of the use of tobacco would appear to point out that social controls are powerless when a society is confronted by an attractive psychoactive substance, even though that substance serves no primary physiological need or conventional interpersonal function.
In their initial response to the introduction of tobacco into most societies all through the 16th and 17th centuries, the authorities were in actual fact much more bigoted in their attempts to curb its use than are modern authorities. This is particularly surprising when one thinks that it is modern proof which has demonstrated undoubtedly the health dangers arising from tobacco use. One more very similar instance is provided by the 17th century spread of coffee drinking in the Arab Near East, despite the most extreme penalties, including death. (Mitch Earleywine, 2002).
The impotence of lawmaking in restraining the use of psychoactive substances is demonstrated again by fairly recent North African history. When from 1956-1960 the farming of Cannabis sativa was banned in Tunisia and Algeria, vineyards replaced hemp fields, as well as alcohol consumption took the place of cannabis with no resulting improvement in public health. At the end of the 19th century in Ireland, there was an endeavor to restrain the use of hard liquor through temperance campaigns, heavy taxation, and (attempted) strict enforcement of the tax laws. The campaign was a victory in that the Irish to a great extent reduced their intake of hard liquor; instead, they switched to the substitute ethyl ether, which offered a short-lived intoxication involving a “hot all the way down” sensation, pursued by thunderous flatus, and, within ten minutes, a high, which could be repeated and which left no menace. The use of ether turned out to be so extensive that in one area of Ulster an eighth of the population were labeled “etheromaniacs.” The succeeding alarm over the ether “epidemic” became so immense that the different pressure groups which had promoted the campaign upturned their field, and the Irishman happily returned to other psychoactive substances, remarkably back to his whiskey.
In Japan, after World War II, amphetamines turned out to be freely and legally available. Their use started to skyrocket to the point where it was anticipated that 5 million Japanese were habitual users. In reaction to this medicosocio emergency, a highly punitive law was enacted in 1953 against both users and sellers. But whereas the amphetamine problem was considered solved by 1955, the number of narcotic addicts had started to rise gradually. The augment in the use of narcotics turned out to be so alarming that in 1963 a new law, planned to be as severe as the 1953 antiamphetamine legislation, was passed. It solved the heroin problem, however the number of barbiturate users now started to rise, and in actual fact is still rising. Additionally there is now a sharp augment in the practice of solvent inhalation (“glue-sniffing”). At the present time marijuana is used to a very slight extent in Japan. (Dale Alexander, 2003).
Prohibition of alcohol in this country failed for the reason that violations were so frequent, blatant, and extensive through all socioeconomic groups. The public more and more doubted that alcohol was so unwanted, and the cost of and fallout from enforcement became unbearable.
The ostensible cause for the general alarm regarding the use of marijuana is the belief that it shows the way to drug abuse, which means that it harms the individual who takes the drug and that he is more probable to impose injury on society generally. Though, irrespective of the legal status of its use, if a drug, when taken in its usual doses, is not biologically detrimental, then from a functional (and a common sense) viewpoint its use cannot constitute “drug abuse.” The opiates are in actual fact truly drugs of abuse in that the addiction they produce is perpetually harmful to the individual. However, while the mortality rate for such drug abuse possibly from two to ten times that of the non-narcotic-using population, very important statistics in the United States for the year 1965 make known that deaths ensuing from misuse of narcotics and further drugs constitute merely 1.5 per 1,000, compared with the figure of 10.7 for alcoholism and its complications. Commonly associated with drug abuse are various disorders, including malnutrition, infection, toxic psychoses, as well as the precipitation of psychoses. Additionally, there are the deep physical and mental changes that may take place upon abrupt withdrawal of drugs of abuse. Drug abuse with opiates is usually associated with crimes against both people and property, even though in actual fact crimes against people are rare; thievery, forgery, and prostitution are the most common. A common crime among drug users is that of peddling drugs to one another; this is the merely one that is common among marijuana users.
