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COMMONWEALTH V. LEIS AND WEISS PDF Print E-mail
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Books - Grupp, Marihuana
Written by G. Joseph Tauro   

 

Chief Justice Tauro's Opinion
 
Commonwealth v. Joseph D. Leis and Ivan Weiss, Findings, Rulings and Order on Defendants' Motions to Dismiss, Chief Justice Tauro's Opinion, Commonwealth of Massachusetts, Suffolk Superior Court, December 19, 1967. Copy provided by John F. Burke, Executive Clerk to the Chief Justice.
 
1. Prior Proceedings
 
The defendants, Joseph D. Leis and Ivan Weiss, are here on appeal from convictions in the East Boston District Court of violations of Gen. Laws. ch. 94, s. 205, illegal possession of a narcotic drug, and of s. 213A of the same chapter, conspiracy to violate the narcotic drug laws of the Commonwealth. They have also been indicted for illegal possession of a narcotic with the intent to sell it in violation of Gen. Laws. ch. 94, s. 217B.
 
2. Stipulated Facts
 
The parties have stipulated to the following facts:
 
The defendants were arrested at Logan International Airport in East Boston on March 11, 1967 by Sergeant Edmond Griffin and members of the Boston Vice Squad when one of the defendants presented a claims check for a trunk at an airline baggage terminal. The trunk contained fifty pounds of sand and five pounds of marijuana, which is classified as a narcotic in Gen. Laws. ch. 94, s. 197. Upon their convictions in the East Boston District Court on March 29, 1967 for violations of s. 205 and s. 213A of chapter 94 of the General Laws, each of the defendants was sentenced to one year in the House of Correction on each complaint, such sentences to run consecutively. It was further stipulated that neither of the defendants has been convicted previously for any violation of the narcotic drug laws of this Commonwealth.
 
3. Defendants' Motions
 
The defendants filed amended motions to dismiss and motions to substitute their amended motions to dismiss on August 28, 1967. The motions to substitute were allowed by this court on September 18, 1967, at which time a hearing on the amended motions to dismiss was commenced. The hearing was concluded on October 3, 1967.
 
The defendants claim that the statutory scheme of regulation relating to the possession, use and sale of marijuana in this Commonwealth, Gen. Laws. ch. 94, s. 197 to s. 217E inclusive, is unconstitutional because it is arbitrary, irrational and unsuited to the accomplishment of any valid legislative purpose. They further contend that it violates the defendants' rights secured to them by the Ninth Amendment to the Constitution of the United States and by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Finally, they argue that these statutes impose cruel and unusual punishments upon users, possessors and sellers of marijuana in violation of the Eighth Amendment as applied to the states by the Fourteenth.
 
4. Standing
 
Because of their convictions in the East Boston District Court for violations of s. 205 and s. 213A and also because of their indictment for violation of s. 217B, the defendants assert standing to attack the validity of the entire statutory scheme as it relates to the possession, use and sale of marijuana in this Commonwealth. In support of this contention, they rely primarily on Griswold v. Connecticut, 381 U.S. 479 (1965) and cases cited therein.
 
In Griswold, the defendants, the Executive Director of the Planned Parenthood League of Connecticut and its medical director, a licensed physician, were convicted of violating a general accessory statute for abetting the violation by a married couple of Connecticut's anti-contraception statute. In that case, the Supreme Court recognized the right of the defendants to invoke the rights of their patients to use contraceptives as a defense to the accessory charge. Griswold, therefore, is proper authority for the logically necessary proposition that a person charged with being an accessory "has standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be a crime." Id. at 481. It is not authority, however, for the proposition that a person charged with a violation of a specific section or sections of a comprehensive, statutory scheme, whose parts are legally separable, has standing to attack the constitutionality of the entire scheme. Neither is Barrows v. Jackson, 346 U.S. 249, (1953) which dealt with the enforcement of racially restrictive covenants in real estate transactions, authority for any such proposition.
 
5. Scope of Inquiry
In ruling on these motions, I limit myself to a consideration of the constitutionality of s. 205, s. 213A, s. 217B as applied and those other sections of chapter 94 of the General Laws upon which the validity of the foregoing three sections necessarily depends. I do not rule on the validity of any section of chapter 94 whose consideration is not essential to a determination of the constitutionality of s. 205, s. 213A or s. 217B as applied in the case at bar. Bowe v. Sec. of Comm., 320 Mass. 230, 245-246 (1946).
 
6. Propriety of Proceedings
 
There is ample authority for raising the question of the constitutionality of a statute by means of a pre-trial motion to dismiss (quash the indictment) when the alleged defect is apparent on the face of the record. Comm. v. Pentz, 247 Mass. 500, (1924), Comm. v. Oliver, 342 Mass. 82, (1961), Gen. Laws. ch. 278, s. 17. Yet, in cases such as this, where the defect cannot be ascertained from the face of the record, the usual procedure has been to raise the objection to the statute during the course of the case in chief. However, Gen. Laws. ch. 277, s. 47A specifically states that "(a)ny defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion."
 
Both the Commonwealth and the defendant agreed that these motions could be heard most expeditiously in a pre-trial hearing. To have proceeded otherwise, in view of the correctly anticipated length and publicity of the hearings, would have been extremely impractical and inconvenient.
 
