FOR FIFTY YEARS a latent social consensus supported the nation's marihuana laws. This marihuana consensus was buttressed by a number of ideological and descriptive propositions. The belief that marihuana was a "narcotic" drug was of primary importance. The statutory definitions of marihuana in most states codified this, especially after the passage of the Uniform Act. In other states and in federal legislation, penalty provisions were based upon it. In legal status and in the legislative mind, marihuana was indistinguish-able from the opiates and cocaine.
Marihuana prohibition rested in large part on the essential premise of the narcotics policy that use inevitably became abuse. The view that narcotics users were incapable of moderation was reflected in the overwhelming urge to refer to marihuana users as "addicts" and to postulate a strong psychological compulsion for use even if no physiological compulsion existed. There was also a predisposition to attribute other dysfunctional effects to mari-huana. Policy makers were inclined to look for high incidences of mental deterioration, psychosis, and violent crime.
Another essential condition of the marihuana consensus was the demography of that portion of the population using it. Because it was used primarily by insulated ethnic minorities, Mexicans and blacks, the drug was always associated with the lowest levels of the socioeconomic structure. This had several important consequences. First, since the user populations were associated in the public mind with crime, idleness, and other antisocial behavior, a causal re-lationship between marihuana and such behavior seemed evident. Second, since these insulated minorities had no access to the policy-making and public opinion processes, hypotheses supporting this consensus went unchallenged. Sharing the basic public policy predisposition, the medical and scientific communities felt no particular need to study the drug and its effects, especially after cannabis was removed from the U.S. pharmacopoeia. The little research which was conducted tended to undercut prevailing beliefs, but these inconsistencies remained unpublicized because there was no constituency interested in revealing them. The narcotics bu-reaucracy was also, of course, inclined to suppress them.
Final support for the marihuana consensus came from ideologi-cal factors reflected in American public policy during the first six decades of this century. Resting on society's interest in individual productivity and its preference for cultural homogeneity was a legislative tendency to inhibit any personal behavior thought to be incompatible with society's best interests. Two world wars, the depression, several recessions, the Korean conflict, and a cold war, kept the nation on the defensive. There was little tolerance for personal deviance. The notion that there was a sphere of personal activity immune from governmental scrutiny lost its constitutional footing. Legislatures continually sought to compel sexual, sensual, and even intellectual orthodoxy. As increased geographic mobility, institutional growth, and mass communications gradually loosened the capacities of nonlegal institutions—the family, church, schools—to regulate behavior, society relied more and more on the legal system, and the criminal law in particular, to symbolize and enforce the dominant order.
Beginning in the mid-sixties, the marihuana consensus evaporated, as each of its essential supports wobbled and fell away. The drug's sudden attraction to the nation's university population was of primary importance. Although marihuana arrests and seizures had hit their all-time low point in 1960,1 by 1967 use of the drug was associated in the public mind with life on the campus. This new class of users, regardless of its size, had direct access to the public opinion process because it was drawn from the middle and upper socioeconomic brackets. As a result, this new use pattern incited a broad social awareness of the drug and awakened in the scientific and medical communities a new interest in research.
It is difficult to account entirely for this new interest in mari-huana and to pinpoint exactly when it began. In all likelihood marihuana use may have been the most visible by-product of the merger of several different social and political movements in the mid-sixties. Perhaps the most specific of these was the national publicity given the LSD experimentation at Harvard University by Drs. Leary and Alpert in 1963. As a growing segment of the aca-demic fringe began to preach consciousness-expansion, student attention and curiosity in the Northeast became focused on drugs and drug use.
At the same time, the so-called psychedelic movement was launched on the West Coast, particularly in the San Francisco area. Tom Wolfe has described the role of author Ken Kesey and his "Merry Pranksters" in this movement and its attendant subculture. As the Haight-Asbury scene and the West Coast drug culture at-tracted interest in the press, student curiosity across the country was aroused, as was that of the intellectual avant-garde in Green-wich Village and similar urban communities.
A much more pervasive social development influencing the interest in marihuana was a general loosening of restraints imposed by the legal system on behavior with "moral" overtones. Beginning with the widely acclaimed civil rights movement of the early 1960s, proceeding through the free speech movement, the antiwar move-ment, and the ecology movement, the decade was characterised by protest and civil disobedience. Martin Luther King's appeal to the higher moral law and the righteousness of his cause made a deep impression on the national conscience, piercing most deeply the souls of the country's youth. The civil rights movement weakened the moral force of the law as an institution by illustrating the evil which could be codified by secular authorities. This tendency 'Was exacerbated, particularly among those in college, by the Vietnam escalation, which began in 1965. Disobedience of the marihuana laws may have been a convenient offspring of the protest attitude. Marihuana, of course, was ready-made for such a symbolic use, having been miscast in the past and being so easily aligned against the establishment's own alcohol.
Whatever its genesis, the change in use patterns immediately affected a number of conditions upon which the marihuana con-sensus rested. Most obvious was the challenge to the drug's classification as a narcotic. The revelation that marihuana was substantially different from the opiates and cocaine made a major impact on public attitudes. The substitution of other labels such as "dangerous drug" or "hallucinogen" did not negate this impact; nor did the initial judicial conclusions that the legislature could legitimately classify marihuana as a "narcotic" even though it was not technically accurate to do so.2 That marihuana was sub-stantially different immediately dissipated the application of the narcotics consensus.
The scientific propositions attending the application of the narcotics consensus to marihuana had always been assumptions tied to broader social perceptions of the using class. But these assumptions no longer coincided with social expectations when use of the drug was taken up by society's privileged classes. The basic proposition that use inevitably became abuse was quickly chal-lenged. It was as important to the drug's new advocates to emphasise that it was not "addictive" as it had been for its foes to maintain that it was. This society's fear of drug dependence had by now reached the level of moral antipathy, and marihuana's innocence in this regard was an important revelation, even though the information had been available from the earliest prohibitory days. Similarly, the causal relationships between marihuana and crime, idleness, and incapacitation were now more difficult to maintain. The new users were not "criminals" or social outcasts. They were sons and daughters of the middle and upper classes. In short, when the consensus against marihuana lost its sociological support, it immediately lost its scientific support as well.
The continued vitality of its ideological support had also become debatable. Whereas society formerly imposed severe restraints on the individual's personal and social conduct in order to reap the benefits of his economic and political independence, another view was winning an increasing number of adherents. Under this view economic and political institutions have become increasingly om-nipotent; the individual is increasingly dependent on the system rather than the system being dependent on him. Increasing numbers of individuals view themselves as cogs in the massive, impersonal, technological machine, the controls for which are beyond their grasp. Consequently, it is argued, a higher value must be placed on personal fulfillment in the noneconomic, nonpolitical sphere. A new emphasis must be placed on personal identity and the indi-vidualised, deinstitutionalised pursuit of happiness. Concurrently, as economic productivity demands less of each individual's time and energy, and the workweek continues to shorten, a leisure ethic is emerging. From the perspective of productivity, the argument goes, society has less and less economic interest in what the indi-vidual does with his leisure time.