Besides crime, further types of social damage usually associated with drug abuse comprise automobile accidents, economic losses at all levels, neglect of family and ordinary pursuits and activities, damaged careers, and all that. While it is most likely impossible to estimate the actual cost of drug abuse, for the reason that there are so many factors and variables involved, it appears more than likely that the social cost of abuse of narcotics and other drugs is less than that caused by the extensive addiction to alcohol in this country, where the number of alcoholics is sometimes estimated to be as high as twenty million, although more conservative estimates hover around the five to six million mark. The likelihood that the economic impact of drug abuse of all sorts may be overestimated is supported by the White House Committee on Narcotic and Drug Abuse, which has noted that if the economic aspects alone are considered, there are numerous other problems deserving of a higher priority. (Erich Goode, 1969).
Whereas there can be no question that the use of psychoactive drugs may be harmful to the social fabric, the harm ensuing from the use of marijuana is of a far lower order of magnitude than the harm caused by abuse of narcotics, alcohol, and other drugs. Marijuana itself is not criminogenic; it does not show the way to sexual debauchery; it is not addicting; there is no evidence that it leads to the use of narcotics. It does not, under ordinary situation, cause psychoses, and there is no convincing evidence that it causes personality deterioration. Even regarding automobile driving, although the use of any psychoactive drug must perforce be detrimental to this skill, there exists evidence that marijuana is less so than alcohol. Marijuana use, even over a substantial period of time, does not cause malnutrition or to any known organic illness. There is no evidence that mortality rates are any higher among users than nonusers; actually, relative to other psychoactive drugs, it is remarkably safe.
There is, though, a real relationship between crime and cannabis in this country: the criminogenic character of the present laws against the possession, sale, or even the giving away of marijuana; and this comprises a great irony. The unique nature of this criminogenic effect in the United States is that antimarijuana laws have strengthened — and somewhat created — the fundamental but complex sociological and legal problems they were ostensibly designed to avoid or eliminate. The laws which prohibit the possession, sale, as well as giving away of cannabis passed by the individual states and the federal government since the mid-1930’s have formed a completely new species of “criminal,” very often an individual who is truly unable to see himself, in any real sense, as engaged in any criminal activity, and whose typical attitude toward the antimarijuana legislation is a combination of scorn, indifference, and frustration. It is not at all unreasonable to presume that a government (or, more predominantly, a special law-enforcement agency of that government) which strikes marijuana users as downright absurd in its tremendously punitive approach to prohibition of marijuana will as well appear ludicrous in other important respects. (Alan W. Bock, 2000).
Until recently, the federal laws made distribution, including gifts of marijuana, punishable by from five to twenty years imprisonment for a first offense, and ten to forty years for a subsequent offense. In addition, there were restrictions on probation and suspended sentences. Accordingly, federal penalties for marijuana violations were, with a few minor exceptions, the same as those for violations of the laws relating to opiates and cocaine. The declared intent of Public Law 91-513, which became law on October 27, 1970, is that of reducing penalties for experimenters and increasing them for “pushers.” The penalty for simple possession of marijuana is reduced to a prison term of not more than one year and/or a fine of not more than $5,000. The Court can, if it decides, give first offender probation instead of a jail sentence. A second conviction of possession is punishable by up to two years of imprisonment and/or a fine of not more than $10,000. The offense of selling marijuana is punishable by a prison sentence of up to five years and/or a fine of as much as $15,000. If there is a prior conviction for this offense an offender may be sentenced to ten years in prison and fined as much as $30,000. Additionally, there is a provision, allegedly aimed at professional criminals, which makes it probable to inflict a minimum sentence of ten years and a maximum of life on a person, convicted of a drug offense, who is engaged in a “continuing criminal enterprise.” (Alex Kreit, 2003)
Most state legislation makes distribution, including gifts, punishable as a felony — and the felony is often high degree, involving the possibility of a long prison term. Most states define cannabis as a narcotic; the possible punishments for distribution are usually identical with those that apply to the distribution of opiates and cocaine. In fact the degree of permissible punishment for a single small distribution of marijuana is so high in some states that it may approximate those provided for such crimes against person or property as unaggravated robbery, larceny, arson, kidnapping, unaggravated forcible rape, or even, in the state of California, second degree murder.