The practice of hearing motions to dismiss for constitutional defects not apparent on the face of the record, where the taking of evidence not related to the offenses charged would be necessary, was advocated in People v. Utica Daw's Drug Co., 16 App. Div. 12, 225 N.Y.S. 3d 128, 4 A.L.R. 3d 393 (App. Div., 1962). There, the court, without any explicit statutory authorization, proposed that hearings on motions of this type be conducted in the same manner as pre-trial hearings on motions to suppress evidence. See Superior Court Rule, 1018; Comm. v. Penta, 1967 Adv. Sh. 535, 540-541.
 
I conclude that the instant proceedings, while unusual and possibly unique, were conducted in accordance with the law and represented the most practicable method of treating the contentions raised by the defendants' amended motions to dismiss.
 
7. Fundamental Rights
 
The defendants maintain that among the hierarchy of individual rights guaranteed by the Constitution of the United States, there are certain fundamental rights which may be abridged by the states only upon the showing of a compelling state interest. These rights encompass those "privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Meyer v Nebraska, 262 U.S. 390, 399, (1923). In addition to those specifically enumerated in the Constitution, they also include the right to travel freely, to contract, to acquire useful knowledge, to marry, establish a home, raise a family, and educate children to earn a livelihood, to exercise the franchise, to read, to inquire, to teach, to associate and to privacy in one's associations. See Meyer v. Nebraska, supra; Aptheker v. Sec. of State, 378 U.S. 500, (1964); Spevak v. Klein, 35 L.W. 4140, (1967); Griswold v. Connecticut, supra; and cases cited at 482-483. Harper v. Va. Bd. of Elections, 383 U.S. 663, (1966).
 
Although no decision appears to have attempted to propound an all inclusive list of fundamental rights, an examination of those cases cited by the defendants indicates that only those rights are to be considered as fundamental whose continuation is essential to ordered liberty. In other words, fundamental rights are those without which democratic society would cease to exist. Furthermore, those rights which are recognized as fundamental are also, in many instances, closely related to some commonly acknowledged moral or legal duty and not merely to a hedonistic seeking after pleasure. No claim of any such duty which would demand the possession, use or sale of marijuana has been advanced in this case. See People v. Woody, 40 Cal. Rptr. 69, 394 P. 2d 813, (1964).
 
I conclude that the alleged rights of the defendants to possess, use or sell marijuana, which I find to be a harmful and dangerous substance, is neither essential to the preservation of ordered liberty or to the orderly pursuit of happiness by free men nor required by any commonly recognized legal or moral duty. I rule that these alleged rights do not rise to the level of fundamental rights nor fall within the periphery or penumbra emanating from such rights. Therefore, it is not necessary that a compelling state interest be shown in order to subject them to regulation under the exercise of the state's police power.
 
8. Extent of Police Power; Burden of Proof; Presumption of Validity; Test of Validity
 
The non-fundamental right to possess, use or sell intoxicating substances such as marijuana or alcohol can be regulated or even absolutely prohibited by the state in the exercise of its police power, provided such statutory restrictions are reasonably suited to achieve a valid legislative purpose. Clark Distilling Co. v. West. Md. Rwy. & State of W. Va., 242 U.S. 311, (1917); Crane v. Campbell, 245 U.S. 304, (1917); Hornsby v. Allen, 326 F.2d 605, 609, (1964).
 
A properly enacted statute is presumed to be constitutionally valid and the burden is upon its assailants to demonstrate its unconstitutionality.
 
"Unless the act of the Legislature cannot be supported upon any basis of fact that can reasonably be conceived to sustain it, the court has no power to strike it down as violative of the Constitution." Sperry & Hutchinson v. Dir. of Div. of Necessities of Life, 307 Mass. 408, 418, (1940).
 
Thus, when enacting legislation in the exercise of the state's police power, the Legislature is presumably supported by facts known to it "unless facts judicially known or proved preclude that possibility." So. Carolina Hwy. Dept. v. Barnwell Bros., 303 U.S. 177, 191, (1938); Borden's Farm Prod., Inc. v. Baldwin, 293 U.S. 194, 209, (1934); U.S. v. Carolene Prod. Co., 304 U.S. 144, 153, (1938); Sperry & Hutchinson Co. v. Dir. of Div. of Necessities of Life, supra; Merit Oil Co. v. Dir, of Div. of Necessities of Life, 319 Mass. 301, 305, (1946); Coffee-Rich, Inc. v. Comm'r of Pub. Health, 348 Mass. 414, 422, (1965).
 
During the course of these proceedings, there was some reference to the legislative history of our narcotic drug laws or rather, more properly, to the lack of any such complete history. While the existence of such a legislative history may be helpful in ascertaining the intent of the Legislature when construing a statute, it is not, however, essential to a determination of the points in issue in this case. The court's function in a case such as this is not to conduct an historical survey to determine the facts known or reasonably conceived to exist by the Legislature at the time of the statute's enactment. Rather, it is to determine whether facts now exist or could now be reasonably conceived to exist by the Legislature which would sustain the statute. To rule otherwise would involve the courts in the absurd position of upholding clearly erroneous statutes on the grounds that they were reasonable in the light of the state of knowledge existing at the time of their enactment and of striking down presently justifiable statutes on the grounds that the Legislature could not have known the facts necessary to sustain them at the time of their enactment.
 
