XI. LEGISLATIVE RECONSIDERATION: 1965-1970
With the public opinion process in full operation for the first time in the fifty-year history of American marijuana prohibition, great pressure for legislative reform developed at both state and federal levels.
Innumerable public' and private2 organizations have advocated reduction of marijuana penalties; some have urged that the drug be legalized.2 Several states and the District of Columbia have responded by de-escalating penalties, especially for first offense possession.4 Unfortunately, however, most of these "reforms" smack of tokenism. On the federal level, the Dodd bill5 now pending before Congress incorporates many major reforms, but it too remains grounded in many of the old misconceptions and outworn phrases that characterize the earlier legislation.
On the state level, the issue has become stalemated because of growing legislative distaste for student unrest. Consequently, the legislatures have simply reformed the most obnoxious parts of the old laws-the outrageous penalties. Apparently the law-making bodies feel that even an open inquiry into less restrictive legislation would resemble capitulation to another "nonnegotiable demand." The new rationale for this resistance is the possibility that some of the questions unanswered today will be answered tomorrow. As of this writing, the legislatures have stiffened against public opinion in preservation of the status quo.
There are two conspicuous examples of this political retrenchment. In. 1968 the Governor of California appointed a blue-ribbon commission to study the state's drug laws. When the news leaked that the commission intended to recommend legalization of marijuana, the commission was forthwith disbanded.' Similarly, the National Commission on Reform of Federal Criminal Laws performed the monumental tasks of identifying the governmental interests in drug prohibition and integrating existing drugs into the scheme according to their effects. The Commission classified drugs as dangerous, abusable and restricted on the basis of their potential for harm, requiring an affirmative demonstration of such potential as a precondition for classification. Yet after objectively reviewing the scientific data on marijuana and concluding, "candidly, we do not know how harmful marijuana is," ' the Commission recommended its inclusion as an abusable drug. Political acceptability is the only possible explanation for this ruse.
In the succeeding pages, we shall briefly analyze the pending federal legislation and the provisions of the recently enacted Virginia law as illustrations of current legislative response, reserving our suggestions for a desirable legislative approach for our concluding section.
A. Virginia Legislative "Reform": Publicity Begets Tokenism
It is fitting that the most objectionable provision contained in Virginia's drug laws, that pertaining to the illegal possession of marijuana, sparked a controversy which eventually culminated in a general reform of the state's entire scheme of drug control in the spring of 1970.
The controversy centered around a twenty-year-old ex-University of Virginia student, Frank P. LaVarrc, who, on February 24, 1969, was arrested in a Danvillc, Virginia, bus station while enroute to Atlanta from Charlottesville, Virginia.8 In his possession were four plastic containers of marijuana valued at S2,500 plus smaller amounts in a tobacco pouch and a shoe. Refusing to "cooperate" by disclosing the names of all university students whom he knew were using drugs, LaVarre's bond was set at $50,000.
Following a plea of guilty to possession of marijuana, LaVarre was sentenced on July 31, 1969, in the Danvillc Corporation Court to twenty-five years in the state penitentiary, five years suspended, and fined $500. The sentencing judge admonished him, "Now I want to say to you, young man, that you still have time to mend your ways and make a useful citizen out of yourself." ° Presumably this meant that under Virginia law LaVarre, "who had never so much as stolen a hubcap," 10 would be eligible for parole in five years.
Although the trial was reported on the front page of the Richmond
Times-Dispatch, the conscience of the citizens of Virginia was not awakened until several months, later following the publication of an article in Life magazine," which used the LaVarre case as an illustration of the nation's antiquated and inhumane drug laws. One suspects that all this publicity embarrassed the people of Virginia,'2 thus fostering general agreement that marijuana penalties were far too harsh-"
Such was clearly the belief of the Governor, who pardoned LaVarre on January 2, 1970, placing him on five years probation. This act was noted nationally'4 and applauded locally.15 The existing law was criticized and reform was urged."
The General Assembly responded, and a subcommittee of the House General Laws Committee held hearings.17 At these hearings, both legislators and experts generally agreed that drug laws should be aimed primarily at dealers and should allow more leeway "for youngsters caught following a current fad." Testimony also indicated that many persons arrested were never prosecuted because some Commonwealth's Attorneys felt that even the minimum penalty for unlawful possession was too great.19 Many of the legislators believed that lighter penalties would encourage more uniform enforcement of the law.
