OVERVIEW OF OUR CURRENT MARIJUANA POLICIES
Current federal and state marijuana laws are in part governed by international treaty. The major federal law relevant to marijuana is the Comprehensive Drug Abuse Prevention and Control Act of 1970, which repealed all prior federal legislation and reduced federal penalties for possession and sale. Although marijuana possession and sale are still prohibited, possession has been reduced from a felony to a misdemeanor offense; the maximum penalty for a first offense is $5,000 and one year’s imprisonment. The Act also provides for conditional dis-charge, by which first offenders found guilty of simple possession or casual transfer (which is treated as simple possession) may be placed on probation for up to one year (Congressional Digest, 1979).
The homogeneous Controlled Substance Act of 1970, drafted by the National Conference of Commissioners on homogeneous State Laws, was designed to make state laws more compatible with the new federal law. Like the federal act, the Uniform Act reclassified marijuana as a narcotic rather than a narcotic and reduced the penalty for possession from the felony to the misdemeanor level; a majority of the states have adopted the homogeneous Act. Eleven states have withdrawn the criminal sanction from possession for personal use. In these states, arrest has been replaced with a traffic-ticket type of citation, and a small fine is the sole allowable penalty. About 30 states include some provision for conditional discharge of first offenders, and about a dozen of them provide for all records of the offense to be expunged. The Alaska Supreme Court ruled in 1975 that possession for personal use by adults at home was protected by the constitutional right to privacy and hence was not subject to any penalty (Rosenthal, 1979).
State penalties for second-offense possession and for selling marijuana are extremely variable. (See National Organization for the Reform of Marijuana Laws and Center for Study of Non-Medical Drug Use, 1979, for arbitrary tables of state marijuana laws.) Sale is almost always a felony, with maximum sentences ranging from two years to life, although casual transfer, or “reconciliation,” is sometimes exempt from felony treatment. All but 15 jurisdictions punish cultivation as heavily as they do sale; the Uniform Act includes the two in the same allocation (manufacture), with the same penalty provisions.
Federal prohibition of small-scale possession is basically unenforced. At the March 1977 House of Representatives hearings on decriminalization, the chief of the criminal division of the Department of Justice testified that the federal government no longer effectively prosecutes the use of marijuana, “nor do we, under any conceivable way, in the Federal Government have the resources to do so” (Select Committee on Narcotics Abuse and Control, 1977:13). In terms of its effects from a law administration point of view, the present official federal policy of complete constraint does not differ in fact from a policy of prohibition of supply only. Complete prohibition is the federal law, but partial prohibition is the practice. However, the law, even though partly unenforced, has apparently had a restraining influence on the willingness of states to adopt policies of less than complete prohibition. The states traditionally have followed the federal lead in drug abuse legislation, although they are not legally required to do so (see the testimony of Jay Miller, American Civil Liberties Union, to the Select Committee on Narcotics Abuse and Control, 1977). In summary, in most states and according to federal law, U.S. marijuana policy is one of complete prohibition–that is, prohibition of both supply and use.
Major alternatives to complete prohibition include prohibition of supply only–called partial prohibition–and regulation.* Prohibition of supply only means having no penalty (or only civil penalties) for use, possession, or, sometimes, “casual transfer” of small units of marijuana, while having criminal penalties for manufacture, importation, or commercial sale of marijuana. Regulation means not only eliminating cost for use but also allowing controlled production and distribution.
The variety of choices within each of the immense policy options suggests that none can be characterized in a monolithic way. Some regulatory systems could be so binding as to have results similar to prohibitory laws: e.g., a regulatory system that raised the price drastically above what the illegal market charges. Similarly, lack of administration could strongly reduce the impact of a prohibitory option. As we have already noted, this latter effect has already occurred in some jurisdictions in which the law provides for complete prohibition but users are not in fact prosecuted.