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Epilogue PDF Print E-mail
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Books - The Marihuana Conviction
Written by Richard J Bonnie   

HISTORICAL DETACHMENT was by definition impossible in writing this book. We do not doubt that our opinions, molded by the present social context, have colored our interpretations of an earlier one; but we did strive for objectivity and hope we have attained it. In these final few pages, we intend to bring these historical observations to bear on contemporary policy-making, and to discuss their implications for the future.

We noted at the outset that this book would begin and end at the same spot—with American society struggling inconsistently with the value-laden issues raised by psychoactive drug use. Throughout the sixty-year period described in these pages, neither philosophy nor science have been shapers of drug policy; instead, the central influence on government action has been the social context—political, economic, and cultural. Amorphous social f9rces, peculiar to time and place, have shaped both the drug-using behavior of individuals and groups and the wider social response to that behavior. Philosophical and ethical principles may dictate whose needs ought to prevail; but the thus far unpredictable forces of history dictate whose needs ultimately will prevail.

This is the lesson of the marihuana story. There are no villains, no heroes; only depressions, wars, laws, customs, prejudices, symbols, social values, fears, crime statistics, underemployment, cam-pus riots, youthful alienation, and creaking bones in a social system.

And of course there are naturally-occurring, mood-altering substances to which man has always turned to satisfy his many needs. Because of the special capacity of these substances to influence behavior, every society tends to resist the use of a previously unfamiliar one for self-defined purposes. The intensity of the resistance tends to be determined by the attitudes of the dominant social group toward the using group, the prevailing perceptions of the drug-effect, and the evaluations of these effects in terms of the extant normative system.

When marihuana use seeped across the border early in the twentieth century, the only prerequisite to its prohibition was official notice. The effects of the drug were irrelevant: it was used by a voiceless immigrant group associated with antisocial behavior in general and violent crimes in particular; it was enshrouded in legend—from East and West; and it appeared just after a wave of pharmaceutical and alcohol prohibitions had washed over a hap-hazard system of distribution. Given the contemporary social context from 1915 to 1930, marihuana prohibition was a fore-gone conclusion and, indeed, was supported by a latent public consensus.

By the same token, however, if use of marihuana—a previously unknown drug—had suddenly appeared on the American scene in 1970 among the same population and on the same scale it has now achieved, prohibition would not even be considered. The drug is used privately as a social drug, with shared ritual and meaning, among a broad spectrum of the American teenage and young adult populations. For the most part, use of the drug has not been associ-ated with visible antisocial behavior. If marihuana had no past, the issue would be whether some form of government regulation would prove beneficial to the users or to the public coffers. And even then the using population would insist that any restrictive action be tailored narrowly to achieve a specific governmental purpose.

This is not the case, of course. Marihuana use in the 1960s confronted a system of criminal prohibition which carried its own meaning as defined in another time. Decades of classification as a narcotic, the presumptive immorality attaching to felonious con-duct, and the implication of addiction, crime, and insanity had instilled in the public consciousness a fear of marihuana unjustified by the demonstrable effects of its use. But that fear, and its codi-fication by law, is an integral part of the present social context, and it cannot be ignored in either shaping or predicting policy.

The Meaning of Marihuana's Past

History has woven a web around the use of marihuana. In our opinion, public reluctance to modify or eliminate marihuana prohibition in 1973 is based on attitudes molded by two genera-ions of illegality, together with the societal ambivalence toward self-defined drug use which has prevailed for a century. The narcotics consensus supporting twentieth-century "drug" policy was founded on exaggeration. Any use of any so-called "narcotic" drug was thought to propel the pleasure-seeking user toward a drug habit or addiction that in turn would result in crime, slothfulness, and immorality. Because of this widely shared image, the fused concepts of "narcotic" and addiction constituted the organizing principle of drug policy. Formal application of this concept to marihuana was initiated by the "narcotic farm" act of 1929, which included Indian hemp in the list of "habit-forming drugs," and was reaffirmed by the legislation of the 1950s that linked marihuana use to heroin use. (The prospect of therapy is what ultimately gives the concept of habit-formation meaning under the 1929 act; yet few "cannabis addicts" have been identified in the public health hospitals in Lexington, Kentucky, and Fort Worth, Texas, since they opened in the thirties.)