Responding to these and similar pressures, the General Assembly enacted the Drug Control Act,2° which was signed into law on April 5, 1970. The Act replaces the old Uniform Narcotic Drug Act2' and is itself a comprehensive narcotic control measure. We shall deal here only with those provisions of the Act pertaining to cannabis sativa. The Act defines as separate substances marijuana and hashish. The former includes all parts of the plant, excluding the resin extracted from any part thereof; the latter is defined to include ouly such resin.2' Such drugs may be manufactured and sold only subject to certain restrictions.2'
The Act further provides for penalties for the unlawful manufacture, sale and possession of marijuana and hashish. Section 54-524.101 prohibits the knowing or intentional manufacture, sale or possession with intent to sell of a controlled drug, except as authorized under the Act. A conviction for a violation of this provision "may be based solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed." 24 The penalty for first violation of this provision is imprisonment in the penitentiary for not less than one nor more than forty years, or a fine of not more than 25,000, or both. A second or subsequent offender is subject to imprisonment for not less than ten years to life, or a fine of up to $50,000 or both.25
The Act also prohibits the unlawful possession of marijuana and hashish; possession of hashish carries a more severe penalty than possession of marijuana. The initial conviction of any person illegally possessing marijuana is a misdemeanor punishable by a fine of not more than $1,000, or confinement in jail not to exceed twelve months, or both. Unlawful possession of hashish is designated as a felony carrying a penalty of not less than one nor greater than ten years in the penitentiary or, at the discretion of the jury or the court sitting without a jury. confinement in jail not to exceed twelve months and a fine of up to $5,000. A conviction for a second or subsequent offense involving the unlawful possession of either marijuana or hashish is punishable by imprisonment in the penitentiary for between two and twenty years or, at the discretion of the jury or the court sitting without a jury, confinement in jail up to twelve months and a fine of not more than $10,000.26 The sale of marijuana or hashish by any person over eighteen to one below that age is punishable by imprisonment in the penitentiary for not less than five nor more than forty years, or a fine of not more than $50,000, or both.21
Although the Act has remedied the worst provision under the Virginia drug laws-that governing first offense penalties for the unlawful possession of marijuana-it did little else. The most disturbing aspect of the legislation is its continuation of one classification that includes both cannabis and the "hard" drugs. With the exception noted above, the illegal manufacture, sale (including sale to those under eighteen) and possession of marijuana and hashish are treated with equal severity as violations involving heroin, opium, morphine or cocaine. Only continning ignorance about the pharmacological effects of marijuana could explain the failure to declassify. Embarrassed by the LaVarre case and its attendant publicity, Virginia legislators took the smallest possible step. They clearly continue to view the drug as vicious and consider those using it highly culpable .211
The legislation has two additional weaknesses even on its own terms. One of the main criticisms of the old law was that it was inflexible; in an obvious attempt to relieve the prosecution of proving intent to sell, the law provided that a person who unlawfully possessed more than 25 grains of the forbidden drug was subject to the most severe penalties.29 Although the new Act requires an intent to distribute for possession offenses with severe penalties and does not stipulate a presumptive quantity, it too is bound to produce "embarrassing" results, since a conviction may be "based solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed." 30 To avoid unjust punishment, such modifying language should be deleted, thus rightly placing upon the state the burden of proving intent to sell beyond a reasonable doubt.
Finally, the sentencing discretion left to the finder of facts has no meaningful bounds. The legislation reflects one of the most abominable conjunctions of mandatory minimum sentences and excessive, discretionary maximums that could have been devised. What can be said of legislative rationality when sale of marijuana is punishable by one to forty years at the whim of the trier of fact?
Similarly, by escalating the penalty drastically between first and second offense possession and retaining a distinction between possession and sale, the legislation reflects a continuing misconception about marijuana use and traffic patterns. Finally, the perpetuated severity of penalties is totally unsupportable under any interpretation of modern medical data. Only if marijuana use caused the user to murder instantaneously would a second possession offense justify a twenty-year sentence and a first sale offense justify a forty year jail term.