During the mid-sixties this ideological development was mani-fested in laws and judicial decisions upholding the individual's right to differ—intellectually, spiritually, socially, and sensually. Con-currently, a renascent emphasis on individual privacy appeared. As an incredibly sophisticated technology continually expanded society's control over the individual, he began to insist that the wall around his private life be fortified. The courts responded, proscribing official snooping and invalidating laws interfering with familial decision-making—abortion, contraception, miscegenation—and with private sexual conduct.
A related trend, well underway during the sixties, was de-emphasis of the criminal law as a means of social control. Increasing numbers of legal scholars and social scientists were beginning to indict the process of "overcriminalisation" under which the sphere of criminal conduct had been too broadly drawn. Of particular interest are offenses committed in private, by consenting individuals, such as drug offenses. The view that the criminal law was not the only, or even the best, way for society to express its disapproval of certain behavior was certainly a notion foreign to early twentieth-century policy makers.
A new class of users, revived scientific interest and debate, lively public interest, and fundamental ideological crosscurrents all com-bined to undermine the marihuana consensus in the mid-sixtles. This is not to say, however, that the law was no longer defensible or defended—only that conflict replaced consensus. For the first time in its fifty-year history, marihuana prohibition encountered an operating public opinion process.
A public policy so deeply rooted as marihuana prohibition does not wither away in the heat of debate, especially when it is em-bodied in criminal law and is thus presumed to circumscribe socially harmful and immoral activity. In this case the immediate tendency was to retrench and lash out at marihuana use. The uneasiness with which the dominant social order viewed the political and racial disruption of the mid-sixties contributed to this reaction. Violent demonstrations and urban riots threatened to tear the society apart physically, while an emerging "hippie" counterculture threatened to do so spiritually by overtly rejecting the prevailing value system and by "dropping out" of society altogether.
Since it was associated with misguided young, marihuana easily became a symbol of these wider social conflicts. A new stereotype of the marihuana user was substituted for the old. From the establishment's side, defense of marihuana prohibition and enforce-ment of the law was one way to assert the vitality and superiority of the dominant system and thereby extirpate the "permissivists" and "revolutionaries" who aimed to topple that system. Not sur-prisingly, the marihuana laws were often used selectively as a vehicle for removing radical irritants from the body politic and lasy hippies from the streets.
But the symbolism of the marihuana prohibition was Janus-faced. As .we have suggested, marihuana-smoking was an attractive way for the alienated counterculture to taunt the establishment and flout its laws. For the New Left, the drug's illegal status—which put large numbers of young people on the wrong side of the crimi-nal law—was a useful recruiting agent. Some radical leaders went so far as to oppose reduction in penalties for marihuana possession because they felt severe penalties aided their recruiting efforts by making marihuana users outraged against the society that over-reacted so strongly to a nonexistent danger. Perhaps the best statement to this effect was made by Jerry Rubin, one of the Chicago Seven, in a speech in Charlottesville, Virginia, on 6 May 1970, when he said: "Smoking pot makes you a criminal and a revolutionary—as soon as you take your first puff, you are an enemy of society."3
The official retrenchment characterising the 1965-68 period was led by the law enforcement community. Official propaganda shifted its emphasis away from concerns engendered by the old user popu-lation to those associated with the new. The FBN continued to propagate the crime thesis—complete with the kind of anecdotal support used in the old days4—but most official spokesmen charac-terised the problem in terms of public health rather than public safety. The emerging view regarded the marihuana user as a troubled, emotionally unstable individual. Psychological depend-ence, amotivation, alienation, and an inevitable tendency to use other drugs became the cornerstone of official doctrine.
Within the medical community, increasing numbers of physicians and public health experts were becoming uncomfortable with the official line. But once marihuana became politicised, authoritative medical spokesmen were aware that their statements would be wielded in the rhetorical battle; they therefore employed extreme caution, emphasising what might be true as well as what was. For example, the World Health Organisation (WHO) Expert Com-mission on Addiction Producing Drugs, which abandoned the terms "addiction" and "habituation" in favor of "drug dependence," reviewed cannabis' effects in 1965. After noting that cannabis use did not induce physical dependence and that chronic use could result in psychic dependence, the commission carefully identified the locus of concern:
For the individual, harm resulting from abuse of cannabis may include inertia, lethargy, self-neglect, feeling of increased capa-bility, with corresponding failure, and precipitation of psychotic episodes. Abuse of cannabis facilitates the association with social groups and subcultures involved with more dangerous drugs, such as opiates or barbiturates. Transition to the use of such drugs would be a consequence of this association rather than an inherent effect of cannabis. The harm to society derived from abuse of cannabis rests in economic consequences of the im-pairment of the individual's social functions and his enhanced proneness to asocial and antisocial behavior.5
As in this excerpt medical experts generally distinguish between experimental and chronic use, between use and "abuse." For ex-ample, the AMA Council on Mental Health and Committee on Alcoholism and Drug Dependence emphasised that American mari-huana use was generally experimental or intermittent use of weak cannabis preparations, and that the medical hasard involved in this situation is low compared to that associated with chronic heavy use.6 Yet, this distinction was generally omitted in dissemination to the public by FBN spokesmen who continually cited both the WHO and AMA reports in support of more drastic propositions. Well into 1968 the FBN held firm against the "permissivist" onslaught, keeping in touch with Dr. Munch (who continued to affirm the relationship between marihuana and crime), insisting that marihuana was a "highly dangerous substance with inherent physical dangers" and maintaining that marihuana users should continue to be felons.7
In any event, a common theme within both the medical and law enforcement communities was that marihuana-smoking was a chemical cop-out, suggestive, at least, of underlying psychological instability. For example, one medical expert noted that in the West, marihuana seems to "possess a particular attraction for certain psychologically and socially maladjusted persons who have diffi-culty conforming to usual social norms."8
Dr. Robert Baird, director of the Haven Clinic in New York City's Harlem, observed in 1969 on the basis of his experience with heroin addiction: "Anyone who smokes marihuana, whether it be a doctor, lawyer, nun, priest, who has to use grass already has a mental problem. They are taking it to escape reality, to get high, to relax. I do not care what euphemism you want to employ, they are Mentally ill."9
Officialdom had very little faith in the nation's young. In their view the entire generation was unstable. Henry Giordano, Anslinger's successor as commissioner of Narcotics, hated "to think what the problem might have been if there had been no marihuana controls. In today's ever-growing hedonistic society, it is obvious the results would have been disastrous."19 On another occasion, Commissioner Giordano postulated that legalisation of marihuana would mean the decline of the American system. "I can just imagine," he opined, "all of our youth spending the rest of their days high on marihuana, and I do not know what our society would come to if that were the case."11 Although Giordano may have been a little more apprehensive than his official colleagues, it is clear that the marihuana retrenchment was motivated in large part by gener-ational conflict.