Since legislative regulations are of continuing effect until they expire by their own terms, they are repealed or are invalidated by the courts, I rule that they should be tested according to the facts known or reasonably conceived to exist at the time of their challenge. This is especially so in view of the fact that amendments were made to s.197, as late as 1966. St. 1966, c.71, s.1, s.2.
 
10. Inclusion of Marijuana as a Narcotic
 
The defendants argued that Gen. Laws. ch.94, s.197, is irrational and arbitrary insofar as it defines marijuana as a narcotic drug in the spine category with such "hard" narcotics as morphine, cocaine and heroin.
 
The testimony elicited at the hearing from expert witnesses indicated that the term "narcotic," as currently used, is a legal term with no precise, technical meaning, and is employed to describe a varied assortment of harmful and dangerous drugs. Section 197 makes no effort to provide a generic definition of "narcotic" but resorts to definition by specific inclusion. The fundamental question with regard to such a definition, then, is whether those drugs included in it are so distinguishable from one another as to render marijuana's classification as a narcotic so arbitrary and unreasonable as to be unconstitutional.
 
Despite some pharmacological differences between other drugs, such as heroin, and marijuana and despite the physiological differences in their effects, most notably with regard to physical dependence, I do not find that the inclusion of marijuana in the statutory definition of a narcotic drug is constitutionally offensive. People v. Stark, 157 Colo. 59, 66, 400 P.2d 923, 927 and cases cited therein.
 
As with the other drugs included in s.197, the use of marijuana does cause psychic disorientation. It is a hallucinogenic, mind altering drug whose common usage and usual effect is to cause a state of euphoria or intoxication and which can lead to the user's habitual, psychological dependence on the drug.
 
The term "narcotic" is broad enough to include marijuana as well as the other drugs proscribed by s.197. The failure to include other known drugs, such as alcohol, or yet undiscovered synthetics in this category either by generic definition or specific inclusion does not make marijuana any less of a narcotic.
 
11. Reasonableness of the Legislation:
 
DANGERS OF MARIJUANA
 
This Commonwealth's statutory scheme of regulating the possession and sale of narcotic drugs, admittedly a virtual prohibition as applied to marijuana, is predicated upon the premises that its use is harmful or dangerous and that its strict regulation and virtual prohibition is a rational means of preventing the harm and damage attendant upon its use. The next and central issue would logically seem to be a determination of whether there are facts in existence or which reasonably could be conceived to exist that would sustain a legislative conclusion that the use of marijuana is harmful or dangerous.
 
It is my opinion, based on the evidence presented at this hearing, that marijuana is a harmful and dangerous drug.
 
The effects of marijuana are not readily predictable and, to a great extent, depend upon and accentuate the psychological predisposition of the user. The drug, as it is commonly used, has as its primary and, as far as I can ascertain, its only purpose the induction of a state of intoxication or euphoria. While under the influence of marijuana, a person's mental processes are disoriented; his perception of time and space is distorted; his coordination is impaired, but his strength remains undiminished. Marijuana tends to cause the user to lose perspective and to focus his attention on one object to the exclusion of all others.
 
The drug has a great attraction for young men and women of college age or less during the formative years when they should be gaining the education and experiences upon which to build their future lives. Furthermore, there is widespread emotional instability among the users of marijuana. The use of the drug allows them to avoid the resolution of their underlying problems rather than to confront them realistically. In addition, users naturally associate with other users, who are also likely to have emotional problems, and compound one another's difficulties. In such persons, the use of marijuana may cause temporary psychotic episodes. They develop a drug-oriented culture which is marked by a peculiar proselytism, whereby users strive to introduce non-users to the drug. Marijuana users customarily use the drug with the specific intent of becoming intoxicated. No evidence was introduced to show any significant number of persons who use marijuana to achieve a state of relaxation short of intoxication. Even the so-called regulatory process of "self-titration" is employed to attain a desired state of intoxication, not to stop short of intoxication.
 
A great deal of testimony was devoted to the addictive qualities of marijuana. While marijuana is not physically addictive in the sense that heroin is, it can cause psychological dependence in the user. The user can come to depend upon marijuana as a crutch and its usage becomes habitual. It is this form of addiction which modern medical experts assert is the proper definition of the term.
 
Given the effects of marijuana and the character of its users, the possible dangers associated with its use are clearly discernible. Its tendency to release inhibitions, both verbally and actively, and the dependence of its unpredictable effects on the disposition of the user, marijuana can be especially volatile when used by a despondent, hostile or unstable person. Its impairment of motor coordination, coupled with the retention of muscular strength and the distortion of time and space relationships, makes its use extremely hazardous among those operating machinery, especially automobiles, and among those individuals responsible for the care and custody of other persons, such as the parents of young children.
 
The propensity of marijuana users to concentrate on one object, while ignoring all others, leads to a loss of awareness and frustrates the formation of rational judgments by them. This narrow, subjective preoccupation of users, especially the young, with drugs and their effects can cause irreparable disruptions of education, family ties or careers whose adverse personal and social effects can last long beyond the period of actual marijuana use. Further, by centering their attention on the attainment of a state of euphoria through drug consumption, marijuana users are apt to neglect their health and that of others in their care and to submit to a life of indolence. The effects of these patterns of living are not limited to the users themselves. Ultimately, society must assume the burden created by their use of marijuana.
 