B. The Dodd Bill: Half a Loaf
The House version31 of the Dolld bill,32 which had been shepherded through the Senate by Senators Dodd and 1-Iruska in February, finally passed the House of Representatives on September 24, 1970. If a conference version of the Dodd bill is enacted, it will take several small steps toward sanity in the area of narcotics abuse. Beginning with the
Narcotics Rehabilitation Act of 1966, Congress began reversing the progressively absurd extensions of the Harrison Act's original conversion of drug abuse from a medical problem to a law-enforcement problem. The 1966 Act included extensive provisions regarding the care and rehabilitation of the narcotics addict.35 To a lesser degree he Dodd bill continues this trend of viewing drug abuse as a medical problem.86
The bill abandons the traditional method of control-taxation-in favor of direct regulation under the interstate commerce clause." Dangerous substances are classified in different schedules according to criteria such as potential for abuse, acceptability for medical use, and degree of safety in use.-8
The Attorney General, acting on the medical and scientific advice of the Secretary of Health, Education and Welfare, and a special Scientific Advisory Committee created by the law has complete power to remove or reclassify drugs within the four different schedules.39 Each schedule has its own set of criteria for determining which drugs it should include. The schedules not only classify drugs but also determine, by reference to Title V of the bill, what penalties will be incurred by violators of the laws dealing with drugs of a particular schedule. Marijuana is included within Schedule I and is subject to the most stringent controls, largely on the grounds that it and the other drugs of Schedule I, like heroin and LSD, have little medical value and a high abuse potential.40 The law does provide lower maximum penalties for trafficking in nonnarcotic Schedule I and 11 drugs, such as marijuana, than narcotic drugs-five years and $15,000 instead of twelve years and 25,Q00.' In addition, there is a special provision stating that distribution of a "small amount of marihuana for no remuneration" is punishable by imprisonment for a maximum of one year, a fine of $5,000, or both.42 Possession offenses are divided into two types: simple possession, which is treated as a misdemeanor regardless of the drug involved," and possession with intent to distribute, which is a felony and treated as a trafficking offense.44 The bill also provides for controls on import and export" and for industry regulation.46
With respect to marijuana, the bill finally acknowledges the need for medical research and establishes a Committee on Marihuana to study the drug's pharmacological effects.47 Second, with respect to drugs generally, and marijuana in particular, the bill reduces the outrageous penalties enacted in the 1950's. It would appear that Congress has finally recognized that severe punishments have little or no deterrent value.48 The lawmakers may also have abandoned the "stepping stone" notion. The testimony of Dr. Stanley Yolles, former Director of the National Institute of Mental Health, that less than five percent of marijuana smokers go on to hard drugs, was stressed during debate on the bill .49 The fact that this testimony was not seriously challenged indicates' that Congress has finally focused on the possible harm of marijuana to the user as the primary rationale for its prohibition.
It is precisely on this point, however, that we find the first major defect in the Dodd bill. Marijuana continues to be classified with hard narcotics as a Schedule I drug, contrary to repeated testimony that marijuana is not a narcotic drug and has little or no harmful effects on the user.5° Dr. Yolles, although opposed to legalization on the ground that medical knowledge was too tentative, particularly with regard to the drug's effects on a chronic adolescent user, stated:
To equate its risk-either to the individual or to society-with the risks inherent in the use of hard narcotics is-on the face of it-merely an effort to defend an indefensible, established position that has no scientific basis.51
Our second major objection to the bill is its perpetuation of grossly dissimilar penalties for possession and sale.52 As we noted above, users and traffickers tend to be the same people, and the professional pusher has little if any place in the distribution of marijuana, as the pattern of hand-to-hand exchange among friends is repeated on college campuses throughout the country. The relative fortuity that law enforcement officers may be able to obtain evidence of intent to sell in some instances of possession does not justify the disparity of penalties. Third, we agree with Senator Hughes that in matters of scheduling and in certain other areas, the Attorney General should not have the power to classify drugs without the permission of the Department of Health, Education and Welfare.53 The classification of drugs as dangerous substances is a medical-scientific question, not a law enforcement problem. Although the Dodd bill calls for the Attorney General to act with the advice of HEW and the Scientific Advisory Committee, it does not require him to heed that advice.54 Under the Dodd scheme the law enforcement mentality continues. An amendment, such as the one that was proposed by Senator Hughes during the Senate debate on the bill, allowing the Attorney General to reschedule only on a recommendation by HEW and the Scientific Advisory Committee, would insure that medical and scientific considerations would be definitive. The defeat of that proposal was a serious setback in making this bill a meaningful reform. The House version, however, includes most of the Hughes amendment, making HEW's recommendations binding on medical findings and expressly forbidding the Attorney General from overriding an HEW recommendation that a drug not be -controlled.55 We- can only- hope that the House version prevails: in- conference.