In response to the contention that young people are capable of rational choices, the bureau's chief counsel had this to say:
Even if we were to accept the snobbish proposition that the children of our colleges today possess a superior sense of moral intelligence and are better able to deal sensibly with drugs, and even if we were to conclude that marihuana affects only the weak and the vulnerable, since when has our society stopped being concerned about a minority? The very purpose of many of our health laws is the protection of minorities. I am not im-pressed that a law student with a high I.Q. does not obtain a reaction from taking two or three puffs on a marihuana cigarette. I am concerned over the consequences of making the drug readily available in a society containing millions of persons predisposed to impulsive and aggressive behavior.12
Meanwhile, in the laboratories and on the campuses medical researchers were gradually permitted to seek answers to the basic scientific questions. This effort was methodologically facilitated in 1966 when A9THC, the active principle in cannabis, was synthe-sised, and then in 1967 when its pharmacological effects were demonstrated.13 Young researchers like Andrew Weil of Harvard were anxious to perform clinical human studies, and the National Institute of Mental Health was inundated with requests to approve and fund marihuana research. Apart from pharmacological research, social scientists unleashed an entire arsenal of questionnaires on a new social entity: the "marihuana user." Any new research had an interested audience and, depending on its policy implications, im-mediate critics.
Having defaulted for forty years, the scientific community no longer had the luxury of time and precision. The public wanted answers, and official spokesmen wanted the right ones. The FBN chief counsel made this quite clear in 1968:
The real damage being done in this crisis of confidence is that some scholarly men are more willing to attack the marihuana controls than to justify them: that these persons are more con-cerned with deriding the public officials who are charged with enforcing the laws than in helping them prevent drug abuse; and that they are more interested in rationalising the use of mari-huana than in presenting reasons for controlling it.14
There was thus an inherent conflict in the interests of researchers and the interests of the government. This collision was most intense during 1967-68 when the FBN and NIMH struggled to develop procedures for selecting the "right" research applications, thereby demonstrating the government's interest in seeking the truth while minimising the risk of embarrassing results. Tod Mikuriya, who was in charge of NIMH's marihuana research in 1967, has described the atmosphere:
None of the DHEW employees wanted to offend any of the Bureau of Narcotics police. One also had to worry about ante-diluvian congressional types that had it in their power to smite us mightily where it hurt—right in our appropriation. The result was sectional review committees, which are ostensibly selected for their professional positions and pedigrees, but are really picked for their low risk liability for offending others. Under-standably, the research approved and funded by their recom-mendation could not help but reflect this ethic of inoffensiveness. For fiscal years 1968 and 1969, NIHM grantees in the area of marijuana research include nine animal studies, twenty-eight social voyeuristic designs, ten chemical experiments, four pharmacological studies and only two clinical human studies.15
Law enforcement officials were not stemming the tide alone. Legislators would not budge, and the courts had no trouble "pre-senting reasons for controlling" marihuana when the prohibition was challenged. In fact, the retrenchment period is best exemplified by a twelve-day evidentiary hearing held before a Massachusetts Superior Court judge on the question of whether or not marihuana was rationally classified as a narcotic. In defense of two Phila-delphia youngsters charged with possession, conspiracy, and possession with intent to sell, Attorney Joseph S. Oteri challenged the constitutionality of the Massachusetts law, parading numerous scientific witnesses before the bench. With the close cooperation of the FBN,16 the prosecution solicited a similar array of expert witnesses in support of the law. The challenge failed; in the end, the presence of Science on the witness stand made absolutely no difference.
The key legal factor in a determination of marihuana's consti-tutional status is who has the burden of proof—the legislature or the user. In most situations the courts presume that the legislature has acted rationally, and that it had factual reasons for its actions. In this country's constitutional system, such a presumption of rationality is essential; it is the mortar in the wall separating the judicial from the legislative functions. Without it, the judiciary would be reviewing everything the legislature does and the courts would become nothing more than superlegislatures immune from the popular will. But the legislature is not always entitled to this presumption. In situations where legislative action on its face adversely affects the fundamental constitutional rights of the indi-vidual—such as freedom of speech, freedom of religion, or the right to vote—the legislation is presumed to be unconstitutional and the burden is on the state to show a compelling reason why these rights must be abridged or overridden. In an institutional sense the judici-ary is the guardian of individual liberties and scrutinises any alleged interference with care.
If marihuana-smoking is not thought to involve a fundamental right, then the legislation prohibiting its use is presumed to be rational. The burden rests upon the individual to disprove every possible hypothesis that marihuana is harmful. But this is impossi-ble, all drugs being harmful in one way or another and many questions about marihuana remaining unanswered. If, on the other hand, marihuana-smoking is perceived to involve a fundamental right, the legislature must show a compelling reason for suppressing its use. But this is probably impossible as well, because cause-effect relationships are difficult to establish, the effects of the drug are variable, and its social impact is speculative. Once the question regarding allocation of the burden of proof is resolved, therefore, the role of science is simply to provide evidence, not to dictate the answer.
Both sides in the Massachusetts case rightly considered their case a major battleground for the new marihuana controversy. A Colorado trial judge had taken evidence on the effects of marihuana in 1965 and had declared the law unconstitutional. He was reversed on appeal." After the twelve-day parade of witnesses, Judge Tauro ruled against the defendants, to the FBN's glee.18 Since the judge did not think marihuana-smoking involved any fundamental rights, he presumed the legislation to be rational. He found abundant data to corroborate the legislative determination that marihuana was dangerous and deserving of suppression. His reasoning, however, drawn as it was from 1967 scientific opinion, mirrors the prevailing official dogma. His central finding was: "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."19
Of major concern to Judge Tauro was the alleged propensity of marihuana users "to neglect their health and that of others in their care and to submit to a life of indolence." Use of the drug, he noted, "allows them to avoid resolution of their underlying problems rather than to confront them realistically." The new sociological support for the official retrenchment in the mid-sixties was that the nation's youthful marihuana users were sick and that use of the drug probably would make them sicker.
As in Massachusetts, where Judge Tauro's decision was affirmed by the Massachusetts Supreme Court, consitutional challenges were easily rebuffed by the courts of other states.2° Because any com-ment departing from the official line would have been suicide for an elected officeholder, marihuana reform won no friends in the political arena either.