Much of the testimony concerned the relationship between the use of marijuana and the progression to "hard" narcotics, between its use and crimes other than violations of laws pertaining to marijuana and between its use and sexual promiscuity. There is no allegation by the Commonwealth that physical addiction to "hard" narcotics, crime and promiscuity would disappear if marijuana use were to disappear. Nor is there any claim put forth that marijuana use necessarily and inevitably leads to addiction to "hard" narcotics, crime and promiscuity in each and every case. Nevertheless, there is abundant evidence that marijuana use is closely associated with these other social evils in a great many instances. Although no definitive link of efficient causality can be demonstrated with scientific exactness at present, the coincidence between addiction to "hard" narcotics, crime and promiscuity is too great to be passed off as merely accidental. The defendants answer that the fault lies not with the nature of the drug but rather with the user and his environment. Admittedly, in such complex and intertwined social problems, no one factor can be singled out as the sole efficient cause. Yet, it is reasonable in the light of facts now known to conclude that the use of marijuana contributes to "hard" narcotic addiction, crimes other than those related to the violation of the marijuana laws and sexual promiscuity. Furthermore, if the fault does lie with the instability of the persons prone to use marijuana, it would seem that this fact would lend added support to the laws prohibiting its use.
 
REGULATION VS. PROHIBITION
 
The defendants also contend that the prohibition of marijuana exceeds the power of the Legislature, that marijuana should be regulated, as is alcohol, not prohibited. This argument merges with the contention that our narcotic drug laws, as applied to marijuana, constitute a denial of the equal protection of the laws and will also be dealt with further in conjunction with that latter contention. However, the state may, in the exercise of its police power, absolutely prohibit the possession and use of alcohol by individuals. Crane v. Campbell, supra. The fact that the Legislature has chosen to regulate the use of alcohol and prohibit the use of marijuana does not deny its power to prohibit the use of marijuana. The difference in the legislative treatment of the two substances is reasonable in view of factual differences between them.
 
The customary use of alcohol, by the glass or bottle, is conspicuous and, thereby, susceptible of regulation and limitations regarding time, place and age. The customary use of marijuana, by smoking, is not conspicuous and is not susceptible of regulation and limitations regarding time, place and age. It can be used in public places, at work, on the streets and in vehicles without detection until its effects are manifested, whereas comparable uses of alcohol can be detected much more readily.
 
The social harm caused by the abuse of alcohol cannot be denied. The number of alcoholics and of highway fatalities and crimes which occur under the influence of alcohol speak for themselves, but the fact remains that alcohol has uses other than as a means of becoming intoxicated. The vast majority of alcohol users do not consume it with the intention of becoming intoxicated. It has a social value as a relaxant and, in some instances, as a therapeutic. Marijuana, on the other hand, has no generally recognized medical use and is used solely as a means of intoxication.
 
The history and cultural acceptance of alcohol and marijuana in this country cannot be ignored. Alcohol has been in widespread use among the general population since colonial times. It is customarily consumed with meals and on social occasions which do not center on the avowed purpose of drinking to the point of intoxication. So ingrained is its use in our culture that all prior statutory and constitutional prohibitions of its use have failed. Marijuana also first appeared in our country during the colonial period, but its use was never widespread among the general population. As has been noted previously, its use is not associated with any purpose other than to become intoxicated. Nor has its use become so ingrained in our culture as to make laws strictly prohibiting its use impractical.
 
In view of the undesirable effects attendant upon the use of marijuana, the state has not exceeded its authority or acted arbitrarily and unreasonably by prohibiting the use, sale and possession of marijuana, a harmful and dangerous drug, while merely regulating the use, sale and possession of alcohol, which is also capable of serious abuse.
 
The defendants maintain that the narcotic drug laws, as applied to marijuana, are not wholesome and reasonable, as required by the Constitution of Massachusetts, Pt.2, C.1, S.1, Art.4, in that they are criminogenic. Such an assertion by itself begs the question. Any statute which prohibits certain acts is criminogenic insofar as the commission of the prohibited act constitutes a crime. However, the defendants do raise a worthwhile point. They claim that the link between crime and marihuana use occurs because the marijuana user must resort to criminals for his supply and that this contact leads to involvement with other criminal activity. There is undoubtedly some truth in this statement. However, much of the criminal and anti-social activity of marijuana users undoubtedly arises from the instability of the user and the effect of the drug itself as well.
 
The Legislature is faced with a dilemma. It knows from past experience with alcohol that the prohibition of marijuana will create problems. It also knows that the toleration of the use of marijuana, even with regulation, will also create problems. The Legislature must balance and weigh the evils attendant upon prohibition against those attendant upon the toleration of its regulated use. I cannot say that the provisions of Gen. Laws. ch.94, s.197 to s.217E inclusive, as applied to marijuana, are not "reasonable and wholesome."
 