The youthful drug use of the 1960.s, particularly the substantial experimentation with marihuana and hallucinogens like,LSD, demonstrated that social disapproval was not tied to "addiction" alone (and hence was not synonymous with the term "narcotics" either). Although the "narcotics" consensus remained, it no longer supported marihuana prohibition. For this reason, American society was forced to confront the inconsistencies in its dualistic policy patterns—alcohol and "drugs." In our view, fundamental recon-sideration of drug policy is now in order. In particular, a new organizing principle must emerge to supplant the misplaced emphasis on addiction, and policy makers must evaluate the role of individual responsibility in psychoactive drug use. The nation might easily defer such reconsideration by reforming marihuana policy, the policy most in need of change and the drug least likely to make a social difference. By the same token, however, popular reluctance to alter marihuana policy clearly reflects apprehensive-ness that such a move might in itself signify a fundamental reconsideration and imply societal "surrender" in the war against drug abuse.

We see then how marihuana has been trapped by its past; use of the drug has assumed cosmic meanings which have little to do with the ethical questions raised by psychoactive drug use and even less to do with health. One need not reject the Protestant ethic either to embrace or condone marihuana use. The intoxicant property of marihuana cannot honestly be distinguished from that of alcohol in terms of this society's moral and social acceptance of recreational drug use. Individual and public health would probably suffer from use of marihuana (and other drugs as well) no more under any other control system than is true under the present one. In sum, the issue is no longer the properties of marihuana—the ethics or effects of its use. The pivotal question instead is the meaning of marihuana policy.

In the first place, retention of marihuana prohibition, an after-thought of the narcotics consensus, has come to symbolize the nation's battle against "drug abuse," the most recent euphemism for disapproved drug use.("Drug abuse" emerged as the replacement. symbol for "narcotics" because it rallies the public to an undefined cause; who could possibly be for the abuse of drugs?) In an era characterized by increased use of many drugs, "holding the line" on marihuana is an essential element of the "hardline" strategy.

But how is marihuana related to use of other drugs? The recent flurry of official fact-finding has undoubtedly convinced the public that marihuana is not identical to other illicit substances, a matter which has been on the official record at least since the fifties. (Indeed, one important byproduct of the marihuana debate has been to reverse the tendency to exaggerate the detriments of the "illegal drugs" and to minimize those of the "legal" drugs. Alcohol, for example, has been placed in proper perspective, and the reformers have been forced to retract their initial comparisons between marihuana and alcohol.)

Even without direct identification as a "narcotic," marihuana's indirect association through the steppingstone, or escalation, hypothesis was always a salient feature of the narcotics consensus, although this theory was not officially adopted until the 1950s. Particularly during the last decade, voluminous data have been amassed to interpret the meaning of the statistical association between use of marihuana and use of other drugs. Yet the experts generally agree that the relationship is not causal and reflects non-drug factors. Indeed, marihuana's reputation as a first step on the road to addiction (or to the drug culture) is entirely a function of its legal history. Alcohol and tobacco are significantly more heavily associated with marihuana use than marihuana use is with use of any other drug. Yet the legal prohibition itself defines the terms in which the question is asked: which substances are drugs of "abuse" and are therefore relevant to the escalation hypothesis? Society's continuing concern about use of opiates and about a drug-using lifestyle is foisted on marihuana simply because it is generally the first illicit drug to be used (as distinguished from the first drug to be used illicitly—which would include alcohol and tobacco).