Defense of the status quo rested on two policy-making propo-sitions. Having become suddenly aware of the imperfection of much of the data on the effects of the drug, FBN and AMA spokesmen began, in 1968, to emphasise what we did not know: no change should be made in public policy toward a drug whose long-term effects were unknown.
No longer in a position to oppose research as they had done for thirty years, both the bureau and the AMA employed a tactic of selective dissemination in support of the status quo. The of-ficial experts to whom the public turned for guidance applauded, published, and circulated research studies that tended to affirm the drug's potential for harm and either ignored or challenged any studies that minimised its harmfulness.
The leaders of the law enforcement and medical communities were playing a waiting game; they gave the distinct impression that they thought the problem would eventually evaporate. All it would take was patient dissemination of information that the drug was not harmless, as so many of its most outspoken advocates con-tended. For example, Commissioner Giordano noted in 1967, "we may soon hope to have the full dangers of marihuana revealed to the public."21
The official waiting game also rested on the policy-making proposition that the government did not have any burden since the law was already on the books. The notion was continually ex-pressed that no change should be made unless marihuana was proven harmless.
This position echoed that being taken in the courts. In its judicial context, of course, this approach manifests a deference to the political process: the judiciary defers to legislative judgment be-cause, under the American system of government, it is the role of popularly elected officials to sift the evidence and assign proper weight to the scientific and normative elements of the marihuana controversy. Instead, however, the opinion makers in the political process were refusing to confront the issue head-on; they were using a judicial presumption as a rhetorical device for refusing to reassess the status quo.
If all psychoactive drugs used for nonmedical purposes were held to the "illegal unless proven harmless" standard, use of them all would be illegal. All drugs can be used to excess and no psycho-active substance is harmless. The point comes into clearer focus if we ask what the public policy response would have been if mari-huana, a previously unknown drug, suddenly appeared on the scene in 1965 at the level it then achieved and among the populations it then attracted. To defend any action to restrict it, the government would be called upon to justify its actions in the same way it had felt obliged to do in 1937. But since use of the drug had already been declared illegal in 1937, the law carried weight of its own, and officials felt little affirmative obligation to justify it.
Naturally, the rhetorical nature of this argument did not escape the challengers, who immediately countered with the alcohol com-parison. Although harmful in at least every respect that marihuana might be, alcohol use was not criminal; in fact, its use was per-mitted and in some ways encouraged by the government. How then, the challengers contended, could the government justify criminal penalties for marihuana use?
As late as April 1968 Giordano was responding officially to this argument in a manner which could have been written thirty years earlier: "The purpose of the present drug laws is to prevent the incorporation of additional debilitating vices within our culture. The fact that other dangerous drugs, alcohol and tobacco, are not prohibited is irrelevant. This attitude may offend logic, but it results in the conservation of human values, and logic may be offended in such a cause."22
Any breach in the wall of official retrenchment during this period was fraught with political risk. For example, some officials in the Department of Health, Education, and Welfare began to question the official position in the fall of 1967. Advisory panels from the Food and Drug Administration and the National Institute of Mental Health were directed to make recommendations on the subject to the secretary of HEW, John Gardner. During this fact-finding process, Dr. James Goddard, the head of FDA, apparently became convinced of the need for legal action. He circulated his views unabashedly within the department, and even the FBN was aware of his position. The deputy commissioner of the FBN re-corded in October that Dr. Goddard felt that "there should be no penalty for possession of marihuana, only for sale or distribution." He also felt "that the use of alcohol is a far more serious problem than is marihuana" and that "we might in ten years see marihuana legalised."23 Needless to say, this view anguished Goddard's FBN counterparts.
In October Dr. Goddard reportedly told student gatherings at the University of Minnesota in response to the inevitable com-parison: "Whether marihuana is a more dangerous drug than alcohol is debatable. I don't happen to think it is."24 After this statement was widely publicised, cries for the doctor's resignation were im-mediately heard on Capitol Hill, and the Wall Street Journal noted the "political peril" attending these observations.25 To explain his heresy Dr. Goddard was summoned to congressional committees three times in one week.
Whether or not Dr. Goddard was misquoted, as he has alleged, the reported remark undoubtedly reflected his views. In his "clari-fications" of his previous statement, he noted that both alcohol use and marihuana use were serious problems, and that both were dangerous; alcohol for its damage to the mind and body, and mari-huana for its legal consequences and possible long-term physical dangers. Nonetheless, he continued to advocate a relaxation of penalties for marihuana use, stating in an interview with New Republic: "I'm interested as a physician in changing the penalty for possession. I don't think we ought to be making felons out of our college students. This is a drug in widespread use today., 9 26
Dr. Goddard was an official maverick. The policy-making com-munity did not accept this view for several years. It certainly was unwilling to consider his preferred scheme, which was the removal of any penalty from possession for personal use. In the confidential memorandum prepared for Secretary Gardner, leaked to the Wall Street Journal, Goddard recommended that marihuana be reclassi-fied under federal law, being brought within the Drug Abuse Control Amendments (DACA) of 1965.27 Under DACA the FDA's Bureau of Drug Abuse Control had authority to control illicit traffic in the "dangerous" drugs (barbiturates, amphetamines, and hallucinogens, including LSD). Penalties under DACA were con-siderably more lenient than those under the Narcotic Control Act of 1956, which included marihuana. In particular, there was no penalty for possession of dangerous drugs for personal use. Goddard thought that marihuana should be classified as a "mild halluci-nogen," under DACA, and that jurisdiction over it should thereby be transferred from FBN to FDA.
Although this proposal never received an official HEW impri-matur, it mirrored both a jurisdictional squabble and a substantive conflict. That conflict was clearly manifested in Commissioner Giordano's testimony on 15 November before the House Govern-ment Operations Subcommittee: "If there is no criminal sanction against possession of marihuana, many people will regard this as tacit approval of its use."28
Without stern penalties, he declared, marihuana use would "go through the roof." To Dr. Goddard's argument that LSD users were not criminalised, Giordano asserted that Congress should remedy that inequity by imposing penalties on possession of LSD, not by relaxing penalties for possession of marihuana.
Within a few months Congress had done just that.29 Dr. Goddard's position that marihuana penalties were too harsh, which would become official orthodoxy a year later, had been rebuffed and he had resigned from government service. Retrenchment continued.