UNREASONABLE BROADNESS OF DEFINITION
 
The defendants also maintain that the statutory definition of marijuana is too broad and, therefore, arbitrary and irrational in that it prescribes the possession or sale of parts of the female cannabis plant which do not contain the hallucinogenic ingredient of marijuana, tetrahydrocannabinol, as well as the harmless male plant and other harmless species of the cannabis plant. However, there was undisputed testimony that it would take an expert to distinguish marijuana from other processed parts of the female, marijuana-producing plant or of the male plant or of other harmless varieties of the cannabis plant. This broad definition is necessary to provide for effective enforcement. The extension of the definition of marijuana in Gen. Laws. ch.94, s.197 to include all of the female plant, the male plant and harmless varieties of cannabis is not arbitrary and unreasonable. If the definition were contracted to cover only those specific portions containing the hallucinogenic substance, the enforcement of the statute with regard to marijuana would be a practical impossibility.
 
In their argument, the defendants set up the hypothetical situation of an individual's being prosecuted for a violation of s.213A because, unknown to him, harmless varieties of cannabis sativa grew wild on his property. I have never heard of such a case. Nor is any justiciable question in this regard raised in the case at bar. Therefore, I decline to rule on the constitutionality of s.213A and s.197 as applicable to such circumstances. Bowes v. Secretary of the Commonwealth, 320 Mass. 230, 245 (1946).
 
MEDICAL USE OF MARIJUANA
 
The defendants allude to the problems confronted by physicians in deciding whether they may employ a narcotic without violating the narcotic drug law. The statutes, Gen. Laws. ch.94, s.197, s.199F, s.201 and s.205, cover this area. While these problems may be real, they are not relevant. The case at bar presents no justiciable issues involving the medical, instructional or experimental use of marijuana. Therefore, I also decline to rule on the validity of these sections as applied to such uses of marijuana.
 
12. Equal Protection
 
The defendants also argue that the diverse statutory treatment of alcohol and marijuana constitutes a denial of the equal protection of the laws in contravention of the Fourteenth Amendment to the Constitution of the United States. However, the evidence produced at the hearing established that, while both substances are dangerous, there is a factual difference between alcohol and marijuana which would sustain the different treatment accorded each by the Legislature.
 
Attempts to compare the dangers and evils associated with these two substances are both medically irrelevant and illogical. The ordinary user of marijuana is quite likely to be a marginally adjusted person who turns to the drug to avoid confrontation with and the resolution of his problems. The majority of alcohol users are well adjusted, productively employed individuals who use alcohol for relaxation and as an incident of other social activities.
 
The defendants' equal protection argument would fall even if marijuana's nature and effects could not be distinguished from those of alcohol. They rely on Skinner v. Oklahoma, 316 U.S. 535 (1942), in which the Supreme Court invalidated a state statute providing for the sterilization of "habitual criminals," a definition including the defendant chicken thief but excluding other criminals, such as embezzlers. There, the Court stated that "when the law lays an unequal hand on those who have committed intrinsically the same quality of offense . . . it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment." Id. at 541. The defendants also cite McLaughlin v. Florida, 379 U.S. 184 (1964), in which the Supreme Court invalidated a statutory prohibition of cohabitation between members of different races.
 
Neither Skinner nor McLaughlin, in which the denial of equal protection was an intrinsic element of the statutes in question, and which concerned basic rights, can be interpreted as exceptions to the general rule "that a state may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed" Central Lumber Co. v. So. Dakota, 226 U.S. 157, 160 (1912). The state may reach out and treat certain evils without dealing with every related evil. See N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 46 (1937) ; N.Y. ex rel. Bryant v. Zimmerman, 278 U.S. 63 (1928); Whitney v. California, 274 U.S. 357 (1926). A court cannot condemn the Legislature's failure to act in one area by invalidating prohibitions it has enacted in other similar or related areas. It would seem apparent that, if the Legislature is free to prohibit one activity and ignore another similar or related activity, then a fortiori, it may prohibit one and regulate the other.
 
The defendants attempt to rationalize this line of cases by arguing that they focus on kinds of behavior among which the Legislature is free to choose, while the essence of the marijuana-alcohol dichotomy is that the Legislature has proscribed the behavior of one class, those who use marijuana as their intoxicant, and tolerates the behavior of another class, those who use alcohol as their intoxicant. There are several defects in this argument. First of all, the law does not permit voluntary intoxication by means of alcohol. Gen. Laws. ch.272, s.44-48. Secondly, as has been stated previously, there are substantial differences between the usual users of alcohol and of marijuana. In light of the prevailing patterns of use of the two drugs, it is fair to characterize marijuana as an intoxicant and alcohol merely as a potential intoxicant. The Legislature might properly conclude that the consequences of the use of the two drugs are distinguishable and that alcohol is susceptible to regulation and marijuana is not.
 
In a certain sense, all penal statutes are discriminatory. They differentiate between those who engage in the proscribed forms of behavior and those who do not, but such discrimination is not vulnerable to attack under the Equal Protection Clause if any state of facts can reasonably be conceived to justify it. See Comm. v. Chamberlain, 343 Mass. 49 (1961); Connors v. Met. Dist. Water Supply Comm'n, 314 Mass. 33 (1943). On the other hand, a statutory discrimination must be found to be arbitrary unless it is based on some distinction bearing a substantial relationship to the purpose of the legislation. Russell v. Treas. & Rec'r. Gen'l. 331 Mass. 501 (1954) ; Comm'rs of Corp. & Taxation v. Cooperative League of America, 246 Mass. 235 (1923); Lindsey v. Nat'l Carbonic ,Gas Co., 220 U.S. 61 (1910). I rule that the Legislature was warranted in treating alcohol and marijuana differently.
 