A conservative estimate is that one-third of the California population between the ages of 16 and 29 have committed the very serious crime of using marijuana and thereby exposed themselves to the possibility of arrest, a felony conviction, and imprisonment. And both the percentage and the age-range are rising each year. As it is most unhealthy for a society to turn a large percentage of its young people into felons or even define them as such. The young, occasional user of marijuana may have a good deal of trouble adjusting to the official local and federal police view of him as a criminal liable to the most severe punishments, whether fines, imprisonment, or both, of the state or federal government. It is far from unreasonable to suppose that he will feel genuine resentment toward what he feels increasingly forced to view as the “other side” of the law, and that he will see the police less as protectors of rights and property and more as intruders and spies. It is conceivable that this attitude shift might lead to further, more dangerous criminal activity — for if one is already branded a criminal and lives under the threat of a heavy jail sentence and/or fines, what essential difference can it possibly make if one commits another crime for which the sentence is less Many young marijuana users employ this particular argument.
New social norms are increasingly and dramatically colliding with older statutory proscriptions. The legal institution cannot remain insensitive to these changes without incurring damage to itself. But, of course, courts lack the flexibility and prerogatives to provide solutions to social problems; ultimately it is the legislatures which can experiment, improvise, change direction, and even reverse field when necessary. In fact, just because a court has so few alternatives, it exercises great caution: a court may strike down a statute as unconstitutional, but in doing so it may leave a major social problem without an adequate solution. (John P. Hoffmann, 1994).
As it becomes increasingly accepted that enforcement of the existing marijuana laws is more costly and dangerous than is use of the drug itself, at least as it is used at present in the United States, enforcement will become increasingly difficult. There is every indication that a great number of people are ignoring these laws now and that even more will be doing so in the future. It is not simply that more people are using marijuana, but larger numbers of people who are older are also smoking it. The number of people breaking these laws even now is so great that if a substantial fraction of them were arrested, the courts would be overwhelmed with the volume. One can predict that it will not be long before it will be a rare jury that does not have among its members at least one who uses marijuana, is convinced of its relative harmlessness, and will find it difficult to be a party to the conviction of someone else who uses the drug. In the absence of any statutory changes, what may happen is that law enforcement officials faced with increasing numbers of violators and shrinking numbers of convictions will arrive at a point where they decide that any efforts to enforce the laws as written are futile and that the only realistic approach to the widespread use of marijuana will be systematically to ignore it.
Something of this nature recently happened in the Netherlands, where the government has been moving toward the position that at least in the case of marijuana it is more sensible for a society to live with it than to fight its use. Officially marijuana remains outside the law, but even high law enforcement officials acknowledge that this is so because the Netherlands (like the United States) is party to the Single Convention governing traffic in drugs. Compared to the furtiveness and police action associated with drug usage in the United States, the Dutch laissez-faire attitude toward marijuana is striking, and nowhere is it more obvious than in two psychedelically lit, government-subsidized youth clubs, Paradiso and Fantasio, in downtown Amsterdam. In each of these clubs as many as 1,000 young people 16 years old and over can be found on any night, many of them smoking marijuana while pushers openly ply their trade, offering potential customers free samples. The police are fully aware of the activities and transactions that go on inside but make no effort to interfere. The clubs’ managers and staff are alert to the use and sales of harder drugs and eject those so involved.
In view of the present public attitudes toward smoking marijuana in the United States, it seems unlikely that legislatures are going to legalize the use of marijuana in the near future. It is likely, then, that this same type of widespread ignoring of the antimarijuana laws will very shortly come to pass. But the laissezfaire approach is no solution. It is mere transitory accommodation with a number of liabilities. First, one must expect that while such an accommodation may become widespread, it will nonetheless remain capricious. Second, since the present laws will presumably still exist, the user, while he may not be pursued, will still be labeled a criminal; and third, such an approach provides no way of imposing any degree of quality control upon distribution.