Another example of the fate of official dissent occurred on the state level. In 1966 the California legislature launched a major effort to reform its criminal code. Following tradition, the legis-lature relied on the legal academic community for the basic drafting, appointing six reporters to assist the Joint Legislative Committee to Revise the Penal Code. One of these reporters was John Kaplan, professor of law at Stanford Law School and a former assistant U.S. Attorney. As reporter he devoted much of his energy to the drug laws and the marihuana laws in particular. After more than two years of study and soul-searching, the reporters unanimously circulated a preliminary draft on marihuana in early 1969, recom-mending the withdrawal of the criminal penalty from possession for personal use. Shortly thereafter the Joint Legislative Com-mittee fired the six reporters and replaced them with a prosecutor from the attorney general's office. After his dismissal, Professor Kaplan gathered the available information and published it, appeal-ing in his word, to a "tribunal of higher resort."30
Respectability and Retreat
While the establishment symbolised its concern about the young generation by defending the marihuana laws, use of the drug none-theless continued to spread. As more novice marihuana users reported no ill effects from its use, more students tried it, and in turn those who used it and enjoyed the drug began to "turn on" those who had not. By 1970 some campuses reported that over 70 percent of the student body were users.31 Most observers and surveys estimated that about 50 percent of the nation's college population had tried marihuana." Meanwhile, use of the drug was spreading beyond students to the young professional classes in the cities" and later to blue-collar youths. Marihuana became popular with ,many soldiers because the drug was readily available and widely used in Vietnam. On their return they introduced the practice to still wider segments of the population.
During the last few years of the sixties, then, marihuana use became less identified with any particular class or age. Dipping further into the teenage population and touching increasing num-bers of the twenty-five to thirty-five-year-old group, experimental and recreational use of the drug touched all classes of society. By 1970 the Wall Street Journal found substantial marihuana use among young professionals and considerable evidence of marihuana use on the job in the New York City area.
As this trend continued, it became a popular sport to try to estimate the total incidence of use among Americans. Dr. Stanley F. Yolles, former director of the National Institute of Mental Health, testifying before a Senate subcommittee in 1969, said: "A conservative estimate of persons in the United States, both juveniles and adults, who have used marihuana at least once, is about eight million. And may be as high as twelve million people."34
Other estimates in the late 1960s ran as high as twenty-five million users.36 Although all the polls suffered from methodological flaws, it was generally accepted that use continued to increase into the seventies.
Meanwhile, of course, marihuana-smoking had become the most widely committed crime in America, with the possible exception of speeding on the highways. Reporting the marihuana arrests of Robert Kennedy, Jr., and R. Sargent Shriver, Jr., Walter Cronkite noted: "This case is not unusual; more and more parents across the nation find themselves going to court with their children on drug charges. It's becoming an incident of modern living."36 It has been estimated that approximately 200,000 persons were arrested for possession of marihuana in 1970.37
Marihuana-smoking was no longer associated entirely with radical politics and the hippie lifestyle. In fact, both these social phe-nomena had probably declined after 1968, and the public anxiety that had characterised the retrenchment period had also receded. Instead, public attention had been turned increasingly to the legal consequences of marihuana use. In September 1970, for example, Newsweek headlined its cover story with the question "Marihuana: Time to Change the Law?"38 Despite the retrenchment rhetoric, uncertainty—about the effects of the drug, and particularly about the propriety of prosecuting and incarcerating its users—now domi-nated public opinion.39 Information regarding the harmfulness of marihuana was now less important than information regarding the harmfulness—or costs—of the marihuana laws. The public began to hear a lot about misallocation of enforcement resources, arbitrary prosecution, questionable police practices, and disrespect for law. Instances of political pot prosecutions and convictions were docu-mented in the press. One of the most notorious was the thirty-year sentence meted out by a Texas court to black militant Lee Otis Johnson for giving one joint to an undercover agent. At the time of his conviction in 1968, Johnson headed the Houston chapter of the Student Nonviolent Coordinating Committee (SNCC). His conviction was subsequently reversed in 1972 by a federal district court.46
Opponents of the marihuana laws also argued that it was the marihuana laws, not marihuana itself, which could lead to "harder stuff" by compelling the marihuana user to secure his drug in an illicit marketplace. Most potent, however, was the challengers' contention that no possible harmful drug effect could justify the social cost of criminalising the otherwise law-abiding young. Anthropologist Margaret Mead contended that marihuana prohi-bition was "damaging our country, our laws and the relations between young and old."41 An otherwise cautious AMA expert committee statement in 1968 pleaded for differential legal ap-proaches for "the occasional user, the frequent user, the chronic user, the person sharing his drug with another, and the dealer who sells for profit." Of "particular concern," the AMA experts empha-sised, "is the youthful experimenter who, by incurring a criminal record through a single thoughtless act, places his future career in jeopardy. The lives of many young people are being needlessly damaged."42
The retreat had begun. The law enforcement community began to compromise the law, and the legislatures began to change it. The medical community gradually became willing to state the facts, abandoning the uneasy defensiveness of the retrenchment period. The underlying policy issues still remained unresolved, but the waiting period was over.
Local police and prosecutors no longer enforced the letter of the possession laws. By 1969 it was common knowledge in Washing-ton, D.C., and New York City that possession of marihuana would draw attention only if it was flaunted.43 Harsh criminal treatment of marihuana possession was no longer supported by a social con-sensus, and the legal system gradually adjusted. Informal diversions and increasing numbers of prosecutorial dismissals weeded out many—perhaps half—young users from the criminal justice system."
While law enforcement authorities were molding their own procedures to the realities of widespread marihuana use, particu-larly in large cities, the courts had begun by 1969 to take a new view of the propriety of harsh sentences in those marihuana cases which reached the courts. Some judges publicly questioned the prudence of the existing law and pleaded for legislative relief.45 By 1971 only 13 percent of the judges responding in an opinion survey indicated that they would incarcerate an adult for possession of marihuana; only 4 percent said they would jail a minor.46 Naturally, heavy sentences in marihuana cases earned attention from the press, and the New Jersey Supreme Court converted the common practice to a rule, forbidding the lower courts in that state from incarcerating anyone for first-offense possession of marihuana:17
By 1969 many of society's major institutions of social control had softened their stances on marihuana use. Educators, parents, and physicians deserted the law; and many judges and prosecutors adjusted to the new realities. Finally, the legislators began to respond. By the beginning of 1970 twenty-one states had reduced the penalties for possession of marihuana. This trend continued during 1970, as eleven more states acted (see map). There was something very hesitant about all of this, however, as many states merely restored to the judiciary the sentencing flexibility that they had taken away in the fifties.