In these and other ways, the debate centers on what marihuana use really means. The reformers now link marihuana to alcohol not to compare their effects (if anything, this is risky business in light of the nine million alcoholics and multitude of alcohol-related deaths), but to establish familiarity; it's not that alcohol's good, but that it's American. So it should be with marihuana—nothing will change apart from the details of the drug-using ritual and the nature of being "high." By contrast, the opponents of reform view marihuana use as something fundamentally different: as either part of or contributor to a pattern of events which will modify the essence of American life—for the worse, in their opinion. Some of them seek to prove their point by searching for immediate ill effects in the laboratories and clinics—marihuana leads to heroin or to amotivation or to promiscuity. But the more thoughtful opponents are not really talking about tomorrow, but the' days after tomorrow. They are convinced that marihuana use is a sub-stantial departure from customary conduct and that the drug-using behavior of future generations will be severely disruptive of the social order if effective preventive action is not taken now. For them, marihuana symbolizes fundamental social changes.

The Merits of Reform

We cast our lot with the reformers. In so doing, we suspect we side with the inevitable; but more important, we believe that these laws are indefensible and therefore ought to be changed.

We are convinced that logic, science, and philosophy have had almost nothing to do with the evolution of drug policy. The social structure will ultimately adjust to the realities of drug-using be-havior. America will become comfortable with marihuana, and the laws will vanish in practice if not in form. This process is already underway.' Nonetheless, the marihuana debate has revealed wide-spread dissatisfaction with the contemporary approach and has initiated a search for general principles upon which an orderly, consistent drug control policy can be based. From this perspective, then, we will summarize what we think marihuana policy ought to be.

In general terms, we believe that this nation ultimately should adopt a social policy of official neutrality toward the recreational use of marihuana, but should seek to discourage its heavy or otherwise irresponsible use. As an integral part of this official stance, all of the major institutions of society, including the government, should strive to minimize all forms of social and economic pressure that tend to encourage the use of psychoactive substances, including alcohol as well as marihuana. Similarly, in implementing this social policy, the government should establish a mechanism for controlling the availability of marihuana which does not institutionalize the economic incentives for perpetuating and proselytizing its use.

In this connection, we endorse a regulatory model (or "legaliza-tion"), but we do not endorse the "alcohol model"; indeed the legal channels of marihuana distribution should not resemble those now employed for alcoholic beverages. The drug should be distri-buted through a government controlled or regulated monopoly. Under no circumstances should product competition be permitted. To prevent the government from having a vested interest in wide-spread use, the drug should be taxed primarily as a control device, not as a revenue-raising device. No advertising or other commercial inducements should be permitted. The drug should be available at the retail level only on conditions that emphasize to the user the psychoactive properties of the substance and the risks of its use; in this regard, pharmacies might be useful retail outlets. Appropriate age limitations should be established and enforced against careless distributors, albeit with the understanding that adolescent experimentation is inevitable. Potency controls should be utilized to differentiate among various substances to be available and to in-form the consumer; preparations high in THC should not be made available at the outset but should be marketed, if at all, only to meet demonstrated demand. Such a regulatory scheme should be established with a minimum of fanfare and an abundance of caution.

It has not been our purpose in this book to advocate a regulatory approach to marihuana use; accordingly, we have aimed here only to sketch a public policy which will be suitable over the long term. We do not urge its immediate adoption. If we have become advocates, our cause is reform—a reformed public posture toward what we regard as a matter of minor public consequence. At the moment the fact of reform is more important than its details. We should also emphasize that reduction of penalties can no longer be regarded as reform. As long as personal possession of marihuana is a crime, the law is indefensible; as long as a person can be arrested for use of marihuana—whether he is punishable by a $100 fine or by one day in jail—the narcotics consensus will be exerting deadhand control over marihuana policy.

In concluding that the law ought to be reformed, we do not rely primarily on science—although marihuana use clearly poses less risk to either physical or mental health than use of any othermajor psychoactive substance including alcohol. In our view, the current tendency to devise a continuum of drug control schemes and penalties based on a scale of drug effects is misguided. It ties the law directly to science when the basic questions raised by drug use are answerable in social rather than pharmacological terms.