A more rational approach to the problem of the smoking of marijuana in the United States would include legalization of the use of marijuana, regulation of its distribution, and the development of sound educational programs about it. (Xueyan Zhao, Mark N. Harris, 2004).
By “legalization” is meant the freedom for people above a certain age, say 18, to use marijuana (bhang) of a predetermined potency. The penalties associated with its use, as with alcohol, would deal with those circumstances wherein the user endangers the lives or well-being of others, as, for example, in operating a motor vehicle while intoxicated. Such legalization would immediately put an end to the costs and harmfulness of the present legal approach. It has to be assumed that the legalization of marijuana would result in more widespread use. However, since at the present time the use is increasing explosively, it is at least conceivable that the prevalence of its use will reach roughly the same level sometime in the not too distant future with or without legalization. Furthermore, there is even a possibility that for some groups legalization will mean less use; those young people whose use is largely determined by a need to oppose hypocrisy and the establishment may feel less compelled to smoke pot when it is freely available. And very young people, those for whom its use may be the most harmful, may be more willing to forego its use now with the understanding that they will be able to use it when they reach age 18, just as most of them do not surreptitiously and illegally drive automobiles at a younger age perhaps largely because they know that when they reach 16 they will, with certain restrictions, be able to drive legally. This will by no means bring an end to the use of marijuana among high school and junior high school students, but it is more likely to have a dampening than an accelerating effect on use in this age group.
In this proposed approach the distribution of marijuana is regulated much as that of alcohol is now. The use of cannabis products is generally less dangerous than the use of either tobacco or alcohol, and the use of marijuana, as it is commonly smoked in this country, is the least harmful of all. The regulations controlling the distribution of cannabis would limit it to marijuana (bhang), of, say, 1.5-percent tetrahydrocannabinol potency. This would do much to insure the continued use of the milder form through smoking, rather than through the ingestion of more powerful forms such as hashish (charas). Just as, with the easy availability of liquors of limited potencies, people do not generally seek out pure ethanol, so it is expected that with the unfettered availability of marijuana, few would seek out hashish. Another important advantage of regulation is that the consumer could be certain not only that he is getting unadulterated marijuana, but also that it is of potency familiar to him. Thus, there would be no danger of marijuana laced with other drugs. The risk of attaining more of a high through autotitration than the user desires or is prepared for would be minimized if the available product were of a more or less uniform, predictable potency. The risk of the kinds of reactions resulting from large amounts of ingested hashish, would be all but impossible under these circumstances.
If this type of approach is to have any effectiveness in stemming the push toward the use of “hallucinogens,” amphetamines, and narcotics, it must be accompanied by honest educational programs. To date, such approaches have tended to lump marijuana with the “hallucinogens” or, even more inappropriately, with the true medical narcotics. The law as it presently stands reinforces this when it provides stiffer penalties for the use of marijuana than it does for LSD. Young people who have “learned” for themselves that marijuana is not very harmful then regrettably tend to treat with skepticism information from the same sources about the dangers of other drugs and are more likely to experiment with them. The present laws put the drug educator in a difficult position. He can discuss honestly the dangers of LSD, amphetamines, and heroin. But when he talks about marijuana, and particularly when he is asked about its dangers relative to those of alcohol, he can either be less than candid and risk losing credibility with regard to the other drugs, or he can acknowledge that except for the risk of getting caught, there is little reason on the whole to believe that marijuana as it is used now in the United States is more dangerous than alcohol. If he admits this lack of negative evidence regarding marijuana, he risks being accused by the community (or the school authorities) of encouraging the use of marijuana and thereby criminal behavior. If he tells the students candidly of the relative dangers of marijuana, LSD, amphetamines, and heroin, and he tells them what the penalties are for the use of these, he risks being interpreted as mocking the law. When the use of marijuana is legalized, it will be possible for the drug educator to have more credibility among the young people than he now can have.