A typical example of the tokenism of the penalty-reduction phase of marihuana's legal history is the Virginia experience. On 24 February 1969 a twenty-year-old ex-University of Virginia student, Frank P. LaVarre, was arrested in a Danville, Virginia, bus station while en route to Atlanta from Charlottesville, Virginia.18 In his possession were four plastic containers of marihuana, valued at $2,500, 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 marihuana, LaVarre was sentenced on 31 July 1969 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 citisen out of yourself."19 Presumably this meant that under Vir-ginia law LaVarre, "who had never so much as stolen a hubcap,"5° would be eligible for parole in five years.
Although the trial was reported on the front page of the Rich-mond Times-Dispatch, the conscience of the Virginia citisenry was not awakened until several months later when an article in Life magasine 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 Virginia51 and fostered general agreement that marihuana penalties were far too harsh.52 This was clearly the belief of the governor, who pardoned LaVarre on 2 January 1970, placing him on five years' probation. This act was noted nationally" and applauded locally." The existing law was criticised and reform was urged.55
The Virginia General Assembly responded and a subcommittee of the House General Laws Committee held hearings.56 At these hearings the legislators as well as the experts generally agreed that drug laws should be aimed primarily at dealers and should allow more leeway "for youngsters caught following a current fad."57 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.58 Many of the legislators believed that lighter penalties would en-courage more uniform enforcement of the law.
In response the general assembly enacted a comprehensive drug control measure to replace the old Uniform Narcotic Drug Act; this new law was signed by the governor on 5 April 1970.58 The penalty for first-offense possession of marihuana was reduced to a misdemeanor punishable by a fine of not more than $1,000 or confinement in jail not to exceed twelve months, or both. However, a second- or subsequent-possession offense was to be rewarded 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 morethan $10,000.°
The legislature thus combined light sentences for first-offense possession with extremely tough ones for second and subsequent violations. One legislator summed up the reason for this distinction: "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 a second offense] ."61
The penalty-reduction phase was well underway at the state level by 1971, although the Virginia experience illustrates that policy makers were not yet questioning the fundamental assumptions underlying the existing policy. They were simply tinkering with that policy in order to ameliorate its excesses.
Meanwhile, a similar development was taking place at the federal level. Of substantial importance in this regard was a reorganisation of the federal narcotics bureaucracy. In 1968 the FBN was re-moved from the Treasury Department and the Bureau of Drug Abuse Control was removed from HEW to form jointly a new Bureau of Narcotics and Dangerous Drugs (BNDD) in the Justice Department. The influx of HEW personnel not tied to past FBN policies moderated the tone of the federal response. Within months BNDD was publicly espousing an enforcement policy aimed only at major trafficking, not at possession.62
As at the state level, the agitation was building in the Congress for reduction of federal marihuana penalties. This pressure coin-cided with a broader movement to restructure federal drug laws in general. The need to overhaul the federal response had become increasingly apparent as the sixties wore on. In the first place, the diverse governmental interests in drug control, having evolved in a piecemeal fashion over a half-century, had never been rationalised. A patchwork of regulatory, revenue, and criminal measures had strewn jurisdiction among numerous federal agencies. In addition, the Supreme Court had, in 1969, invalidated some of the contorted presumptions and other awkward devices through which Congress had originally extended federal jurisdiction over the drug area.65
It had been apparent for some twenty years that congressional power to regulate interstate and foreign commerce could be eln-ployed to prohibit or regulate possession and distribution of drugs, and the Drug Abuse Control Act of 1965 had been premised on the commerce clause. Consequently, full abandonment of the revenue charade was long overdue. Finally, the need for modern-ization of the drug laws merged with an even broader attempt to rationalise the entire federal penal code. The National Commission on Reform of the Federal Criminal Laws had been established by Congress in 1966 to "review . . . the statutory and case law of the United States which constitutes the Federal system of criminal justice . . . [and] to make recommendations for revision and re-codification. . ."" By 1969 the commission had generated a "working paper" which identified the governmental interests in drug control and drafted a statutory scheme integrating all controlled drugs.65
A second aspect of federal law which had been subject to increasing attack during the sixties was the penalty structure, par-ticularly the draconian mandatory minimum sentences levied by the Boggs and Narcotic Control acts. Within six years three presi-dential commissions had pleaded for sentencing discretion: the President's Advisory Commission on Narcotic and Drug Abuse of 1963 (Prettyman Commission), the President's Commission on Law Enforcement and the Administration of Justice of 1967 (Katzenbach Commission), and the National Commission on the Causes and Prevention of Violence of 1969 (Eisenhower Com-mission). There can be little doubt that these recommendations were finally adopted in 1970 in part because of the political im-perative then attaching to reduction of marihuana penalties.
Beginning in the spring of 1969 and continuing for the ensuing eighteen months, several committees of the Congress conducted a multitude of hearings on drug control. The final result was passage of the Comprehensive Drug Abuse Prevention and Control Act in October 1970." (The drug control part of this measure was called the Controlled Substances Act.) In addition to integrating all con-trolled substances in a uniform regulatory framework, abandoning mandatory minimum sentences and reducing "simple" possession of all drugs to a misdemeanor, this act established a National Commission on Marihuana and Drug Abuse to conduct a yearlong formal, authoritative study of marihuana.
The Nixon Administration had introduced its initial version of the "Controlled Dangerous Substances Act" on 15 July 1969.67 In most respects the proposed bill retained the penalty structure of the old laws, and even increased penalties for hallucinogen violations, which had been relatively light under DACA. However, the attorney general intimated some flexibility in the first round of hearings, noting that the penalty provisions did not reflect the administration's "definitive opinion."68 When it appeared that the Congress no longer had the stomach for harsh penalties for users, the administration revised its bill, proposing misdemeanor penalties for simple possession and abandoning mandatory minimums for all offenders except "professional criminals."69 This brought the administration's bill in line with a similar bill introduced by Connecticut's Senator Dodd, whose subcommittee on juvenile delinquency was conducting the hearings for the Committee on the Judiciary. Comparison of the Dodd bill with early drafts of the administration bill strongly suggests that Senator Dodd had actually introduced an earlier version of the administration's measure.
The Senate passed the Controlled Dangerous Substances Act in February 1970.7° The House, after a jurisdictional squabble between the Ways and Means and Interstate and Foreign Commerce committees—a dispute reflecting the chaotic structure of the old laws—passed what had now become the Comprehensive Drug Abuse Prevention and Control Act of 1970. With regard to penal-ties there was some variation between the House and Senate bills. For example, S. 3246, in recognition of the social realities of marihuana use and distribution, treated casual transfers as the functional equivalent of possession; under the House version, any distribution was a felony. Also, the House version assessed higher penalties for importation (smuggling) than for trafficking, while the Senate measure drew no similar distinction.
By far the most important variation between the two measures, however, related to the respective roles of the departments of Justice and Health, Education, and Welfare in the scheduling, classification, and reclassification of controlled substances. Since the scheduling decisions have implications for penal law as well as regulatory control, this issue symbolized the continuing conflict between scientific and law enforcement perspectives on drug con-trol.