In conjunction with a requirement that HEW have the ultimate control over essentially scientific and medical questions, the -Committee on Maiiliuana which the- bill- would establish should 'be composed of individuals chosen by HEW with the advice of the Attorney General, instead of jointly.56 The function of the Committee would be almost exclusively medical, social and scientific, and as such it should be constituted *under' the direction 'of HEW. The subjects of the Committee's :rsarch a outlined by the Dodd bill57 should include a more definite set of'matters on which-the Committee must report including a specific determination about the real nature of marijuana- and' the degree of control, if any, required. It is absolutely necessary, given the tremendouspublicand official concern about marijuana, that we have a definitive statement on the drug as quickly as possible so that an intelligent public policy might finally be designed. Simple ignorance about- the drug persists in the United States Congress, despite the overwhelming evidence of the relatively harmless nature of marijuana. Even the bill's sponsor went overboard: "Certain types of marihuana do dreadful things to people . . . . Marihuana is a personality changer. It is a mind destroyer." 58 - Senator Dodd supported his statement by the latest sensationalist accounts of marijuana's crime-provoking and incapacitating 'tendencies-case studies on toxic psychoses suffered by soldiers in Vietnani.59
- In conclusion, the Dodd bill, when compared with earlier statutes, reflects some of the major changes in the official view of marijuana which took place during the sixties. By 1970 it has been almost univer'sally recognized that the number of users of marijuana has increased tremendously and that harsh penalties, including minimum mandatory sentences, do not deter. Also abandoned is the notion that marijuana is the "stepping stone" to hard drugs. Unfortunately the Dodd bill fails to reflect many other findings. There still persists a strong feeling that marijuana is seriously harmful, evidenced by the bill's classification of marijuana with heroin. Furthermore, the bill's punishment of "traffickers" in marijuana more harshly than possessors reflects a continued misapprehension about the nature of the marijuana trade." However, despite its shortcomings, the Dodd bill, especially through its Committee on Marihuana, leaves open the possibility of substantial changes in the legal status of marijuana in the future.
C. Postscript: The Dodd Bill Becomes the Comprehensive Drug Abuse Prevention and Control Act of 1970
As this Article was going to press, the House version of the Dodd bill was enacted by Congress and signed into law by the President as the Comprehensive Drug Abuse Prevention and Control Act of 1970.61
1 See, e.g., THE PRESIDENT's Coianssiox ox LAW ENFORCEMENT AND ADMINIEIRATION
OF Jusrzc, TASK FORCE REPORT: NARCOTICS AND DRUG ABUSE 27 (1967); Washington Post, June 20, 1970, S A, at 17, cols. 5-8 (Canadian drug commission).
2 See, e.g., J. KpLAN, MARIJUANA-THE NEW PROHIBITION (1970); Washington Post,
May 23, 1970, S B, at 9, cols. 7-8 (United Presbyterian Church General Assembly).
3 J. KAPLAN, supra note 2, at 2; Washington Post, supra note 1.
4 See Appendix A.
5 S. 3246, 91st Cong., 2d Scss. (1970).
6 San Francisco Chronicle, Aug. 17, 1970, at 4, cots. 1-3.
7 II WORKING PAPERS OF THE U.S. NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, STUDY DRAFT OF A FEDERAL CRIMINAL CODE 1090 (1970) (emphasis
8 The following account is taken from LIFE, Oct. 31, 1969, at 30-31; N.Y. Times, Jan. 3, 1970, at 14, cols. 1-2; Richmond Times-Dispatch, July 31, 1969, at 1, col. 6; id., Dec. 19, 1969, § B, at 1, cols. 1-2; Id., Jan. 3, 1970, at 1, cols. 4-6; Id., Jan. 5. 1970, at 12, cols. 1-2 (editorial).
9 Life, supra note 8, at 30.
10 Id. at 31
12 Mention was made of it in the Richmond Times-Dispatch, Dec. 19, 1969, § B, at 1, col. 1; Id., Jan. 3, 1970, at 1, col. 1.