13. Cruel and Unusual Punishment
 
The defendants have raised the contention that the penalties attached to violations of Gen. Laws. ch.94, s.205, s.213A and s.217B constitute cruel and unusual punishments in violation of the Eighth Amendment to the Constitution of the United States and, presumably, in violation of the Declaration of Rights of the Constitution of Massachusetts,_Pt.1, Art.26.
 
A somewhat analogous case, People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965), considered the same contention.
 
"With reference to the argument that the several offenses defined in the statute are punishable by 'cruel and unusual punishments' we hold that until some person has been convicted of a crime and a sentence has been imposed which is then asserted to be 'cruel and unusual' there is no justiciable issue presented.... Where there is a wide spread between the minimum and maximum punishment, whether any punishment is 'cruel and unusual' is a matter to be determined under all the facts and circumstances surrounding each offense." Id. at 68, 928.
 
Prior to sentencing, unless the minimum prescribed sentences are, in themselves, cruel and unusual, the defendants cannot be heard to say that they risk the imposition of a cruel or unusual punishment.
 
There is little authority to support the defendants' view, that they can raise the issue of cruel and unusual punishment at this preliminary stage of the proceedings. In Weems v. U.S., 217, 349 (1909), the Supreme Court did confine its consideration to the minimum sentence for falsifying a public record in the Philippine Islands. There, however, the statute demanded a sentence of twelve years and one day in confinement at cardena temporal, a holdover from the Spanish penal system, under which the defendant was not only imprisoned but also forced to work at hard and painful labor in chains and without any assistance whatsoever, and subjected to absolute, perpetual civil disqualification, civil interdiction and surveillance for life upon release. Clearly, even this minimum sentence was cruel and unusual, and Weems had, in fact, been sentenced to 15 years at cardena temporal.
 
The defendants raise another argument, based on Robinson v. California, 370 U.S. 660 (1962), which should also be considered. In that case, the Supreme Court held that the punishment of the mere status or condition of being a narcotics addict, a sickness and not a crime in the Court's view, was cruel and unusual. Robinson would only be applicable if the legislation in question and as applied prohibited and penalized the status or condition of being a narcotics addict. See also U.S. ex rel. Swanson v. Reincke, 344 F.2d 260 (2nd Cir., 1965) cert. den., 382 U.S. 869 (1965). Robinson, however, is restricted to a condemnation' of statutes punishing status, conditions or disease as contrasted to acts, such as use, sale or possession. Even if Robinson were to be extended to cover those acts constituting or compelled by the status, condition or disease, the expert witnesses have testified, without exception, that there is no status, condition or disease involved in the use of marijuana, that is, it does not cause physical addiction. Moreover, the violations with which the defendants have been charged include possession with intent to sell marijuana, Gen. Laws. ch.94, s.217B, and conspiracy to violate the narcotic drug laws of the Commonwealth, Gen. Laws. ch.94, s.213A, which involve no question of status, condition or disease, even though possession might if it could be shown that marijuana is physically addictive.
 
Defendants further contend that the penalties are excessive in relation to the seriousness of the offenses with which they are charged and also in relation to similar offenses regarding "hard" narcotics and alcohol. These contentions are closely related to the issues of equal protection and arbitrary classification previously discussed. The defendants attempt to read into the Eighth Amendment the proposition that punishments must not only be graduated and proportionate with regard to the particular offense charged but also in relation to penalties for other offenses. There is scant authority for such a proposition.
 
Weems v. U.S., supra, appears to be the only decision of the United States Supreme Court that even approaches such a result. However, cardena temporal for the falsification of a public record, unlike mere imprisonment for a term of years, was there viewed as so barbaric, indecent and conscience-shocking as to be classified as a cruel and unusual punishment in the abstract.
 
In Gallego v. U.S., 276 F.2d 914, (9th Cir., 1960), the court upheld a statute imposing a minimum five year prison sentence without suspension or probation for the first offense of illegal importation of marijuana. The statute was held not to "exhibit an inclination to visit upon offenders such as appellant a penalty so out of proportion to the crime committed that it shocks a balanced sense of justice." Id. at 918. See also U.S. ex rel. Swanson v. Reincke, supra, which clearly distinguishes both Weems and Robinson.
 
The right of the Legislature to impose apparently disproportionate penalties so long as they are not wholly arbitrary or unreasonable was upheld in Williams v. Oklahoma, 358 U.S. 576 (1958) in which the defendant claimed that the imposition of a death penalty for kidnapping was disproportionate in relation to a previously imposed life sentence for the murder of his victim.
 
"But the Due Process Clause of the Fourteenth Amendment does not, nor does anything in the Constitution, require a state to fix or impose any particular penalty for any crime it may define or to impose the same or 'proportionate' sentences for separate and independent crimes." Id. at 586.
 
In short, as is succinctly stated in the twin cases of Schultz v. Zerbst, 73 F.2d 668 (10th Cir., 1934) and Sansone v. Zerbst, 73 F.2d 670 (10th Cir., 1934) :
 
"The fixing of penalties for crime is a legislative function. What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty prescribed is clearly and manifestly cruel and unusual." Id. at 670, 672. See also People v. Stark, supra. at 68, 928.
 