Under the new statutory scheme employed in both bills, all previously controlled substances were classified in a series of schedules according to their abuse potential, known effect, harm-fulness, and level of accepted medical use. (As enacted, the act includes five schedules.) For example, substances in Schedule I, having high potential for abuse, no accepted medical use, and a lack of accepted safety for use under medical supervision, are subject to the most stringent regulatory controls. Conversely, Schedule IV substances, having a low potential for abuse relative to substances in Schedule III, currently accepted medical use, and limited dependence liability, are subject to the least stringent con-trols. With some exceptions, criminal penalties for possession or distribution outside the regulatory framework also follow the classification hierarchy.
The variation between the House and Senate measures related to the procedure for classifying future drugs and rescheduling drugs previously controlled. Under the Senate measure this responsibility rested with the attorney general, who was required only to "request the advice" of the secretary of HEW and of a scientific advisory committee in making his decision. He was not required to follow this advice despite the fact that the various criteria require prima-rily scientific and medical judgments. The Senate rejected an amendment by Senator Harold Hughes of Iowa that would have made the recommendations of the "advisors" binding on the attorney genera1.71 Under the House version, however, the secre-tary's recommendation not to schedule a new drug was binding on the attorney general and his recommendation as to rescheduling was binding as to medical and scientific matters.
The importance of this issue, which was ultimately resolved in conference in favor of the House version, extended well beyond marihuana. However, the marihuana issue may have played a pivotal role in the final result. Congressional interest in reducing penalties responded directly to political and social imperatives; this development was neither tied to nor premised upon a recon-sideration of the scientific and ideological issues. But neither the Congress nor the administration could ignore these questions; they could only postpone them.
Uncertainty and conflict still characterised discussion among experts about the effects of marihuana. Accordingly, the adminis-tration chose to perpetuate the classification of marihuana with drugs that were recognised to be more dangerous; marihuana ap-peared in Schedule I with heroin and LSD. Congress meekly deferred to this judgment, but all of the participants seem to have anticipated a change after "the facts were in." The importance of who was ultimately to make the decision was reflected clearly by Senator Dodd: "After the last set of hearings the testimony on it was so conflicting . . . that it was impossible for me to really make up my own mind about it. I don't know how anyone could legis-late in such an atmosphere. The law enforcement people pretty generally took the view that it is dangerous, addictive, very harmful and ought to be dealt with very severely; while the medical, scien-tific and educational community pretty generally took the view that this was not quite so."72
The committee report on the House bill noted:
The Committee requested recommendations from [HEW] con-cerning the appropriate location of marihuana in the schedules of the bill, and by letter of August 14, 1970, the Assistant Secretary for Health and Scientific Affairs (Roger O. Egeberg) recommended "that marihuana be retained within Schedule I at least until the completion of certain studies now underway."
In addition, ... the bill provides for establishment of a Presidential Commission on Marihuana and Drug Abuse. The recommendations of the Commission will be of aid in determin-ing the appropriate disposition of the question in the future.73
Since this possible rescheduling could be accomplished by ad-ministrative action, marihuana's legal status depended heavily on the review mechanism built into the Controlled Substances Act. The key question, then, was "who decides?" In this respect the resolution of the House and Senate conflict over scheduling responsibility would determine the administrative decision maker. But an interim fact-finding process was contemplated by all concerned, including the attorney general.74
1. Traffic in Opium (1960), p. 69.
2. Peop/e v. Mistriel, 110 P. Cal. App. 2d 110, 241 P.2d 1050 (Dist. Ct. App. 1952); People v. Stark, 157 Colo. 59, 67, 400 P.2d 923, 927-28 (1965); Peop/e v. Glaser, 238 Cal. App. 2d, 819, 48 Cal. Rptr. 427 (Dist. Ct. App. 1965), cert. denied, 385 U.S. 880 (1966); People v. Aguiar, 257 Cal. App. 2d 597, 602-03, 65 Cal. Rptr. 171, 174-175 (Dist. Ct. App.), cert. denied, 393 U.S. 970 (1968); Commonwealth v. Leis, nos. 28841-2, 28844-5, 28864-5 (Suffolk Super. Ct. 1968), affirmed, 355 N. Mass. 189, 243 N.E.2d 898 (1969); People v. McKenzie, 458 P.2d 232 (Colo. 1969); Raines v. State, 225 So. 2d 330 (Fla. 1969).
3. Washington Post, 24 Feb. 1970, p. D-1, col 3. See also J. Rubin, Do It! (New York: Simon & Schuster, 1970).
4. See, e.g., George M. Belk, New York district supervisor, to Howard L. Leary, New York commissioner of police, 6 Oct. 1967.
5. Eddy, Halbach, Isbell, and Seevers, "Drug Dependence: Its Significance and Characteristics," Bulletin of the World Health Organization (1965), 728-29.
6. "Marihuana and Society," Journal of the American Medical Association„204 (1968), 91-92.
7. Henry L. Giordano, commissioner of Narcotics, to Dr. James C. Munch, 20 Feb. 1968; Giordano to Karl Heyman, 20 Feb. 1968; Giordano to Ronald J. Turner, 5 Mar. 1968; Giordano to Congressman James C. Corman, 17 Nov. 1967. See Munch, J.C. "Marihuana and Crime," U.1V. Bulletin on Narcotics, 15 (1963), 15-23.
8. Seevers, "Marihuana in Perspective," Michigan Quarterly Review, (1966), 247- 51.
9. U.S., Congress, House, Select Committee on Crime, Marihuana, 91st Cong., 2d sess., 1970, H. Rept. 91-978, pp. 108-09.
10. Quoted in C. Kirk, "The Marihuana Road to Paradise—and Hell," New York
Sunday News, 17 Dec. 1967, p. 97.
11. Giordano Testimony Before a Subcommittee of the House Committee on
Appropriations, quoted in Marihuana, ed. Erich Goode (New York: Atherton Press, 1969), p. 154.
12. Donald Miller, Legislative and Judicial Trends in Marihuana Control, FBN
13. R. Mechoulam et al., "A Total Synthesis of a One-,19 Tetrahydrocannabinol,
the Active Constituent of Hashish," Journal of American Chemical Society (1965); H. Isbell et al., "Effects of Delta-A9 Tetrahydrocannabinol in Man," Psychopharma-cologia (1967), 184-88.
14. Miller, Legislative and Judicial Trends in Marihuana Control.
15. Mikuriya, "Contemporary Aspects of Drug Abuse," paper presented at Con-
ference on Drug Abuse, Mendocino Series, 6-8 Feb. 1970, p. 1.