Nor do we rely on any generally applicable ethical principle relating to drug use—although we do believe that experimental and recreational marihuana use are perfectly consistent with the princi-ple that individuals should not behave in a way that could substantially impair their capacity to realize their human potential.

Nor do we join so many other reformers in relying on the libertarian political philosophy of John Stuart Mill, holding that the government has no authority under any circumstances to intervene in essentially private matters such as drug consumption. We do believe, however, that marihuana prohibition is not support-able when the state has the burden of justifying interferences with personal liberty, as it must in a free society professing limited government.

Nor do we rely on pragmatism, by which we mean the sup-posedly value-neutral cost/benefit approach which is now so much in vogue; without a normative scale and a system of evaluative weights, the act of balancing yields purely subjective results weigh-ing apples (the potential dangers of marihuana use) against oranges (the costs of having a prohibition). Of course, our subjective weigh-ing would consider the costs outrageous and the benefits purely speculative.

The most compelling reason for modification or elimination of marihuana prohibition lies in its disastrous impact on the law as an institution. In this century American society has turned to law, particularly the criminal law, to serve a multitude of functions. An attitude has evolved that any behavior offending a prevailing senti-ment should be punishable by law. As a result, the legal system has been overextended until its value as a symbol has been magnified beyond its capacity to absorb disobedience. When the law is so readily employed as a symbol of disapproval, it will be easily wielded as a symbol of oppression. When a society so frequently relies on the legal system to control behavior, it will inevitably debase and weaken the influence of those institutions with the greatest capacity to mold desirable conduct.

The marihuana laws manifest the crisis of law that this society now faces. No criminal law can be fairly or effectively enforced unless it commands a popular consensus. Yet, the marihuana con-sensus evaporated as soon as the prohibition encountered the rigors of public dialogue. This is not to say that prohibition lacks the support of a popular majority. Our point is that the utility or propriety of a criminal law is not measured in votes but in shared values. Price controls and other regulatory activities derive their legitimacy from the support of a majority, however transient; but outright criminal prohibitions, particularly those involving private behavior, derive their legitimacy from congruence with more enduring normative precepts. The fact that one-third of the voting population of a major state actually registered electoral opposi-tion to marihuana prohibition definitively establishes the evapora-tion of the marihuana consensus. All other evidence establishes that uncertainty dominates the vast center of public opinion, while an increasingly smaller fraction of the public affirmatively supports the current prohibition. Undoubtedly, marihuana prohibition does not command the minimum amount of public support necessary to sustain and reinforce a criminal prohibition.

As a result the law suffers disobedience and ridicule. The crimi-nal justice system operates unfairly and without confidence. And the moral force of the criminal law wanes with each undetected or unenforced violation. Criminal justice simply cannot be achieved when conviction of a crime is perceived to be an injustice not only by the defendant but by large segments of the public and by the participants in the system itself.

Our society normally employs the criminal justice system to apprehend and punish those persons who have committed certain classes of acts which the general society believes to be deserving of punishment. We then utilize discretion at various points in the system to mitigate the implications of this presumptive judgment. Thus, depending on the culpability of the individual offender, we may forego prosecution or avoid a punitive sentence. Where the marihuana laws are concerned, however, the presumption has become precisely the opposite. Since the larger society generally does not view its marihuana offenders, who are overwhelmingly young, as morally culpable and deserving of punishment, the effort is now made to select from the 250,000 persons who are arrested each year, those few who should continue to be processed through the system.

Our police, our prosecutors, and our courts—sworn to uphold and enforce the laws of this nation—have been confronted with a population of lawbreakers alien to the ordinary process of the criminal justice system. Thus, the system has responded by 'con-torting itself. The discretion ordinarily exercised—whether or not to arrest, whether or not to prosecute, whether or not to convict, and whether or not to incarcerate—has been employed to determine which of these unlikely defendants should remain in the system: and as the need for discretion increases, so does the likelihood of selectivity and inequality.

The punitive instinct simply is not there. In most cases effort is directed not at securing the symbol of wrongdoing—the conviction—but instead to avoid stigmatizing the youthful or otherwise un-likely offender with a criminal record.