The minimum penalty for unlawful possession of marijuana is a fine of not more than $1,000.00 or a term of imprisonment of not more than 31/2 (three and one half) years in the state prison or not more than 21/2 (two and one half) years in a jail or house of correction. Gen. Laws. ch. 94, s. 205. The minimum penalty for conspiracy to violate the narcotic drug laws is a fine from $500.00 (five hundred) to $5,000.00 (five thousand) dollars or imprisonment for not more than 5 (five) years in the state prison or not more than 2 (two) years in a jail or house of correction. Gen. Laws. ch. 94, s.213A. The minimum penalty for the first offense of illegal possession of marijuana with the intent to sell it is a term of imprisonment in the state prison of no less than 5 (five) nor more than 10 (ten) years. Gen. Laws. ch. 94, s.217B. For subsequent offenses, the term of imprisonment is from 10 (ten) to 25 (twenty-five) years. In all of these instances, except for the second and subsequent offense of possession with intent to sell, the execution of the sentence may be suspended and parole and probation may be granted. The penalties provided for in Gen. Laws. ch. 94, s.205, s.213A and s.217B, as applied to the stipulated facts of this case are not unconstitutional as being cruel and unusual.
 
14. Protection of Privacy
 
According to the defendants, the enforcement of the virtual prohibition of the possession, use or sale of marijuana must necessarily entail unreasonable invasions of privacy by the police. Although this problem was discussed in Griswold v. Connecticut, supra, the holding of that case is not predicated on any invasion of privacy by police searches for evidence of the crime but rather on the absence of the state's authority to interfere with marital relations without a compelling reason.
 
That marijuana may customarily be used in the privacy of the home does not preclude the prohibition by the state of its use. "Crime, even in the privacy of one's quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing." Johnson v. U.S., 333 U.S. 10, 14. Thus, the citizen's right to privacy is not to be protected by excluding otherwise criminal conduct from regulation as long as it is confined to the home, but rather by a strict adherence to the statutory and constitutional provisions relating to the
power of the police to arrest and search warrants. Furthermore, there is nothing in facts of this case which raise any justiciable iss
of the courts to issue legations or stipulated on this point.
 
CONCLUSION
 
To my knowledge, this has been the most extensive, judicial inquiry into the legal and factual aspects concerning the use of marijuana. At this hearing, many eminently well qualified experts on the subject from here and abroad have had their opinions subjected to searching cross-examination and careful analysis by learned and thoroughly prepared counsel. One of the principal factual issues presented for determination is whether marijuana is a harmful and dangerous drug.
 
Several legal issues are raised by defendants' motion to dismiss, but basically this is the question which requires an answer.
 
I found the testimony of the experts in the various branches of science very illuminating and helpful—although often controversial. On the other hand, there were areas of agreement among them, which are delineated elsewhere in this decision.
 
Of grave and immediately apparent importance is the growing appeal marijuana has for young people of high school and college age and for those having underlying instabilities or personality disorders of varying degrees. In many instances, the ones least capable of coping with the mind altering effects of the drug are the ones most likely to be adversely affected by its use.
 
The serious effects of marijuana superimposed upon mental and personality disorders have been described at length and in great detail by competent experts. I find this testimony persuasive. Actually, there is little, if any dispute, in this area between the defendants' experts and the Commonwealth's experts. Furthermore, all of them testified that they do not advocate the use of marijuana.
 
In its application to youngsters of high school and college age, the problems presented by the use of this drug assume tremendous proportions. There is no persuasive evidence that its use produces any beneficial results. The defense asserts that the drug causes no direct physical harm. Neither do heroin and other "hard" drugs, but few youngsters dare to experiment with these. Unfortunately, many marijuana users do not have the same apprehension or fear concerning its use, as they do of the physically addictive drugs. This, I feel, is one of the real dangers which permeates the problem. Marijuana is likely to be used, at least initially, as a lark, as an adventure without fear of serious consequences. Thus, the first and apparently innocuous step may be taken in a succession of others possibly leading to drastic results.
 
This phase of the problem is further complicated by those who unwittingly and perhaps unintentionally create the impression that marijuana is harmless, because it is not physically addictive. The young seize upon such utterances to rationalize their conduct.
 
While it is generally agreed that marijuana does not cause physical addiction as do heroin and the other "hard" narcotics, there was ample and compelling testimony that its use causes psychological dependence. Its users may not be driven to its repeated use by a physical craving, but they may come to resort to it habitually in order to compensate for real or imagined inadequacies or to avoid real or imagined problems. This pernicious and insidious form of addiction is sometimes the first step in the direction of the more potent or physically addictive drugs.
 
It is a universally accepted fact that marijuana is a mind altering drug and is used for that specific purpose. It is also a generally accepted fact that the drug has no medically recognized therapeutic value. In addition to its adverse effect on ill-adjusted persons, at best, it provides an insubstantial crutch to its user, giving him a feeling of intoxication in varying degrees. It provides a false sense of capabilities, strength and courage. This is of great importance when the drug user is faced with a problem which demands exercise of judgment and where the drug substitutes a euphoric and unreal feeling of exhilaration for the calm and logical thinking required by the circumstances.
 
In place of positive thinking and positive action, the user's mind is altered and distorted causing serious interference with his powers of perception and coordination and his ability to judge the passage of time and space.
 