16. Boston Globe, 20 Dec. 1967, p. 1; George Gaffney, acting commissioner of Narcotics, to Garrett Byrne, Suffolk County district attorney, 9 Oct. 1967.
17. People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965); see also People v. McKenzie, 458 P.2d 232 (Colo. 1969).
18. Commonwealth v. Leis, nos. 28841-2, 28844-5, 28864-5 (Suffolk Super. Ct. 1968), affirmed, 355 N. Mass. 189, 243 N.E. 2d 898 (1969).
19. Suffolk Law Review, 23 (1968), 31.
20. Raines v. State, 225 So. 330 (Fla. 1969); Peop/e v. McKenzie, 458 P.2d 232 (Colo. 1969).
21. Giordano to Karen Conner, 29 Dec. 1967.
22. Giordano to Congressman Bob W. Wilson, 11 Apr. 1968.
23. Memorandum for Files written by George Gaffney, 13 Oct. 1967.
24. Baltimore Sun, 22 Oct. 1967.
25. Wall Street Journal, 20 Nov. 1967, p. 8.
26. New Republic, 28 Oct. 1967, pp. 7, 8.
27. Pub. L. no. 89-74, 79 Stat. 226 (1965).
28. Wall Street Journal, 20 Nov. 1967, p. 8.
29. Pub. L. no. 90-639, 82 Stat. 1361 (1968).
30. John Kaplan, Marijuana: The New Prohibition (New York: World Pub. Co., 1970), pp. ix-xii.
31. Time, 26 Sept. 1969, p. 69; Yale Daily News, 14 Jan. 1970.
32. Marihuana: A Signal of Misunderstanding, The First Report of the National Commission on Marihuana and Drug Abuse, Appendix (Washington, D.C.: GPO, 1972), I, 251.
33. Mallabre, "Drugs on the Job," Wall Street Journal, 4 May 1970, p. 1, col. 6. This article deals not only with drug use by professionals but also details the increasing trend of drug use on the job.
34., U.S., Congress, Senate, Committee on the Judiciary, Subcommittee to Investi-gate Juvenile Delinquency, Hearings on S. 1895, S. 2590, S. 2637, 91st Cong., 1st sess., 1969 (hereafter cited as Senate, Narcotics Legislation Hearings).
35. Ibid., p. 268.
36. "CBS Evening News," 6 Aug. 1970. See also J. Rosevear, Pot: A Handbook of Marihuana (New Hyde Park, N.Y.: University Books, 1967), pp. 117-31; Traffic in Opium (1966), pp. 2, 40.
37. Marihuana: A Signal of Misunderstanding, Appendix II, 612.
38. Newsweek, 7 Sept. 1970, pp. 20-32.
39. Marihuana: A Signal of Misunderstanding, Appendix II, 889-99.
40. "Court Voids 30-yr. Term in Pot Case," Washington Post, 22 Jan. 1972.
41. "Dr. Mead Calls Marijuana Ban More Perilous Than Marihuana," New York Times, 28 Oct. 1971.
42. "Marihuana and Society," JAMA.
43. For retrospective confirmation see Marihuana: A Signal of Misunderstanding, Appendix II, 652.
44. Ibid., pp. 613-94.
45. U.S. v. Kleinzahler, 306 F. Supp. 311 (E.D.N.Y. 1969).
46. Marihuana: A Signal of Misunderstanding, Appendix II, 843.
47. State v. Ward, no. A-9 (NJ., 26 Oct. 1970). The court affirmed the con-viction but modified the sentence. Two justices dissented from the affirmance on the ground that the defendant did not receive a fair trial. They concurred in the sentencing modification on the ground that the sentence was "grossly excessive."
48. The following account is taken from Life, 31 Oct. 1969, pp. 30-31; New York Times, 3 Jan. 1970, p. 14, cols. 1-2; Richmond Times-Dispatch, 31 July 1969, p. 1, col. 6; ibid., 19 Dec. 1969, p. B-1, cols. 1-2; ibid., 3 Jan. 1970, p. 1, cols. 4-6; ibid., 5 Jan. 1970, p. 12, cols. 1-2 (editorial).
49. Life, 31 Oct. 1969, p. 30.
50. Ibid., p. 31.
51. Mention was made of it in the Richmond Times-Dispatch, 19 Dec. 1969, p. B-1, col I; ibid., 3 Jan. 1970, p. 1, col. 1.
52. In December 1969 the Virginia Commission for Children and Youth recom-mended that penalties for the possession, use, and sale of marihuana be sharply reduced and that the substance not be classified with "hard" drugs such as heroin. Richmond Times-Dispatch, 15 Jan. 1970, p. GI, col. 7.
53. New York Times, 3 Jan. 1970, p. 14, cols. 1-2.
54. Richmond Times-Dispatch, 5 Jan 1970, p. 12, col. 1 (editorial entitled "The Pardon").
56. Ibid., 26 Feb. 1970, p. B-4, col. 1.
57. Ibid., col. 3.
58. Ibid., 3 Mar. 1970, p. B-1, col. 5.
59. Virginia, Virginia Code Annotated, sec. 54-524 (Supp. 1970); Virginia, Vir-ginia Acts, ch. 86, (1934), p. 81, formerly Virginia Code Annotated, secs. 54-487 to 54-519.
60. Virginia, Virginia Code Annotated, secs. 54-524.101(c) (Supp. 1970).
61. Richmond Times-Dispatch, 3 Mar. 1970, p. B-4, col. 6. See also ibid., 15 Mar. 1970, p. F-6, col. 1, (editorial).
62. See, e.g., J. Giordano, associate director of the Bureau of Narcotics and Dangerous Drugs, to Congressman Clarence Miller, 28 May 1968.
63. Leary v. United States, 395 U.S. 6 (1969); Turner v. United States, 396 U.S. 398 (1970).
64. Pub. L. no. 89-801, 80 Stat. 1515, sec. 3 (1966).
65. National Commission on Reform of Federal Criminal Laws, "Drug Crimes," (14 Jan. 1969), study draft in the possession of the authors in Charlottesville. Va.
66. Pub. L. no. 91-513, 84 Stat. 1236 (1970).
67. Senate, Narcotics Legislation Hearings, p. 909.
68. Ibid., p. 255.
69. Ibid., p. 663.
70. 116 Congressional Record (1970), p. 797.
71. Ibid., p. 770.
72. Senate, Narcotics Legislation Hearings, p. 250.
73. U.S., Congress, House, Committee on Interstate and Foreign Commerce, 91st Cong., 2d sess. H. Rept. 91-1444, p. 13.
74. Senate, Narcotics Legislation Hearings, p. 251.