The criminalisation of marihuana consumption has severely wounded the legal system and has eroded the public confidence in criminal justice, which confidence is the essence of respect for law. For this reason the first priority of marihuana reform must be to repeal the prohibitions of possession for personal use, casual non-profit distribution and other consumption-related behavior. In our view, the resulting scheme of "partial prohibition" (as the mari-huana commission called it) is defensible—certainly over the short run. Nothing less than the decriminalisation of possession will con-stitute sufficient reform; even then, this would only bring mari-huana prohibition in line with the precedent of alcohol prohibition, during which forty-three states refused to intrude the criminal law into the life of the consumer.

To state it the other way, although we would prefer more fun-damental reform, we do believe that policy makers may rationally continue to prohibit, by criminal law, commercial distribution and other profit-making activities, and thereby resist any of the adver-sity that might conceivably be associated with widespread mari-huana use. We believe that the state may legitimately take an organic view of the society, one which is not tied to use patterns at the present time, and may anticipate the effect of legal and social changes in the future. Unlike the decision regarding the desirability of a criminal sanction at the user level, individual privacy and free-dom. of choice are not directly affected in this context. The key issue here is not the imposition of the law onto private behavior, but rather the preferable mode of availability of the drug. A pru-dent social policy planner would be remiss if he did not carefully speculate what any given social development might mean in the future- for the entire social fabric. He need not rest his decision on the present but may anticipate, speculate, and be judicious.

Under this approach the refusal to legalise and regulate distribu-tion of marihuana would be based primarily on preventive con-siderations, considerations not rooted in logic but in experience. The marihuana commission's recommendations reflect the basic conservatism expressed by Dr. Paton in his foreword to Dr. Nahas' defense of marihuana prohibition: "In discussing Cannabis and social policy, a major effort of the imagination is needed. If legislation is introduced which facilitates its use, one must try to assess how, in subsequent decades, the pattern of use would change, particularly in frequency, quantity and potency; and then one must try to assess the medical and social consequences for our own society."

In this connection, we emphasise that the legal environment has an extraordinarily blunt impact on the patterns of consumption of any social drug. The law is incapable of distinguishing among the patterns of drug-using behavior, and is therefore incapable of discriminating between harmless conduct on the one hand, and inten-sified or compulsive drug use on the other. Nor can the law be viewed in a vacuum, as an independent influence on decisions to initiate, continue, or terminate forbidden behavior.

These truths are particularly crucial to the details of marihuana reform. On the one hand, the criminal sanction for possession has probably embued marihuana with a symbolic attraction far exceed-ing its psychoactive virtues. Removal of this unnecessary and counterproductive prohibition might de-emphasise what is now a symbolic social issue, and let natural social forces take their course. There is fairly strong evidence that if this were to happen, mari-huana use, after an increase of use among the curious but hereto-fore reluctant, would eventually taper off. On the other lfand, a sudden decision to institutionalise availability of the drug through a regulatory scheme—no matter how strong society's disclaimers and discouraging labels might be—might initially serve to encourage people to use the drug when they would not otherwise do so. This might not have been the case fifty years ago and might not Be so five years from now. But it is probably true today. The very leap from an eliminationist, prohibitory policy to a scheme of regulation might imply social approval.

For this reason, we do not urge immediate adoption of a regula-tory scheme. We prefer evolutionary reform. Right now, decrim-inalization is a mandatory step. Nothing less will free the legal system of 250,000 criminals whom society wishes not to punish. Over the long term, however, decriminalization will not be enough. The preventive rationale is persuasive (and practical) as long as marihuana is so heavily laden with social meaning. After some other behavior emerges as the cutting edge of social change, marihuana use should be addressed on its own terms. Only then will it finally have been freed of the continuing effects of past policy. Only then can social and legal policy be formulated to comport with the public interest rather than the public imagination.

 

Our valuable member Richard J Bonnie has been with us since Thursday, 03 February 2011.

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