However, if he is to be credible for an audience which seems particularly sensitive to breaches of integrity, he must be scrupulously objective about the material he presents. A case in point is an advertisement sponsored by the National Institute of Mental Health which appeared in several campus newspapers in November 1969. It showed the picture of a man and bore the title “Happy Twenty-First Birthday, Johnny.” The ad read, most people take him for about 35.” Then came a few paragraphs of a reasonable description of the dangers of using amphetamines, followed by an invitation to write for free drug booklets to the National Institute of Mental Health. On January 6, 1970, two months later, the Harvard Crimson, one of the papers which had published the ad, also published a letter from the man who had posed for the picture, thanking the paper for belatedly recognizing his twenty first birthday: “I was touched and proud to find your paper commemorating my twenty-first birthday. . . . I guess it just slipped by nine years ago when it happened, and I was a Junior [at Harvard]. But that’s all right, I know how busy you are up there, getting out a paper every day, and all.” (Denise B. Kandel, 2002).
Not only was he in fact thirty years old, he was made up to look even older in the photograph. Needless to say, the student readers treated the incident with derision, and one wonders how seriously they will now consider the reasonably objective information offered in the advertisement. For that matter, one doubts the credibility — as a source of drug information — that they will grant to the National Institute of Mental Health. There is some evidence that students will respond rationally to credible sources of objective evidence concerning the dangers of various drugs. And there is every reason to believe that deceitfulness in drug education will in the long run be counterproductive. (Robert W. Winslow, 1972).
Most people in the United States, at least today, believe that to legalize the use of marijuana would be to invite national tragedy. Among them are those whose attitudes toward the use of this intoxicant are so emotionally over determined that they would remain unpersuaded by any amount of evidence of its relative harmlessness or by the most compelling arguments for the sagacity of legalization. Others, who are willing to consider the possibility, believe — as they have heard countless times — that not enough is known about the drug to make such a change which seems to them precipitous and premature. It is quite true that among the hundreds and hundreds of papers dealing with cannabis, there is relatively little methodologically sound research. Yet out of vast collection of largely unsystematic recordings emerges a very strong impression that no amount of research is likely to prove that cannabis is as dangerous as alcohol and tobacco. The very serious dangers of tobacco, particularly to the pulmonary and cardiovascular systems, are becoming increasingly well known. Alcohol, on the other hand, is generally considered to be a serious danger for “only a minority” of people in this country, namely the alcoholics, who are conservatively estimated to number about 5 to 6 million. Another minority group, the alcohol abstainers, is actually considered by most people to be somewhat deviant. We read in the newspapers of how upper-middle-class parents support and even encourage alcohol use among their teenage children, of how a session of Congress began with cocktails, and, more recently of the exchange between Apollo astronauts and a television comedian, well known for his use of alcohol, during which he gleefully exclaimed that he was higher than they. So-called social drinking is as American as apple pie — this despite the clearly demonstrated dangers of even this kind of drinking. It is a curious fact that the only socially accepted and used drugs known to cause tissue damage (alcohol and tobacco) are the ones whose use Western society sanctions. It is reasonably well established that cannabis causes no tissue damage.
There is no evidence that it leads to any cellular damage to any organ. It does not lead to psychoses de novo, and the evidence that it promotes personality deterioration is quite unconvincing, particularly in the forms and dosage used in the United States today. Although it is clear that much more must and will be learned about the derivatives of this fascinating psychoactive plant, it is not so clear what specifically needs yet to be learned before we are ready to embark on a more reasoned approach to the social use of marijuana. Given the fact that large segments of any population will use psychoactive drugs and given the psychoactive drugs presently available, marijuana is among the least dangerous. A fortiori, we must consider the enormous harm, obvious and subtle, short-range and long-term, inflicted on the people, particularly the young, who constitute or will soon constitute the formative and critical members of our society by the present punitive, repressive approach to the use of marijuana. And we must consider the damage inflicted on legal and other institutions when young people react to what they see as a confirmation of their view that those institutions are hypocritical and inequitable. Indeed, the greatest potential for social harm lies in the scarring of so many young people and the reactive, institutional damages that are direct products of present marijuana laws. Thus to avoid having this harm reach the proportions of a real national disaster within the next decade, there is a need to make the social use of marijuana legal. (Nancy Como-Lesko, Louis H. Primavera, Philip R. Szeszko, 1994).