The defendants assert that marijuana provides a certain amount of happiness or relaxation without harmful results. I am not persuaded by the evidence that the resulting euphoria is, in fact, a pleasurable and rewarding experience. I remain unconvinced by the evidence that the average user is made happy or contented—even for a short period of time. The normal brain function is altered or suspended, making the user more susceptible to the influence of others. The use of the drug also tends to accentuate any tendency toward improper conduct. In addition, it induces an abnormally subjective concentration on trivia. In short, marijuana produces a state which is analogous to a temporary mental aberration. Its prolonged and excessive use may induce a psychotic state, especially in those individuals with pre-existing psychological problems.
 
In my opinion a proper inference may be drawn from the evidence that there is a relationship between the use of marijuana and the incidence of crime and anti-social behavior. Within the limitations of our present statistical information, we can only speculate as to the precise nature and scope of the relationship. This is, to a certain degree, the hidden aspect of the problem. We cannot, at present, ascertain to what extent marijuana is a contributing factor in motor vehicle and other accidents, school dropouts, criminal activity, cases of "hard" narcotics addiction, broken homes and ruined careers, irrational and deviate acts, or losses of ambition and of the desire to become productive members of society. Although the extent of such results may be speculative, it is my opinion that a strong inference may be drawn from the evidence presented at this hearing that a causal relationship does exist between the use of marijuana and these assorted, social evils. In order to establish more firmly the nature and scope of this relationship, exhaustive and incisive studies must be undertaken.
 
In any event, there is no indication from the evidence that the user of marijuana becomes, through its use, a better student, a better worker, more dedicated to the public interest, or more efficient or productive in any undertaking. On the contrary, there is convincing evidence that the converse is true.
 
Many succumb to the drug as a handy means of withdrawing from the inevitable stresses and legitimate demands of society. The evasion of problems and escape from reality seem to be among the desired effects of the use of marijuana. Its use is not so much a symbol of dissent in order to effectuate changes in our social system, but rather a manifestation of a selfish withdrawal from society.
 
The lessons of history and the experiences of other nations teach us that such artificial alteration of the normal brain function by the use of drugs has been harmful both to the individual and to society in which he lives. The evidence clearly indicates that where a sub-culture has developed which tolerates the general use of marijuana or its derivatives, the harmful results have become clearly manifest. It is of great significance that the vast majority of nations have outlawed its use.
 
Although its relevancy is doubtful, there was the unavoidable comparison of marijuana with alcohol. Alcohol has some therapeutic value and its use is not limited solely to the achievement of a state of intoxication or the alteration of the mental processes. Furthermore, the use of alcohol is supported here and elsewhere by many centuries of cultural experience. Admittedly, its misuse has posed serious problems and continues to do so. But these problems, as they now exist, could be greatly expanded and compounded by the legalization of the use of marijuana. It is difficult to justify any law which would permit an expansion in the use of marijuana to the point where conceivably it would fall into the same category as alcohol and become a part of our national culture. That the use of marijuana may have results similar to those associated with the abuse of alcohol is hardly a persuasive argument for its legalization.
 
Marijuana users must, of necessity, consort with opportunistic pushers and other hardened members of the criminal element. In the case of youngsters, this is especially dangerous. It introduces them to and establishes a rapport with persons whose total influence is apt to be corruptive. As serious, if not more so, as the young user's association with pushers and the criminal element is the frequency, duration and intimacy of his contacts with other basically unstable users who not only involve him in their problems but compound his own.
 
The defendants argue that the statutes are also criminogenic in nature, as well as cruel and unusual, in that they prescribe serious criminal penalties for what may be relatively minor offenses. These arguments certamly do, 'not apply to pushers. The legislation might profitably be reviewed with regard to the penalties provided for possessors as opposed to pushers or where the evidence indicates a first offense with the improbability of repetition. In such cases, the judge should be given wide discretionary powers so that the imposition of a criminal record may be avoided whenever warranted by the facts.
 
Because of the harmful and dangerous nature and effects of marijuana, the statutory prohibition of its possession, sale and, thereby, its use does not constitute a legislative interference with any fundamental right of a citizen. Nor do the specific provisions involved, Gen. Laws. ch.94, s.205, s.213A and s.217B as applied to these cases, involve any denial of due process or of the equal protection of the laws. Neither do they present any issue of cruel and unusual punishment. Nor does their proper enforcement necessarily entail any unreasonable invasion of privacy. Sections 205, 213A and 217B of chapter 94 of the General Laws bear a real and substantial relation to public health, safety, morals and the general welfare and are a valid exercise of the police power of the Commonwealth. Sperry & Hutchinson Co. v. Dir. of Div. of Necessities of Life, supra, at 418; Coffee-Rich, Inc. v. Comm'r of Pub. Health, supra, at 422.
 
On the basis of the findings and conclusions above, I further conclude and rule that the defendants, Joseph D. Leis and Ivan Weiss, are not entitled to have any of the indictments or complaints against them in these cases (Suffolk Superior Court Nos. 28841-2, 28844-5, 28864-5) dismissed on any of the grounds alleged in support of their amended motions to dismiss, which are hereby denied.
 
ENTERED: /s/ G. Joseph Tauro
December 19, 1967. G. Joseph Tauro
Chief Justice of the Superior Court
 
 

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