13 In December 1969 the Virginia Coiunission for Children and Youth recommended that penalties for the possession, use and sale of marijuana be sharply reduced and that the substance not be classified with "hard" drugs such as heroin. Id., Jan. 15, 1970, S C, at 1, cot. 7.
14 N.Y. Times, supra note 8.
15 Richmond Times-Dispatch, jati. 5, 1970. at 12, col. 1 (editorial entitled "The Pardon").
17 Id., Feb. 26, 1970, 5 B, at 4, col. 1.
18 Id., cot. 3.
19 Id., Mar. 3, 1970, S B, at 1, cot. 5.
20 VA. CODE ANN. 5 54-524 (Supp. 1970).
21 Ch. 86,  Va. Acts 81, formerly CODE AIcN. 15 54-487 to -519.
22 VA. CODE Aue. S 54-524.2(h)(16) (Supp. 1970). .
23 Id. 154-524.58:1.
241d. S 54-524.101(a) (2).
25 Id. S 54-524.101(b) (1).
26 ld. S 54-524.101(c).
27 Id. S 54-524.103,
28 Delegate Walter B. Fidlcr summed U the argument for relatively light sentences for first offense possession and extremely tough ones for second and subsequent violations:
- This misdemeanor penalty on the first offense will straighten out most of the kids fooling with it . . . make them stop and think . . . scare them.
The ones who are really hooked on it will be back . . . we'll get them on repeat business [and imprison them upon a second offense).
Richmond Times-Dispatch, Mar. 3, 1970, 1 B, at 4, col. 6. See also id., Mar. 15, 1970,
F, at 6, col. 1 (editorial).
29 Ch. 535, [1958) Va. Acts 674-75, formerly VA. CODE ANN. 154-516 (1966).
30 VA. CODE ANN. 154-524.101(a) (2) (Supp. 1970).
31 HR. 18583, 91st Cong., 2d Sess. (1970).
32 S. 3246, 91st Cong., 2d Sess. (1970).
33 116 Coso. REC. 9162 (daily ed. Sept. 24, 1970).
34 Narcotic Addict Rehabilitation Act of 1966, Pub. L. No. 89-793, 80 Star. 1438 (codified in scattered sections of 18, 26, 28, 42 U.S.C.).
35 42 U.S.C. 553401-42 (Supp. V, 1970).
36 See note 47 infra and accompanying text. 37 S. 3246, 91st Cong., 2d Sess. S 101 (1970).
381d. S 202.
39 Id S 201. The Attorney General's power is limited in the House version. H.R.
18583, 91st Cong., 2d Sess. § 201(b) (1970).
40 116 CoNG. Rtc. 797 (daily ed. Jan. 28, 1970).
41 S. 3246, 91st Cong., 2d Sm. 55 501(c)(1), (2) (1970).
42 Id. S 501(c) (4).
43 Id. 5 501(e).
44 Id. 5501 (a) (1), (5). (c)(1), (2).
45 Id. §5 401-04.
46 id. SS 301-09.
47 Id. S 801.
48 116 CONG. Ric. 798 (daily ed. Jan. 28, 1970). S& also Washington Post, July 23,
1970, S B, at 4, cots. 2-6.
49 116 CONG. Rrc. 781 (daily ed. Jan. 28, 1970).
51 Id. at 791.
52 Compare S. 3246, 91st Cong., 2d Sm. S 501(e) (1970) (possession) (one year, $5,000, or both) (probation without entry of judgment available under 5 507 for those guilty of a first offense), with id. S 501 (a) (1), Cc) (2) (sale or possession with intent to sell) (five years, $15,000, or both).
53 116 CoNG. Rac. 770 (daily ed. Jan. 28, 1970).
54 S. 3246, 91st Cong., 2d Sess. 5 201 (1970).
55 H.R. 18583, gist Cong., 2d Sess. S 201(b) (1970).
56 See S. 3246, gist Cong., 2d Sess. S 801 (1970).
571d. S 801(a) (1).
58 116 CoNG. Rae. 782 (daily ed. Jan. 28, 1970).
59 Id. at 783. These studies may be meaningless. At one point Senator Hughes commented that under combat conditions he had become trigger happy without the aid of marijuana. Id. at 782.